Oh, the tempers have started furiously flying at the sight of the assessment letters arriving in the mail!
The homeowners in the elite HOA of The Lakes in Visalia, in the Central San Joaquin Valley, are fuming because the private roads need paving (according the property manager and the board) and that requires an emergency assessment of $2,300 per lot. If a person owns three lots they need to triple that payment. Why the need for the emergency assessments? Quick answer: The reserves are underfunded. Which comes as no surprise to all of us who work daily on HOA issues.
The HOA attorney has informed the unhappy homeowners that the HOA board is within its legal rights to demand the assessments. And, if not paid, they will lien the properties until it is.
Our regular readers have heard me say this many times: Buying into an HOA comes with massive risks. When the ink dries on the purchase contract, you become the guarantor for all debts, loans, lawsuits, settlements, liabilities, construction defects and disaster rebuilds for the entire HOA. There is no way to escape it. The CC&Rs are never quite that clear and easily understood, but that’s what it boils down to.
The Lakes of Visalia has now joined the massive number of HOAs that are already war zones. Welcome to the REAL WORLD of HOA living!
We’ve seen this kind of thing over and over. You buy an expensive HOA home next to a golf course or a pretty little lake. You pay an extra high premium for such a nice view.
Suddenly, it all goes away. The golf course is sold to a new developer who hatches a plan to add a whole new subdivision on top of the golf course. The pretty little lake, it turns out, is a drainage basin for the county and the county suddenly decides to drain it.
Where’s your investment? Gone, gone, gone. Welcome to HOA living.
Good neighborhoods are quirky. That’s because people are quirky, and their quirks keep us all smiling and make the world go ’round. The problem with Homeowners Associations is that they’re bland, bleached, with a sameness that brings everyone to the same level. Standing out from the crowd is a well-known guaranty of getting yourself sued.
The New Territory Residential Community Association in Sugar Land, Texas is having a conniption fit over some ‘yard art’ in front of one family’s home. Other families have decorative lions in their front yards. But the Hentschel family has put up some beautifully made statuary that’s unique: metal sculptures of a velociraptor and a T-Rex.
Of course, they’ll get liened, fined and probably sued. And that’s a shame. I would give my eye teeth to be able to live next door to the Hentschel family!
The Stout family is celebrating around the purple swing set tonight! It’s not going away. The parents are not going to jail. The kids can smile and be happy while swinging to their hearts content.
The Raintree Lake board of directors (Missouri) just wasted a lot of money on legal bills and put their HOA on national news. Not to mention the story went viral on the internet. Let’s HOPE they learned something from this case.
FINDINGS OF FACT
Plaintiff Raintree Lake Home Owners Association (hereinafter “Raintree Lake” or “Plaintiff Raintree Lake”) filed its Petition for Mandatory Injunction and Associated Relief on December 29, 2014, requesting that the Court order Defendants Lewis W. Stout, Jr. and Marla R. Stout (hereinafter “Defendants”) to remove their purple-colored swing set from their property and the subdivision, that the Court award fines, and that the Court award reasonable attorney fees and costs incurred.
Defendants filed their answer to Plaintiff’s Petition for Mandatory Injunction and Associated Relief on February 27, 2015, asserting various affirmative defenses.
A trial on the merits was conducted on August 21, 2015 before this Court.
Plaintiff presented evidence alleging that Defendants were parties to
“Declarations of Covenants, Conditions and Restrictions” (hereinafter “Restriction Agreement”), dated October 29, 1973, and that Defendants were in violation of Article VII, Section 3 of the Restriction Agreement by the erection of the purple swing set at issue in the above-captioned matter.
Article VII, Section 3 of the Restriction Agreement provides that Defendants will not make “improvements, alterations, repairs, change of paint colors, excavations, changes in grade or other work which in any way alters the exterior of any property or the improvements located thereon” or “as relates to any structure on the property to commence it, erect it, make it, or do it” without prior written approval of the property owners association’s Architectural Review Board.
Plaintiff Raintree Lake presented evidence suggesting that Defendants were in breach of the Restriction Agreement when they erected a purple-colored swing set on their property without the written approval of the Architectural Review Board.
Defendants presented evidence that attempts were made to obtain the approval of the Architecture Review Board but that an arbitrary standard was used by the Board, preventing the approval.
Defendants also presented testimony that the color of the swing set met the requirement as set forth in the Raintree Lake Property Owners Association Architectural Review Board Guidelines which states for swings sets and play equipment: “Color: must be subdued and within harmony with other colors of the community including slides, swings and canopies.”
