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Home Owner Associations and Planned Unit Developments Law and Practice: Forms

Comprehensive practical coverage on choosing the organization form; applicable federal, state and local law; zoning and subdivision issues; tort and contract liability; and more.
Publisher: Matthew Bender
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ISBN: 9781579116460
Publisher: Matthew Bender
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Comprehensive, practical coverage of the legal and economic aspects of home owner associations and planned unit developments.

  • Choosing the organizational form
  • Federal, state and local law; zoning and subdivision issues
  • Enforcement of covenants and restrictions
  • Operation and management, including problems of long-standing associations
  • Documentation, financing, marketing
  • Tort and contract liability
  • Casualty and liability insurance
  • Individual and association income tax treatment; principles of tax assessments
  • Voluntary termination or dissolution followingcasualty loss; eminent domain
  • Workouts and distressed developments
  • Illustrative offering plans
  • Index, updated regularly

    First published in 1977.

    5 Volumes; Looseleaf; updated with revisions.

  • Table of Contents

    Volume 6 Table of Contents

    PART I INTRODUCTION AND BACKGROUND

    CHAPTER 1 INTRODUCTION AND SCOPE OF THE TREATISE
    1.01 Introduction
    1.02 Scope and Organization of the Treatise

    CHAPTER 2 HISTORICAL DEVELOPMENT AND BASIC CONCEPTS
    2.01 Introduction
    2.02 Planned Unit Developments and Home Owner Associations in Context:
    Traditional Land Use Regulations and Land Ownership Regimes
    2.03 The Planned Unit Development’s Origins
    2.04 Origins and Development of the Home Owner Association
    2.05 Modern Planned Communities and Property Owners' Organizations: Definition by Regulation

    PART II CREATION AND MARKETING

    CHAPTER 3 CREATION OF PLANNED UNIT DEVELOPMENTS
    3.01 Introduction
    3.02 Characteristics of PUDs
    3.03 Creation of PUDs: State and Local Legislation
    3.04 Validity of PUDs

    CHAPTER 3A EXPANDABLE AND PHASED PLANNED UNIT DEVELOPMENTS
    3A.01 Introduction
    3A.02 Types of PUDs
    3A.03 Benefits of Separate Phases
    3A.04 Disadvantages of Separate Phases
    3A.05 Lender Considerations
    3A.06 Uniform Common Interest Ownership Act
    3A.07 Agency Regulations
    3A.08 Limitations Arising from Marketing Activities
    3A.09 Documents

    CHAPTER 4 CREATION OF THE HOME OWNER ASSOCIATION-BASIC DOCUMENTATION
    4.01 Preliminary Considerations
    4.02 Forms of Multiunit Ownership Compared
    4.03 Constituent Documents of the Home Owner Association
    4.04 Multi-Phase Developments
    4.05 Add-On Documents for Expandable Associations
    4.06 Party Wall Agreements
    4.07 Common Errors and How To Cure Them

    CHAPTER 4A RETIREMENT COMMUNITIES
    4A.01 The Fair Housing Amendments Act and Housing for Retirees
    4A.02 Fair Housing Acts in Selected States
    4A.03 Fair Housing Complaint Forms

    PART III OPERATIONAL ASPECTS

    CHAPTER 5 FINANCING
    5.01 Introduction
    5.02 Types of Loans
    5.03 Sources of Loan Funds
    5.04 Structuring Interim Loan
    5.05 Checklist of Points for Borrower’s Counsel to Negotiate for Interim Loan
    5.06 Interim Loan Documentation
    5.07 Checklist of Closing Documents for Interim Loan
    5.08 Lender's Property Insurance Requirements
    5.09 Lender's Title Insurance Requirements
    5.10 Lender's Requirements for Declaration of Covenants and Restrictions and Other Underlying Documentation
    5.11 Permanent Financing Secured Only by Individual Units
    5.12 Loans to Associations
    5.13 Leasehold Home Owners Associations and PUDs
    5.14 Financing of Commercial PUDs
    5.15 Lenders as Sponsors
    5.16 Financing of Troubled Projects and Loan Workouts
    5.17 Opinion of Borrower's Counsel
    5.18 Form of Commitment Letter-Selected Provisions
    5.19 Form of Assignment of Rights Under Offering Plan
    5.20 Form of Acknowledgment by Unit Purchasers of Assignment to Interim Lender
    5.21 Contract of Sale Clause Subordinating Unit Purchaser’s Rights to Interim Lender

