Golf-course-loving HOA residents concerned about possible closure
Q. Our HOA has a golf course. There is a concern that the golf course property may be permanently closed and that homes would be built on it. This would adversely affect a number of homeowners within the HOA that paid premium prices for golf course locations as well as the attraction of living within a golf course community.
Do the owners in the HOA have a right to view all of the legal agreements between the golf course and the HOA to determine the exact nature of the agreement and whether this conversion could occur without approval from the owners? Also, would an agreement of this nature establish minimum standards around course upkeep?
A. Typically, when an HOA is developed in conjunction with or surrounding a golf course facility or a country club, the local governmental authorities will require that various covenants and/or agreements are in place regarding the relationship between the two entities. These agreements and/or covenants should be recorded with the County recorder of deeds against both properties. As far as the HOA is concerned, these types of agreements and/or covenants are generally considered part of the governing documents for the homeowners’ association.
If your HOA is subject to the Common Interest Community Association Act, the act requires the board to maintain and make available certain documents upon request from an owner. These would include copies of any agreements or declarations of covenants between your association and the golf course facility. Under Section 1-30(i) of the Act, the board is required to maintain copies of the recorded declarations, other community instruments, recorded covenants and bylaws and any amendments, articles of incorporation, etc. The board is also required to make them available for examination and copying at convenient hours of weekdays by any member or unit owner in a common interest community subject to the authority of the board.
Where a request for records under subsection 1-30 is made in writing to the board or its agent, failure to provide the requested record or to respond within 30 days shall be deemed a denial by the board. The board can charge a reasonable fee for the cost of retrieving and copying the records properly requested and should tell the owner before incurring the costs.
If the board fails to provide records properly requested within the time period provided, the member may seek appropriate relief and shall be entitled to an award of reasonable attorney's fees and costs if the member prevails and a court finds that such failure is due to the acts or omissions of the board of directors.
Therefore, it is imperative for a community association to act quickly if they receive such a records request. Most board and management companies will have the association’s attorney review the request for validity and content.
If you want to avoid waiting for the association to provide the paperwork to you at a cost, you can check with the county recorder of deeds and obtain copies of declarations, by-laws, easement agreements, cost-sharing agreements or other recorded covenants that address the relationship between your HOA and the golf course.
Agreements or covenants between an HOA and a golf course facility will typically address the maintenance of shared-property, cost-sharing arrangements, minimum standards for maintenance of the other property, etc. Additionally, the agreement or covenants may give either party voting rights or approval over the significant alteration of the other property. You should also check with your village or city. Typically, significant alterations in the nature of the property within a planned development such as yours will require village board approval.
• Matthew Moodhe is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.