Oklahoma Homeowner Association Law Oklahoma Homeowner Association LawThe law of Homeowners Associations (HOAs) and Property Owners Associations (POAs) is in a state of evolution in Oklahoma. In 1975, the Oklahoma Legislature enacted the "Real Estate Development Act" (REDA). Developments and HOAs created prior to 1975 are not covered by the Act. For Developments and Associations created after the enactment of REDA, the evolution of the law has been piecemeal.
When a real estate development is created, the developer will record a plat, which contains a legal description and map of the area to be developed. The plat also contains the Conditions, Covenants and Restrictions (CCRs) that are bound to the property. All persons who purchase lots in the development are bound by the CCRs. One of the provisions will usually create an association, and specify whether or not the association will be mandatory. Unfortunately, the developers rarely consider the operation of the HOA in the formulation of the CCRs. Consequently, many times associations are stymied by the statutes or the CCRs in trying to effectively operate.
One of the ways that many Associations have attempted to deal with this problem is by drafting new provisions into the Association By-Laws. Unless a By-Law provision is within the authority of the Association granted by the CCR's, it is subject to being held void and unenforceable. Generally, a reasonable late fee for delinquent assessments can be implied from the general power of the Association to set and collect the assessments. Further assessments, such as fines, are more suspect, and if not expressly provided in the CCR's, will rely on the specific nature of the fine and the manner or enforcing it for certain violations.
The By-Laws are a set of rules that control the daily operation and governance of the Association. They are completely servient to the CCR's, and may only be enforced to the extent that they are allowed by the CCR's. he By-Laws must be adopted by the Directors or Officers of the Association, and approved by vote at a regularly scheduled meeting of the Board, or at a special meeting if notice is given to all members of the date and time of the special meeting and the nature of the action being considered at the meeting. Only actions that are within the scope of of subjects contained in the Notice may be adopted at a special meeting, but any measure adopted without notice can be ratified by the Board at a regular meeting. It is advisable to make sure that members are periodically notified of the dates and times of regular meetings.
In the past 20 years, the mandatory HOA has become increasingly popular. In 2000, a state legislator certified a question to the Oklahoma Attorney General - Can a voluntary HOA amend it's covenants to become a mandatory one? The answer led to the amendment of a state statute that provided a procedure to make a voluntary association mandatory.
Amending the CCRs becomes increasingly difficult the more heavily occupied the development is. Residents in newer neighborhoods are encouraged to read the CCRs carefully and consider consulting competent counsel who can advise the residents regarding possibly amending the CCRs while the developer still has control.
The CCRs will also contain a provision for "transition", the process of conveying control to the association. This is another area where consulting a competent attorney can be invaluable.
The CCRs are the ultimate authority for what powers the Association will have. Many association officers place too much importance on the by-laws of the Association. The by-laws cannot give the Association any authority not expressly contained in the CCRs.
One of the current issues facing mandatory HOAs is the concept of imposing fines for covenant violations. There is currently no clear answer in Oklahoma law as to whether or not this is permissible, but it is clear that if the authority to levy a fine is not contained in the CCRs, then there is no authority to impose them, and it could well be illegal to attempt to do so.
Amending the CCRs is possible, but the exact procedure will depend on several things. First, most CCRs contain a duration provision that states that the CCRs are good for a number of years, and then automatically renewed for successive periods after that. Oklahoma law allows for the amendment of the CCRs based on the length of time that the provisions have been in existence. Any amendment to the CCRs will require the affirmative vote of a specified percentage of the properties in the development, which could range from simple majority to 100% approval.
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