CONCLUSIONS OF LAW
Plaintiff Raintree Lake failed to establish that it is entitled to injunctive relief pursuant to § 526.030, R.S.Mo., and is therefore not entitled to judgment on its Petition for Mandatory Injunction and Associated Relief. An action seeking an injunction is an action in equity. “An injunction is an extraordinary and harsh remedy and should not be granted where there is an adequate remedy at law.” City of Greenwood v. Martin Marietta Materials, Inc., 311 S.W.3d 258, 265 (Mo. App. 2010) citing City of Kansas City v. N.Y.-Kan. Bldg. Assocs., L.P., 96 S.W. 3d 846, 855 (Mo. App. W.D. 2002). The elements for a claim for injunction include: (1) irreparable harm, and (2) lack of adequate remedy at law. Id. Irreparable harm may be found when pecuniary remedies fail to provide adequate reimbursement for the improper behavior. Id. at 266. There is no “adequate remedy at law” when damages will not adequately compensate the plaintiff for the injury or threatened injury. Id. at 265-266.
Plaintiff Raintree Lake failed to present evidence as to the element of irreparable harm. There was no evidence presented to this Court that Plaintiff Raintree Lake will or has suffered irreparable harm as a result of the erection and/or color of the swing set. Although, as stated previously, irreparable harm may be found when pecuniary remedies fail to provide adequate reimbursement for the improper behavior, the evidence before the Court was that Defendants were initially fined in regards to the swing set but that fine was then set aside by Plaintiff Raintree Lake’s own Appeals Board. Plaintiff Raintree Lake failed to meet the first element required under Missouri law for permanent injunctive relief and therefore is not entitled to the relief requested in its Petition for Mandatory Injunction and Associated Relief. As the Court has found that Plaintiff Raintree Lake failed to prove the element of irreparable harm, the Court finds that it is unnecessary to address the second element, that there is no adequate remedy at law.
JUDGMENT
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Court finds
in favor of Defendants and against Plaintiff as to Plaintiff’s Petition for Mandatory Injunction and Associated Relief.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff’s request for the award of fines is denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff’s request for reasonable attorney fees is denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants’ request for reasonable attorney fees is denied.
IT IS SO ORDERED.
Date:August 28, 2015
As the 2016 Presidential election campaign heats up, so do political sign controversies in homeowners associations. Here’s a perfect example from Florida, a dispute over a Hillary Clinton sign in a resident’s window.
Howard Finkelstein (2) is Public Defender for Broward County in Florida, but he moonlights as a legal analyst for the local Fox News affiliate. According to Finkelstein’s analysis, an HOA can deny a resident’s right to display a political sign as long as their documents are “written correctly,” and if the homeowner took this to court, she would “probably lose.” However, an HOA cannot allow some types of political signs (such as the one we see in the video about gun ownership rights) and not others ( a sign supporting Hillary Clinton).
That would be Selective Enforcement: that’s the kind of inconsistency that gets HOA Boards in trouble, the kind of stuff that leads to billable hours to the Association attorney to defend the indefensible. Guess who pays for this folly? Why, that would be all the homeowners.
Of course, Howard brings up the standard argument that because it is not the government, a private HOA can make up rules prohibiting signs. Or, as I like to say, the standard industry claim is that the Bill of Rights Need Not Apply, including your guarantee to Free Speech under the First Amendment.
But, is that absolutely true or is subject to interpretation?
Recent Case Law opens the door for future challenges
In 2012, the NJ Supreme Court, in Mazdabrook vs. Khan(3) ruled that an Association’s restriction against placing a political sign inside a condo unit’s window was unconstitutional under state law. Of course, the facts in Mazdabrook bear a striking resemblance to the action taken by Valencia Morris at The Enclave at Cutler Bay. Ms. Morris was threatened with a fine if she did not remove the small political sign she had placed on the inside of her unit’s window.
More recently, in 2014, in Dublirer vs 2000 Linwood Avenue Owners (4), the NJ Supreme Court upheld that the Association violated the state’s Constitution when it denied the owner of a Fort Lee Co-op the right to distribute campaign leaflets as he contemplated running for a seat on the Board.
In both cases, the NJ Supreme Court ruled that even a private organization such as an Association-Governed Residential Association, cannot restrict “too much speech” and rejected legal arguments for the Associations that a homeowner “gives up” Constitutional rights by taking title to an HOA property.
Now, some FL attorneys will argue that the NJ Constitution offers greater protection of rights involving private organizations. So let’s compare the two state Constitutions on the issue of free speech.
6. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
SECTION 4. Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.
Now, I’m not an attorney, but these two provisions seem to say essentially the same thing.
Are the winds of change blowing?
Allow me to leave the reader with one final thought, courtesy of the First Amendment Center at the Newseum Institute. In their recent survey (7), they asked: Does the First Amendment go too far in the rights it guarantees? Below you can see the results. (click on the graphic to enlarge)
Looking at perceptions of First Amendment rights for different age groups, it’s quite clear that younger generations are not going to put up with private corporate HOAs restricting speech! Time is on our side.
