Government? Or not government?
Most new communities these days are governed by homeowners associations or property owners associations. These are made up of homeowners who have collectively signed restrictive covenants as a condition of home ownership. Those covenants require certain behavior on the part of each member. Monthly or annual dues are collected to maintain common areas or provide for services such as trash collection or cable tv delivery. Each HOA or POA calls for the election of board members and officers who are given the power to take actions to make sure rules and covenants are followed. The board also has the ability to assess fines or other penalties, up to and including the confiscation of an entire property without reimbursement. For all intents and purposes, Homeowners Associations are mini-governments or quasi-governments which exist outside of most prevailing law. The magic that lets this happen is that the typical HOA is a corporation, a non-profit PRIVATE corporation. In other words, it’s equivalent to a private members-only country club. Homeowners are not considered to be homeowners or taxpayers or citizens, but rather MEMBERS. As willing MEMBERS they have agreed to be governed by the elected board as it administers the restrictive covenants that were WILLINGLY signed by all members.
But just like private non-profit corporations, rules are subject to interpretation. Rules can be changed. And many HOA members in many states have made amazing discoveries about the rights they thought they once had. For example:
Restrictions in selling or renting the house
You may think you’re that as the owner of your home you can sell it whenever you wish. Well, you may discover that your neighbors are partners in your home ownership and they will have a say in who you select as the buyer. In some communities, you may only sell it to a family consisting of two natural married adults. Blatant code for no gays, lesbians or singles.
You may only sell it to people over a certain age, as in age-restricted retirement communities.
You may not be able to sell it to a family with grandchildren (no overnight stays lasting longer than two consecutive nights)
You may also be stunned to discover restrictive covenants outlawing blacks, orientals, jews and other minorities. Federal law prohibits such discrimination, but the ongoing existence of such covenants leaves a powerful and not-too-subtle message. (I’ll have a whole lot more on this subject in my upcoming book Neighbors At War: The Creepy Case Against Your Homeowners Association.
Landscaping Restrictions
Every person is an individual with different tastes, desires, likes and dislikes. Life might be easier if you could only buy one color of carpet, one style of lampshade or one kind of flower. But we ARE our differences. Human nature rebels against regimentalism. Still, your neighbors are your partners and they want you to abide by certain rules. Properly grown grass, no brown spots, no weeds, no grass longer than 1 and 1/2 inches tall. No pansies, no more than a prescribed number of rose bushes, one neatly trimmed tree planted only on the left side of the sidewalk. All landscaping plans submitted to the architectural control committee. Believe it or not, there are thousands of lawsuits against homeowners who’ve violated one of the above restrictions (Again, lots more in Neighbors At War: the Creepy Case Against Your Homeowners Association)
No parking on the street
This one leads to more arguments, lawsuits and fisticuffs than almost any other. Land developers were given the right to jam more dwelling units into smaller spaces in exchange for creating severe parking restrictions. So, that overnight guest of yours? Forbidden! The birthday party for your youngster? Give it up, unless guests park in some nearby supermarket lot. But even worse? Dictatorial board members hire towing companies to snatch cars the second a delivery is being made to your house, or the moment an innocent guest drops by to say “hi.” Ambitious towing companies have been known to slip an occasional ‘C note’ to the first board member who calls them. Even worse, some communities hire two truck drivers to constantly patrol the streets snatching cars. It can cost a couple hundred bucks to get your car back.
No parking on your own driveway
Seriously! Some Homeowners Associations prohibit the accumulation of junk in your garage. There’s a good reason for that. They don’t want any passenger car visible from the street, so all cars must be parked in garages at all times.
No over-sized vehicles in the neighborhood
This sounds like a reasonable restriction to keep semi-trucks out of narrow neighborhood streets. But this is actually a way of keep out riff-raff. There’s a case in Texas where the local millionaires could have Hummers and Cadillac Escalades. But the owner of a brand new Ford 150 was fined and sued because it was a pickup truck. It cost him 150,000 bucks to fight the case.
