Amended or updated restrictions - do they require only majority approval?

[K9Protector]

What is the name of your state? Missouri

When I moved into our neighborhood we had original recorded restrictions and an recorded amendment to some of these restrictions.

After we moved in, the homeowners came up with new restrictions to supercede the previously two recorded documents. Some were identical to the originals and some were new or modified versions.

This new document did not receive a unanimous vote.....

After doing some research I have come across several court cases in which it states that new or additional burdens can not be imposed without 100% agreement. Such court cases include: Berkley_v_Ladriere 108 S.W.3d 736 (Mo. App. 2003). and Webb_v_Mullikin No. 83735 (Mo. App. E.D. June 29, 2004).

I am trying to find out what is accurate.... if these newly recorded restrictions are now the restrictions that must be followed....

Thanks

 

[HomeGuru]

What is the name of your state? Missouri

When I moved into our neighborhood we had original recorded restrictions and an recorded amendment to some of these restrictions.

After we moved in, the homeowners came up with new restrictions to supercede the previously two recorded documents. Some were identical to the originals and some were new or modified versions.

This new document did not receive a unanimous vote.....

After doing some research I have come across several court cases in which it states that new or additional burdens can not be imposed without 100% agreement. Such court cases include: Berkley_v_Ladriere 108 S.W.3d 736 (Mo. App. 2003). and Webb_v_Mullikin No. 83735 (Mo. App. E.D. June 29, 2004).

I am trying to find out what is accurate.... if these newly recorded restrictions are now the restrictions that must be followed....

Thanks

**A: the CC&R's govern how a private HOA rules on votes and what % constitutes approval. If the rules state a restriction is passed upon 70% yes vote, then there is no requirement to obtain a unanimous or 100% yes vote.

 

[K9Protector]

Thanks for your input....

In Ladriere vs Berkeley Lane Association, the Missouri Court of Appeals ruled: "
Language in a restrictive covenant authorizing property owners subject to the covenant to modify, alter or amend the covenant by a two-thirds vote did not authorize the addition of new burdens or restrictions on the use of land subject to the covenant. Accordingly, the trial court erred in enforcing an amendment which took away Ladriere's right to build a residence on his property."

And in Webb vs Mullikin, the Missouri Court of Appeals ruled: "Eight property owners in a St. Louis County subdivision brought an action seeking to enjoin the subdivision's three trustees from recording an amended restrictive agreement. The property owners also sought a determination that the amended restrictive agreement was null and void. The court granted summary judgment for the trustees, and the property owners appeal.
REVERSED AND REMANDED.
Division holds: The court erred in granting summary judgment for the trustees because a majority of lot owners could not add new or different covenants in an amended agreement not found in the restrictive agreement that the majority sought to amend."

Also in Webb vs Mullikin the MO Court of Appeals refers to Van Deusen v. Ruth , 125 S.W.2d 1 (Mo. 1938), where the court considered the enforceability of an amendment to a subdivision's 1925 restrictive agreement. The 1925 agreement stated: "All or any of the foregoing provisions or restrictions may be modified, amended, released or extinguished at any time after ten (10) years by written instrument executed, acknowledged and recorded as required by law for instruments affecting real estate, by the owners of seventy-five per cent (75%) of the total number of front feet embraced in this indenture, and for this purpose the frontage shall be determined as set forth in Paragraph Second of this instrument, provided, however, that the Company, its successors or assigns promoting this subdivision, or its or their assigns who shall not be bona fide purchasers of lots therein, shall not be privileged to join in such written agreement." The courts said "As in those two cases, the amendment language here does not give a majority of the lot owners the power to add new burdens not found in the 1990 agreement. We interpret the phrase "may amend these restrictions" as permitting a majority of lot owners to change existing covenants but not to add new or different covenants, as is the case with the amended agreement. " You can view this case at http://www.courts.mo.gov/courts/pub...6256ebe0070bf66?OpenDocument&Highlight=0,Webb

I agree that HOA and their CC&R's need to be looked at seriously by our own Local, State, and/or Federal Governments since these CC&R's appear to give the HOA unlimited power, above that of our own Government.... since they are considered a private entity. However, it appears that CC&R and HOA can and do destroy private homeowners lives and livelihoods.