The paragraphs below are copied directly from the covenants as posted on the POACRE website.
Your argument is, as I understand, that because the phrase “for each lot” exists in the Road Fee paragraph and not in the M&O paragraph the M&O can only be applied once to each property owner. I disagree.
The reason I disagree is twofold. First, the M&O paragraph also goes on to say “these fees shall constitute a lien against the property” which distinctly implies that the author meant one property one fee and that the fees are applied on a property basis and not a personal basis.
Certainly if a multiple property owner owed a fee, it would be very difficult for the POACRE to decide which lot they could legally file a lien against. By that fact, the fee is intended to be applied per lot.
Secondly, I disagree because the two paragraphs were authored by two different people. The Roads Fees paragraph was constructed by the original developer and exists verbatim in the original covenants text from the 1960’s. The M&O paragraph was added by the POACRE Board in 1988 at takeover. Some say illegally because there apparently was no proper vote of the membership, and there are several differing versions that were paraded around that are quite different than this “recorded” version, but that is another argument.
Furhermore, there is a total absence of language to suggest that those fees shouldn’t be collected on a per lot basis. The POACRE Board of 1988 allowed for unusual cases and built in for themselves an ability to “waiver” in certain circumstances based on a vote of the membership.
If you consider that the phrase “for each lot” is simply a redundant term, you can clearly see that the author in 1988 was merely conserving words.
There is no need for a covenant change for this item. It just takes the guts to enforce it properly. It would be easier to survive a legal challenge than it would be to get the covenant changed. Besides, the membership would probably go for your change if the Board had actually tried to do the right thing first.
• MAINTENANCE AND OPERATIONS FEE: Each lot purchasers or owner shall pay to the Corporation in advance by May 25th of each year an annual maintenance and operations fee (formerly call annual Chesapeake Ranch Club dues) for the operation of the common facilities and to provide security services. If not duly paid, these fees shall constitute a lien against the property enforceable by foreclosure under the Maryland Contract Lien Act; however, such lien shall be subordinate to any prior or subsequent, VA, FMHA, or FHA lien. The annual maintenance and operations fee may be changed by a majority vote of the owners provided that membership contracts of the former Chesapeake Ranch Club, Inc., which specified fixed dues and fees will not be changed without written approval of the individual owner.
• ROAD FEE: Each lot purchaser or owner shall pay to the Corporation in advance by July 1st of each year an annual fee for each lot, for the construction, maintenance and repair of all roads in the subdivisions. Said fee shall be $86.40 for the year beginning July 1, 1987. K The fees may be increased yearly thereafter by the same percentage that the price for March increases over the price index for March of the previous year. Prior to the conveyance of title to a lot, the Corporation may add the unpaid road fees to any unpaid purchase price of the lot; in the event of nonpayment after conveyance, such unpaid fees shall constitute a lien against the property enforceable by foreclosure under the Maryland Contract Lien Act; however, such lien shall be subordinate to any prior or subsequent, VA, FMHA, or FHA lien. (“Price Index” means United States Consumer Price Index. All items for the “Metropolitan Washington, D.C. Areas)
Your argument is, as I understand, that because the phrase “for each lot” exists in the Road Fee paragraph and not in the M&O paragraph the M&O can only be applied once to each property owner. I disagree.
The reason I disagree is twofold. First, the M&O paragraph also goes on to say “these fees shall constitute a lien against the property” which distinctly implies that the author meant one property one fee and that the fees are applied on a property basis and not a personal basis.
Certainly if a multiple property owner owed a fee, it would be very difficult for the POACRE to decide which lot they could legally file a lien against. By that fact, the fee is intended to be applied per lot.
Secondly, I disagree because the two paragraphs were authored by two different people. The Roads Fees paragraph was constructed by the original developer and exists verbatim in the original covenants text from the 1960’s. The M&O paragraph was added by the POACRE Board in 1988 at takeover. Some say illegally because there apparently was no proper vote of the membership, and there are several differing versions that were paraded around that are quite different than this “recorded” version, but that is another argument.
Furhermore, there is a total absence of language to suggest that those fees shouldn’t be collected on a per lot basis. The POACRE Board of 1988 allowed for unusual cases and built in for themselves an ability to “waiver” in certain circumstances based on a vote of the membership.
If you consider that the phrase “for each lot” is simply a redundant term, you can clearly see that the author in 1988 was merely conserving words.
There is no need for a covenant change for this item. It just takes the guts to enforce it properly. It would be easier to survive a legal challenge than it would be to get the covenant changed. Besides, the membership would probably go for your change if the Board had actually tried to do the right thing first.
• MAINTENANCE AND OPERATIONS FEE: Each lot purchasers or owner shall pay to the Corporation in advance by May 25th of each year an annual maintenance and operations fee (formerly call annual Chesapeake Ranch Club dues) for the operation of the common facilities and to provide security services. If not duly paid, these fees shall constitute a lien against the property enforceable by foreclosure under the Maryland Contract Lien Act; however, such lien shall be subordinate to any prior or subsequent, VA, FMHA, or FHA lien. The annual maintenance and operations fee may be changed by a majority vote of the owners provided that membership contracts of the former Chesapeake Ranch Club, Inc., which specified fixed dues and fees will not be changed without written approval of the individual owner.
• ROAD FEE: Each lot purchaser or owner shall pay to the Corporation in advance by July 1st of each year an annual fee for each lot, for the construction, maintenance and repair of all roads in the subdivisions. Said fee shall be $86.40 for the year beginning July 1, 1987. K The fees may be increased yearly thereafter by the same percentage that the price for March increases over the price index for March of the previous year. Prior to the conveyance of title to a lot, the Corporation may add the unpaid road fees to any unpaid purchase price of the lot; in the event of nonpayment after conveyance, such unpaid fees shall constitute a lien against the property enforceable by foreclosure under the Maryland Contract Lien Act; however, such lien shall be subordinate to any prior or subsequent, VA, FMHA, or FHA lien. (“Price Index” means United States Consumer Price Index. All items for the “Metropolitan Washington, D.C. Areas)