No home-based business
This is very common. Obviously, the intent is to keep out homeowners who have a stream of customers coming to visit. But this rule is often used arbitrarily to get rid of ‘undesirables’. Any kind of home-based business can be deemed illegal, even one owned by a writer who rants against Homeowners Associations…
No Green Energy
No kidding! No laundry lines (lots of fines and lawsuits on record). No solar panels (lots of fines and lawsuits on record) No xeriscaping (lots of fines and lawsuits)
In summary, if you’re going to live in an HOA plan for trouble. Even though you may like the kinds of rules you’ll have to follow, set aside a sum of money each month in a permanent savings account. Regular saving is always a wise idea, but especially in the HOA environment. Sooner or later you may need to use that money for fines or legal fees.
Ward Lucas
Author
Neighbors At War: The Creepy Case Against Your Homeowners Association
Our Story:
My husband & I have lived in our subdivision just about 11 years – We became active in the HOA over some concerns we were experiencing – which lead then to my husband running for the Board in 2007
When he was on the Board as a director – I started a facebook page in 2009 called Signal Butte Ranch Hoa
My husband – Anthony Scopellite was President of our association April 2008 –Jan 4th, 2011, Signal Butte Ranch, When a new management company, Innovative Property Management signed contract at the October 2010 HOA meeting a couple months later, I believe in December, the owner, Alex Winter told my husband “hey how is Wendy (Alex’s wife) doing her job and let me know if you have any questions or concerns” well my husband did let him know some concerns: missing pages in the contract, incomplete board packets, no communication logs and no financial reports – after Christmas on January 4th 2011 the Board and Management called for a Special Board Session – My husband called for a special executive session and a e-mail was sent from the management company saying the majority of the board doesn’t feel the need to have an executive session so your request is denied ……the room was packed and at the start of the meeting the President, Vice President and Secretary all went on record stating they were there at the meeting under protest – that’s when Wendy (Community manager) asked if there was a motion, one of the board members said “Yes I would like Paul to be the president” it was second and passed. When homeowners questioned it – Alex said “they could ask their questions at another time, they have an agenda and they are going to follow it”. Then when a homeowner asked why is the management company running the meeting, he was escorted out by police. (This is all on audio)
When the Board removed my husband, they wanted me to give them the facebook email and password and they would take it from there – I said no.
They got Augustus Shaw involved and he sent numerous emails demanding we do this, that, and the other, or “the Association will have no choice to investigate all of its legal options, including seeking an injunction to have a court order you to abide by the Association’s demands”
They wanted me to change the name –so I did I changed it to Signal Butte Ranch Homeowners – They didn’t want me to use the words: signal, butte or ranch
I changed it again to Signal Butte Homeowners then again to SignalButte RanchFans – always with the same disclaimer I have had: “This is NOT the official site of the association”
January 6th, 2011 – An demand from Augustus Shaw –
1. Remove the picture of the monument sign
2. Remove all post / content that would suggest that the page is the official page
3. Change name of site to something other than Signal Butte Homeowners or to a name that may not be confused with the Association
These changes needed to be made by January 10, 2011
My husband & I made changes
January 6th – I, Celene Scopellite was sent a letter from Rowley Chapman Barney & Buntrock, LTD. – Stating they represent Innovative Property Management and the letter was Re: Cease and Desist
Stating that I have “made and continue to make untrue / defamatory statement about IPM, Wendy Burton or Alex Winter on facebook. – If I didn’t stop again the clients will have no choice but to seek a court order prohibiting you from engaging in the improper conduct and will pursue their damages caused by your defamatory statements”
January 13th, 2011 – A letter addressed to me “thanking me for my attendance at the November HOA meeting” (In the November– we had the landscaper suggest putting in a dog watering station for 30 days free, to curb on some vandalism to the drip system, then if it worked he would only charge $60.00. I thought wow and added amenity to the subdivision, Richard (who has a history of abusing/ murdering animals, voted no but he had two other good ol’ boys to vote his way so after the vote I said you’re an idiot)
So this letter in January, 3 meetings later was in regards to proper decorum during board meetings
January 31st – A letter from Shaw & Lines, LLC
Dear Mr. & Mrs. Anthony M. Scopellite:
Stating the same as the email on January 6th and “If the above demands are not met, the Association will have no choice to investigate all of its legal options, including seeking an injunction to have a court order you to abide by the Associations demands”
February 4th, 2011 – our Attorney, Brent H. Bryson sent Mr. Shaw a letter stating “I do not see that my clients have violated any state or federal laws with the Facebook page. If you can identify one or more valid causes of action against my clients, we will consider whether they need to make requested changes. If, on the hand, your client has no actual legal basis for its claims, and only intends to bully my clients, your requests will be ignored.”