    CHAPTER 5A WORKOUTS AND DISTRESSED DEVELOPMENTS
    5A.01 Identifying Projects in Distress
    5A.02 Lender's Response: Settlement, Enforcement or Both
    5A.03 Incentives for Lender to Agree to a Workout
    5A.04 Lender's Reporting Obligations
    5A.05 Loan Modifications
    5A.06 Traps for Lenders in Troubled Loans and How to Avoid Lender Liability
    5A.07 Deeds in Lieu of Foreclosure
    5A.08 Sales in Lieu of Foreclosure
    5A.09 Sale of Loans by Lender
    5A.10 Foreclosure
    5A.11 Bankruptcy
    5A.12 Role of the Home Owner Association
    5A.13 Offering Plans
    5A.14 Income Tax Planning
    5A.15-5A.l9 [Reserved]
    5A.20 Forms

    CHAPTER 6 FEDERAL REGULATION
    6.01 Introduction
    6.02 Interstate Land Sales Full Disclosure Act
    6.03 Truth-in-Lending Requirements
    6.04 The Real Estate Settlement Procedures Act
    6.05 Condominium and Cooperative Conversion Protection and Abuse Relief Act of 1980
    6.06 Securities Regulations
    6.07 Federal Regulation of Unfair or Deceptive Trade Practices
    6.08 The Magnuson-Moss Warranty-Federal Trade Commission Improvement Act
    6.09 Fair Housing Amendments Act of 1988
    6.10 Federal Regulation of Asbestos and Asbestos Containing Material
    6.11 Regulation of Direct Broadcast Satellite Dishes
    6.12 Federal Employment Taxes
    6.13 Federal Taxation of Home Owners Associations

    CHAPTER 6A ENVIRONMENTAL LIABILITY
    6A.01 Introduction
    6A.02 Liability Under Common Law
    6A.03 Liability Under Federal Law
    6A.04 Liability Under State Law
    6A.05 Special Regulation of Wetlands
    6A.06 Insurance Coverage
    6A.07 Environmental Audits

    CHAPTER 6B ANTIDISCRIMINATION LAWS
    6B.01 Introduction
    6B.02 The Thirteenth Amendment; Civil Rights Act of 1866
    6B.03 Executive Order 11063
    6B.04 Civil Rights Act of 1964
    6B.05 Civil Rights Act of 1968
    6B.06 Rehabilitation Act of 1973
    6B.07 Home Mortgage Disclosure Act of 1975
    6B.08 Equal Credit Opportunity Act
    6B.09 Fair Housing Amendments Act of 1988
    6B.10 HUD Rules and Regulations Implementing the Fair Housing Amendments Act of 1988
    6B.11 The Americans with Disabilities Act of 1990
    6B.12 Forms

    Volume 6A Table of Contents

    PART III OPERATIONAL ASPECTS (Cont’d)

    CHAPTER 7 OPERATION AND MANAGEMENT
    7.01 Introduction
    7.02 The Uniform Planned Community Act
    7.03 The Uniform Common Interest Ownership Act
    7.04 Maryland Homeowners Association Act
    7.05 Membership in the Home Owners Association
    7.06 Powers of the Home Owners Association
    7.07 Documentation
    7.08 Establishment of the Board of Directors
    7.09 Association Officers
    7.10 Permanent Functioning of the Board of Directors
    7.11 Illustrative Forms

    CHAPTER 7A REPRESENTING THE HOME OWNER ASSOCIATION
    7A.01 Home Owner Associations Require Guidance in Community Management
    7A.02 Scope of Representation Depends on Association's Needs and Objectives
    7A.03 Representation of a Home Owner Association Requires Thorough Knowledge of Underlying Documents
    7A.04 Powers and Duties of Association's Board of Directors Determined by Community Documents and Statutes
    7A.05 Board Has Authority to Create and Enforce Rules and Restrictions
    7A.06 Fair Housing Act Prohibits Discrimination
    7A.07 Association May Be Exposed to Liability for its Acts or Omissions
    7A.08 Developer Must Transfer Control of Community to Association
    7A.09 Master, Umbrella and Community Associations May Have Independent Community Documents
    7A.10 Violence Against Board Members or Officers
    7A.11 Associations and Free Speech
    7A.12 Nuisance and Community Associations

    CHAPTER 7B TELECOMMUNICATIONS AND HOMEOWNER ASSOCIATIONS
    7B.01 Introduction
    7B.02 Bulk Rate Cable TV and Telecommunications Service Contracts
    7B.03 Telecommunications Act/FCC Rules Preventing Enforcement of Restrictive Covenants that Restrict or Prohibit Small Video Antennas and Satellite Dishes
    7B.04 Conclusion

