Matthew Winton's Oklahoma Condominium & Homeowner Associations Blog

New FHA loan rules for Oklahoma unit ownership estates (condominiums)

One result of the recent real estate troubles has been a heightened scrutiny of condominium loans. A result of this scrutiny is FHA revising, and re-revising, and putting on hold the rules that apply to approval of mortgages for condominium developments. Under the proposed rules, all FHA approvals for condo projects will expire every two years. Another aspect is some percentage limitation of FHA loans within the development, although the actual percentage doesn't seem to be fixed as yet. Also, the new rules will contain some minimum owner-occupancy requirement, which will be good news to many in projects that have started down the path of investor-controlled developments.

 

For a review of the initial rule, and then the subsequent rule, see Mortgagee Letter 2009-46A and Mortgagee Letter 2009-46B.

 

Matthew L. Winton, Oklahoma community association lawyer.

If your community association operates a swimming pool or spa, you should already know about the Virginia Graeme Baker Pool and Spa Safety Act

If your community association does operate a swimming pool or spa and you are not aware of the federal Virginia Graeme Baker Pool and Spa Act, you need to familiarize yourself with the Act and its mandatory requirements. The Virginia Graeme Baker Pool and Spa Act (named after former secretary of state James Baker's granddaughter who drowned because of a spa drain in 2002) was adopted in 2007 and is effective for all "public" pools and spas December 19, 2008. The Act includes condominium, homeowner association, and neighborhood swimming pools within the definition of public. The pool/spa must be compliant with the act before opening. Essentially, the Act requires existing pools to be retrofitted with certain drain anti-entrapment devices, and new pools must be constructed with such devices. The Act specifies the minimum requirements.

Should a pool/spa open in violation of the Act, severe civil penalties may be levied against the community association. Contact a qualified pool technician versed in the requirements of this Act before opening your community association pool this season.

Matthew L. Winton, community association attorney

Handouts for February 21, 2009 Edmond Summit – HOA Legal Issues Breakout sessions

On February 21, 2009 from 8:30 a.m. to noon, Edmond Neighborhood Alliance will be hosting their annual Edmond Summit at the MAC at Mitch Park in Edmond, Oklahoma, which is co-sponsored by the City of Edmond and Edmond Economic Development Authority. I will present two 40-minute breakout sessions on community association issues. Time will be saved for audience questions and we will discuss topics such as:

• Amending governing documents
• Conflict resolution
• Collecting assessments
• How to enforce structural and use restrictions

Handouts for the two breakout sessions may be viewed here.

Matthew L. Winton, Esq.

Vaughn, Winton & Clark^pllc

3233 East Memorial Rd., Suite 103

Edmond, Oklahoma 73013

mlw@vwlaw.net

405.478.4818 office

405.478.4819 fax

HOA Websites and Communications Services

For Oklahoma community associations looking for a web development/presence and communications service, Joy and Judy with okhoa.org provide such services. From their website:

"A website is like having a receptionist that never goes home, who doesn’t need time off, who doesn’t expect overtime pay, who will give out consistent, accurate information 24/7, professionally represents you to the public, never loses his/her patience, always a smile, and does this for an unbelievably low salary!

OK Hoa will provide you with a dynamic website that does this and much more!"

A link to their website is provided here.

Matthew L. Winton, Oklahoma homeowner association lawyer.

Vaughn, Winton & Clark, PLLC - Oklahoma attorneys

Developer transition article

For those interested or approaching the issue of transition time in a real estate development/homeowners association/condominium association, this 51 page article provides a wealth of information and examples.

Matthew L. Winton, Oklahoma homeowner association lawyer

Does an HOA board have to comply with the Fair Debt Collections Practices Act?

The topic of the Fair Debt Collections Practices Act came up at the recent OBA webcast on Oklahoma homeowner association law. Specifically, the question was:

Q - Do HOA boards have to comply with the Fair Debt Collections Practices Act?

A - The FDCPA is found at 15 USCA 1692 et. seq. By definition, a board member or officer of an HOA collecting the HOA's own debt is not a "debt collector" under the FDCPA. 15 USCA 1692(a). However, if for some reason the HOA sought to collect its own debt under an assumed name which would tend to make a consumer believe a third party sought to collect a debt, the HOA could be defined as a "debt collector" under the FDCPA - why an HOA would ever do this is beyond me.

Matthew L. Winton, Oklahoma homeowner association lawyer

Undefined terms in covenants

During the recent OBA webcast on Oklahoma homeowner association law, I was asked the following question:

Q - If the governing documents do not offer a definition of a particular term, such as "outbuilding," where would one go to find such a definition?

A - It may be that the context of the word used in the governing document suffices to remove any ambiguity in the intent of the drafter. Of course, governing documents should not only define key terms, but also use such definitions consistently throughout the patchwork of governing documents.

Courts will often look to Black's Law Dictionary or Webster's Dictionary for the plain meaning of words. If these efforts fail, it may be that there exists an ambiguity in the governing document, which must be resolved by resort to determining the drafter's intent, which may be satisfied by testimony or an affidavit from the developer or the drafting attorney.

Matthew L. Winton, Oklahoma 

Creation versus Organization of an HOA

This seems to be a popular issue this week. At both the OBA webcast this past Wednesday and at today's luncheon for the Central Oklahoma Association of Legal Assistants, I was asked about when an HOA is created.

A - It is my opinion that an HOA is created when "creation language" is filed of record with the county clerk. For example, the plat to an addition may provide for common areas and contain a plat restriction like, "All common areas shall be maintained by the property owners association. Each person owning a lot shall be a member of the association." While this language would be what I call barebones, I believe it sufficient to put a buyer on notice that there is an association in existence and that owners must be members of the association.

60 OS 852 uses the term "formed" for the association. It requires the association to be "formed" by the filing of a document specifying the obligations of owners to the association in a filed, acknowledged document with the county clerk. A plat or covenants filed with the county clerk containing specific membership and administration language serves this purpose.

Matthew L. Winton, Oklahoma homeowner association lawyer.

Foreclosure on attorneys fee judgment

During the recent OBA webcast on Oklahoma homeowner association law, I was asked the following question:

Q - If an HOA has sued an owner and received a judgment for attorney's fees, can the HOA file a lien and foreclose on that lien?

A - Generally, no. Unless the governing documents provide that fees and costs of the Association are lienable charges, the HOA must collect its judgment against the owner just as it would collect any other judgment. Homestead (presuming the owner lived on the property) would prevent the HOA from executing on the judgment. However, if the judgment was against an owner and the owner's property within the HOA was a rental, then the HOA could go after the property free from homestead protection.

The HOA could seek collection of its judgment through the typical courses of collection: hearing on assets, wage garnishment, and bank garnishment.

Matthew L. Winton, Oklahoma property owners association lawyer.

Resurrecting expired covenants

During the recent OBA webcast on Oklahoma homeowner association law, I was asked the following question:

Q - If a set of covenants for an older neighborhood has expired, how can the residents create new covenants to control structural restrictions in the future?

A - It may be that the covenants did not actually expire. Check the covenants for language such as, "These covenants shall run with the land for a period of 20 years, after which time they shall extend for successive 10 year periods." This language does not cause expiration, but rather continuation without interruption except if a certain percentage of owners amend the covenants.

If the covenants have in fact expired or terminated, the owners within the addition will have to vote to create a new set of covenants. These covenants will have to be approved by each owner whose property will be subject to those covenants. Their approval should be designated in writing before a notary and be filed in the local county clerk's office along with the new set of covenants.

Matthew L. Winton, Oklahoma property owners association attorney.