February 15th , 2011 Hoa meeting – the Board introduced a “Code of Conduct” Drafted up by Augustus Shaw & the Association Board and Management company– The one voted /passed -stated briefly “ No Board member or his/her family shall engage in any writing, publishing or speech making that defames any other member of the Association Board, or resident of Signal Butte Ranch Community (page 2) on the first five it says “Members of the Board”. AS Exhibit E is the lawsuit each of those statements were altered to read “A Board Member” On the 5th statement it says “ Member of the Board shall be responsible to provide notice of any absence from Committee or Board assignment to the management company”( the strikethrough was removed from Exhibit E) and the next two statements were removed completely “Any Board member who violates this code of conduct are deemed to be acting outside the course and scope of their authority. Anyone in violation of this policy may be subject to immediate disciplinary actions, including, but limited to: censure, removal from committee, removal as an officer of the Board, request from resignation from the Board, recall by the membership and legal proceedings.” “This document overrides and supersedes the Bylaws Article IV, Section 4.3, and Article V, Section 5.7” and the last statement I will type out “ No provision of the agreement can be rescinded, altered and/or amended unless by affirmative vote of the Members eligible to vote casting not less than two-thirds2/3 of the total votes represented by members” and this is what was put in Exhibit E “No provision of the agreement can be rescinded, altered and/or amended without vote of the members of the Board of Directors.”
March 8th this email was sent to me – After Wendy was seen going around with the candidate, Rhonda Lesher door-to-door (with what I have been told were blank candidate forms)
Ms Scopellite,
IPM was emailed today by a concerned homeowner. The concern was over ballots being collected on behalf of homeowners to be mailed at a later date. The concern has also been raised over statements made related to this election.
Please note that ballots cannot be collected by proxy. Any ballots collect as such will not be counted.
IPM also asks that statements concerning candidates or the process be one of a positive nature.
Make it a great day,
Wendy Burton
Community Manager for
Innovative Property Management
March 15th, 2011 at our Annual Meeting when Anthony & I entered the meeting location were greeted by a processes server and served with a lawsuit Complaint – Trade name infringement, Breach of Contract; and Injunctive Relief CV2011-001009
Days later, Anthony & I not wanting to the association to waste money, wanted to settle this. We contacted Mr. Shaw who then on March 28th drew up a 4 page settlement and gave us until March 31st, 2001 at noon to sign or not – this stated “we would “herby acknowledge that they breached the Board of Directors Code of Conduct” (regardless of whether they serve on the Board of Directors) “Immediately cease and desist from using the trade name “Signal Butte Ranch”:, or any derivate thereof.” We shut down immediately facebook and web page entitles SignalButte RanchFans, Twitter account SBRanchFans” and advise viewers that the web pages are not official site of the Association.”
If we fail to abide “shall be responsible for all Associations costs concerning the Lawsuit, including legal fees and costs.”
In the midst of all this, Richard Scheffer (Board Treasurer) actions caused us to go the Superior Court of Arizona in Maricopa County and get an Injunction of Harassment (Anthony Scopellite CV2011-094278) & (Celene Scopellite CV2011-094281).