    CHAPTER 8 ENFORCEMENT OF COVENANTS AND RESTRICTIONS
    8.01 What Is a Covenant?
    8.02 A Covenant Is a Servitude Upon the Land
    8.03 Recorded Covenants Are Crucial to Many Common Interest Communities
    8.04 Restrictive Covenants Must Be Enforceable in Order to Be Effective
    8.05 The Declaration of Protective Covenants, Conditions, Easements, and Restrictions Functions as the Community’s Constitution
    8.06 Restrictive Covenants Address a Variety of Issues
    8.07 Historical Development of Covenants that Run with the Land
    8.08 What Is the Test for Determining When a Covenant Touches and Concerns the Land?
    8.09 There Must Be a Common Plan of Development
    8.10 Restrictive Covenants that Violate Civil Rights Laws and Other Statues Are Not Enforceable
    8.11 Historically Affirmative Covenants Were Controversial
    8.12 How Do Courts Interpret Covenants?
    8.13 Some Courts Have Applied the Business Judgment Rule When
    Reviewing the Actions of a Home Owners Association
    8.14 Unreasonable Enforcement of Covenants Can Lead to Substantial Liability Being Imposed on an Unincorporated Home Owners Association and Its Members
    8.15 Who Has Standing to Enforce Covenants and Restrictions?
    8.16 Voluntary Home Owners Associations May Face Difficulties in Enforcing Covenants
    8.17 The Enforcement of Some Restrictive Covenants May Be Precluded by Energy Conservation Statutes
    8.18 Restrictive Covenants Regarding Antennas and Satellite Dishes Must Comply with FCC Rules
    8.19 Covenants Restricting Religious Uses Are Generally Enforceable
    8.20 Covenants Frequently Prohibit or Limit the Posting of Signs
    8.20A Flags
    8.21 Covenant Granting Broad Discretion to an Architectural Review Committee Are Generally Enforced
    8.22 Restrictions Prohibiting Mobile Homes Are Often Interpreted to Preclude Manufactured Housing
    8.23 Covenants Allowing Only Residential Uses or Banning Commercial Uses May Not Preclude Child Care Operations
    8.24 Covenants Frequently Prohibit Nonresidential or Business Uses
    8.25 Group Homes May Be Barred by Covenants Allowing Only Single-Family Use
    8.25A Vehicle and Parking Restrictions
    8.25B Guest Restrictions and Corporate Ownership
    8.25C Smoking Bans
    8.25D Leasing
    8.26 There Are Several Remedies Available for Violating Restrictive Covenants
    8.27 Defenses to Enforcement of Covenants
    8.28 Non-Judicial Enforcement and Dispute Resolution
    8.29 Covenants Usually Address Attorneys Fees
    8.30 Home Owners Associations Face Possible Tort Claims After Suing Home Owner Members
    8.31 Sample Provisions for Declaration of Covenants and Restrictions
    8.32 Sample Notices

    CHAPTER 9 ENFORCEMENT OF MONETARY OBLIGATIONS
    9.01 The Need for Assessments
    9.02 Enforceability of Assessments Under Common Law
    9.03 Enforceability of Assessments Under Statutes
    9.04 Review of the Association's Powers
    9.05 Uniform Enforcement Guidelines
    9.06 Interest, Late Charges, and Attorneys' Fees
    9.07 Application of Payments
    9.08 Usury
    9.09 Suspension of a Delinquent Owner's Privileges
    9.10 The Federal Fair Debt Collection Practices Act
    9.11 Initial Demands for Payment
    9.12 Acceleration of Assessments
    9.13 Partial Payments and Bad Checks
    9.14 Placing a Lien on the Property
    9.15 Litigation to Foreclose the Lien and for Money Judgment
    9.16 Bankruptcy of the Debtor and Its Effect on Collection
    9.16A Bank Foreclosures
    9.17 Forms

    CHAPTER 9A DEVELOPER LIABILITY: TORT CLAIMS; EXPRESS AND IMPLIED WARRANTIES; WARRANTY PROGRAMS
    9A.01 Claims Against Developers Generally Involve Alleged Construction Defects, Marketing Misrepresentations, or Breach of Fiduciary Duties to Unit Owners
    9A.02 Standing to Assert Claims Against Developers
    9A.03 Tort Claims for Construction Defects
    9A.04 Implied Warranties Under Common Law
    9A.05 Statutory Warranties
    9A.06 Express Warranty Programs
    9A.07 Liability During Development and the Period of Developer Control
    9A.08 Damages and RemediesCHAPTER 10 STANDING TO SUE AND LIABILITY OF THE HOME OWNER ASSOCIATION AND ITS MEMBERS
    10.01 Capacity to Sue Versus Standing to Sue
    10.02 The Common Law Did Not Allow Unincorporated Associations to Sue or Be Sued
    10.03 Many Jurisdictions Have Statutorily Altered the Common Law Regarding Unincorporated Associations
    10.03A The Association Documents May Limit Standing
    10.04 The Doctrine of Associational or Representational Standing Permits Associations to Pursue Claims in Federal Court
    10.05 When Can the Defendant or the Court Raise the Issue of Standing?
    10.06 Issues Concerning Standing Affect Potential Liability
    10.07 An Unincorporated Association’s Standing to Sue and Be Sued
    10.08 The Uniform Common Interest Ownership Act Does Not Preclude Suit Against the Association by a Unit Owner
    10.09 The Uniform Unincorporated Nonprofit Association Act Addresses Standing and Liability Issues
    10.10 When Does an Association Have Standing to Sue the Developer?
    10.11 The Association Should Have Standing to File a Declaratory Action Regarding Its Governing Documents
    10.12 An Association May Lack Standing if Ownership of Real Estate Is Necessary to File Suit
    10.13 Does the Association Have Standing to Enforce Restrictive Covenants?
    10.14 A Class Action May Be an Option if the Association Lacks Standing to Sue
    10.15 When Does a Home Owners Association Have Standing to Pursue Zoning Matters?
    10.16 An Association Does Not Have Standing to Contest Assessments of the Units by Taxing Authorities
    10.17 An Association May Not Have Standing Under the Interstate Land Sales Full Disclosure Act
    10.18 An Association May Have Standing to Pursue a RICO Claim
    10.19 The Individual Home Owner Can Incur Liability with Respect to the Common Areas
    10.20 A Member Has Potential Liability under Contract Law
    10.21 The Individual Home Owner May Be Liable for the Unincorporated Association’s Improper Conduct of Its Business
    10.22 Liability of the Home Owner Association
    10.23 The Land Trust May Reduce the Risk of Liability

