I had an odd phone call from a friend late last year, a few weeks before my book came out. I won’t share too many personal details, but this gentleman is retired, a wonderfully decent man who is well-loved in the community.
But he was next to tears as he said, “Do you know anything about Homeowners Associations?” With what I’ve been through over the past few years, I almost had to laugh. But I asked him to continue.
He told me that he’s lived in his suburban home for the past thirty years and it has never had an HOA. There’s nothing in his original real estate documents and he’s never paid dues to anyone. But he was stunned when someone knocked on the door and said the neighborhood was now represented by a Homeowners Association. The visitor noted a couple of things in my friend’s back yard that were not approved by the new board. One was a back fence that was six or so inches taller than nearby ones. The second was a little white gazebo in the back yard. It was unapproved and had to be removed.
“What do I do?” my friend asked.
For many years this gentleman has conducted weekly Bible studies in his home, not many people, probably just as many as you could fit into a small backyard gazebo. But apparently someone had complained and had called a meeting where a majority of those who showed up voted to reinstitute an HOA that’s been absolutely inactive for the past three decades.
I happen to know this neighborhood. It’s very clean, well-groomed with several dozen tidy one-story, mid-to-upper scale homes. But I also learned that this newly formed HOA is now represented by one of the most powerful, most aggressive HOA law firms in the country. At 70 years old, my friend doesn’t have the resources to go to court.
I do know something else. This gentleman’s Bible studies are going to have to come to a close.
I swear you make some of this stuff up! There isn’t a lawyer in the country who wouldn’t win that lawsuit. Considering he had lived with ‘those items’ in his yard for 30 years, there is no way any judge is going to force him to remove it now. The fact he had no idea a HOA was even being formed or he had no idea there had even been an election to appoint officers also gives him the upper hand since it’s illegal to form a HOA as you stated it happened (without notifying the entire neighborhood). 5 people in a neighborhood cannot ‘form’ a HOA out of the blue, make up CC&Rs willy nilly,never even tell the other residents they are doing it and then force them to abide by them. Even if they tried, they would be stopped in a nano second in court. Something is not right with the story. But it makes for good fiction reading.
ddlinki, sadly this story is not made up, and I’m sorry you think so. Yes, you’re right, he might win in court, although even that is highly doubtful. And although I don’t know what state you’re from, here in Colorado another friend ended up in an almost identical situation. In his case the HOA was also formed in a neighborhood that never had one before. He was sued by two homeowners, angry at his participation in the installation of an HOA and it cost him two years of his life and $40,000 in legal costs. The two angry homeowners moved out of the neighborhood, but the bottom line is that after the court case, the HOA is still standing. In my minister friend’s case (last night’s blog), he just doesn’t have the money to bring a lawsuit even if there was a slight chance he’d win.
Because the items where there before the HOA reinstated itself, he does have some relief, it is called grandfathering thereby he may have a chance due to the inactive HOA. So what happen do you know?
Can he get a low income attorney fees through the county and I am thinking is this Jefferson? He can with someone’s help represent himself, a lot people think they always need an attorney they don’t and your can request the judge for a bit of help. I know judges hate it when someone represent their selves but it can be done. Here is the fact. 1. When did the non-profit corporation apply for their corporation (date) its important.
2. What is the date, they filed their renewed deed restriction or have they? Did they file under the original HOA Name or restate you will need that date as well? If he can show that the fence and gazebo has been there for years they have to grandfather him in as it was there before they (and I will not tell you what I really think of people like this) restated the HOA. Now here is another issue, did this HOA send him a certified letter or any letter and can the HOA prove it, stating about a vote or about reinstatement of the HOA ever? if they did not, he was never legally notified that he was about to become a HOA again. Now if the Colorado state and you can easily check that online Secretary of State of Colorado web page under (doing business as) pull the HOA name up see when there papers were filed and the incorporation it is all free online I have done it a number times in Colorado I use to live there even HOA have to file with the state of Colorado.
just like I am going to do.
A pro se lawsuit against an HOA is like trying to fly a kite in an ice storm. It won’t get off the ground unless you have extensive knowledge of how the legal system works or have help from a paralegal or an attorney friend. Judges are not allowed to treat the pro se litigant any differently than an attorney. In all the HOA cases I’ve known of only two have been successful with pro se. And one of them has a law degree, practiced law for over twenty-five years and served as a judge, but is now retired. HOAs have massive amounts of money to hire attorneys and when you countersue they bring in their insurance companies like State Farm.
This is exactly why the Kansas Uniform Common Interests Owners Bill Of Rights Act allows for the homeowner to recover legal fees if they can convince the judge the HOA was in the wrong. In every Kansas case I have known of since the law became effective on January 1, 2011, and the HOA lost the case, the homeowner was awarded their legal fees by the presiding judge.