October 30, Richard at a neighborhood event Trunk o Treat pulled a knife our on my husband, later that same night he ignored my request to not help her in taking down our personal decorations again he took his knife out again and started to cut down the decorations
November 7th Richard left threatening msg on our home and cell phone “call me back or else”
November 9th after discussion at a board meeting Richard lunged up out of his chair and began to approach my wife and told her “You better watch yourself, I know the law”
February 26th Richard came down to the park where family and friends were playing horse shoes
March 15th Richard came to our house and spoke with me and became agitated and pointed his finger towards the front door and said the real problem is “You don’t the balls to tell your wife to shut the FUCK up!” when told to leave he turned around a gave a pointing-a-gun-and-pulling-the-trigger-motion
March 20th When wife and Daughter were out walking the dogs he took his truck in a manner to force us to have to walk past him
March 23rd Looked out front window and saw Richard parked in his truck staring at me/house
March 28th Same as above
April 7th – Our daughter was going to get the mail when she saw Richard driving by real slow
April 8th – Leaving the subdivision, 1 ½ miles down the road saw Richard in his car leaning out the driver’s side motioning for me to pull over, I shook my head “no” pulled out my phone to video and he smiled and made a pulling-of-the-trigger-on-a-gun motion at me
April11th is when we filed for the injunction of harassment
April 14th, 2011 We received a Hearing Order / Motion to Quash Injunction – Where Augustus Shaw would be defending Richard Scheffer and the Real Party in Interest, Signal Butte Ranch Community Association
Augustus Shaw stated “ the injunction was actually filed by Plaintiff’s in an attempt to harass Mr. Scheffer and to hinder his ability to perform services on behalf of the homeowners association”
The injunction was quashed – the only two people who testified were Anthony & Celene Scopellite
May 2011 Anthony and I suggested Mediation
May 19th Hoa meeting the Management Stated that legal (Mr. Shaw) has drafted up the below statement – Board members then voted on this and it was passed
Mr. Shaw, knew that we were in a middle of a lawsuit and we the Scopellite’s were asking for discovery documents and part of that discovery were the annual ballots – Yet he drafted and suggested to this board the items we were requesting be destroyed
May 26th We received notice that mediation would be set June 27th, 2011
June 27th – Mediation
1. Scopellite’s agree to abandon web page Signal Butte Ranch Fans. They will KEEP their facebook and twitter pages w/ a disclaimer “This is not the official ……”
2. Anthony will resign from the Board
3. Association – The Code of Conduct will be invalidated
4. Parties will execute mutual releases
5. We bear our own costs and dismiss w/ prejudice and Anthony give a password and log in information for a domain
July 12th – We filed a complaint on Augustus Shaw IV with the Arizona State Bar Association
July 21 – Richard Scheffer ( Board Treasure ) drove by numerous times, taking photos of a sign we had in our front yard
July 22nd – Received a violation notice for having that sign in front yard ( It was a violation and we removed it)
July 22nd – Wendy filed an Injunction of Harassment on ( Celene Scopellite )
July 28th Alex Winter (IPM – Owner) came by and took a picture of my vehicle parked in front of our house
July 29th – Received a violation letter telling us not to park in the street ( City of Mesa owned street)
CAI – FACT: I did call, FACT: CAI doesn’t take complaints, FACT: Ms.. Kayte Comes, Executive Director of the CAI of the Central Arizona Chapter, told me to “call the Better Business Bureau”, FACT: the only complaint on the BBB was in November 2010, FACT: Innovative Property Management is NOT a member of the BBB
The phone call Wendy referenced was on Monday June 18th, 2011, I called IPM and wanted to know the date of the next HOA meeting – I was placed on hold, then Wendy answered, I asked my question again and Wendy said “that information is going out in the mail” then hung up on me – 4 days later served with an Injunction of Harassment
August 1st Settlement & Release Agreement was signed
August 10th –Injunction Against Harassment Hearing – CV2011-096864
August 16th – The Court cannot find that burden has been met. Therefore, IT IS HEREBY ORDERED dismissing the injunction against harassment
We have audio, video and documents backing up this whole story
Wow, Celine. It’s no wonder people just don’t want to get involved in their local HOA.