    CHAPTER 11 CASUALTY, LIABILITY AND TITLE INSURANCE
    11.01 Introduction
    11.02 Association Insurance Coverage
    11.03 Individual Home Owner Coverage
    11.04 Officers and Directors' Insurance
    11.05 Fannie Mae Insurance Requirements
    11.06 Uniform Planned Community Act
    11.07 Uniform Common Interest Ownership Act
    11.08 Effect of the American Land Title Association Policy Form
    11.09 Claims

    CHAPTER 11A PROBLEMS OF LONG-STANDING HOMEOWNER ASSOCIATIONS
    11A.01 Introduction
    11A.02 Need for Long-Range Planning
    11A.03 Restructuring the Long-Standing Homeowner Association
    11A.04 Keeping the Long-Standing Association Adequately Insured
    11A.05 Maintenance and Repairs
    11A.06 Embezzlement
    11A.07 Elderly and Disabled Residents
    11A.08 Maintaining Security
    11A.09 Additional Checklists and Sample Forms
    PART IV TAXATION

    CHAPTER 12 INCOME TAX TREATMENT OF THE ASSOCIATION
    12.01 Introduction
    12.02 The Tax Classification of the Organization
    12.03 Taxation of the Homeowner Association
    12.04 Internal Revenue Code, Regulations and Forms

    CHAPTER 13 INCOME TAX TREATMENT OF THE INDIVIDUAL OWNER
    13.01 Income Tax Deductions Available to the Individual Owner
    13.02 Sales and Exchanges
    13.03 Nonrecognition Transactions
    13.04 Tax Treatment of Installment Sales

    CHAPTER 14 REAL ESTATE TAX ASSESSMENT
    14.01 Real Property Tax Assessment Principles
    14.02 Real Estate Tax Treatment of the Association
    14.03 Statutory Provisions Relating to Double Taxation
    14.04 Real Estate Tax Treatment of the Participating Home Owner
    14.05 Procedural Aspects of Real Estate Tax Review Proceedings
    14.06 Real Estate Tax Representations of HOA and PUD Developers
    PART V PROJECT TERMINATION

    CHAPTER 15 DISSOLUTION OF THE PROJECT
    15.01 What Law Determines the Consequences of Terminating the Project and Dissolving the Home Owners Association?
    15.02 Termination Under the Common Interest Ownership Act and the Uniform Planned Community Act
    15.03 Eminent Domain Under the Uniform Common Interest Ownership Act and the Uniform Planned Community Act
    15.04 Eminent Domain in States Not Adopting Either Uniform Act
    15.05 Termination Triggered by Destruction Under the Uniform Common Interest Ownership Act or the Uniform Planned Community Act
    15.06 Condominium Statutes May Offer Guidance
    15.07 Voluntary Termination of a Project
    15.08 Model Nonprofit Corporation Act
    15.09 Uniform Unincorporated Nonprofit Association Act
    15.10 Involuntary Dissolution Due to Nonpayment of Fees or Filing of Reports with the State
    TABLE OF CASES
    INDEX

    Volume 6B Table of Contents
    Omitted

    Volume 6C Table of Contents
    Appendix B FNMA FORMS AND DOCUMENTATION
    Appendix C HOMEOWNER ASSOCIATION AND PLANNED UNIT DEVELOPMENT OFFERINGS AND DECLARATIONS

    Volume 6D Table of Contents
    Appendix C HOMEOWNER ASSOCIATION AND PLANNED UNIT DEVELOPMENT OFFERINGS AND DECLARATIONS (Cont’d)