Tag Archives: HOA Neighborhood

Legal Pitfalls of HOAs

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guest blog by Deborah Goonan

One often-overlooked fact about homeowners associations (and condo, too) is that they are legally classified as corporations, separate and distinct from cities and towns. And just like any other corporation, anyone can sue the HOA or be sued by the HOA for any number of reasons.

What does this mean for the HOA owner? It means the Board has a duty to protect the Association against the very real risk of expensive lawsuits. Insurance policies can help, but only if the Board purchases the right coverage with limitations high enough to cover the risk. Even then, insurance companies have been known to refuse to pay some or all legal expenses or judgments, especially when Board or Manager actions have been deemed insufficient or reckless. When that happens, homeowners are often on the hook for unpaid insurance claims, hefty legal expenses and any other awarded damages.

Want some examples?

1) In the video linked below, you can watch what happened when the deck of an Indiana clubhouse collapsed during a December 2013 family gathering, hurling twenty-four people to the ground below, seriously injuring several of them. The builder claims the deck is beyond its ten year warranty period, and the HOA is responsible for its maintenance. If the HOA failed to maintain and repair the deck, the Association might be found liable for injuries resulting from its collapse. Will the HOA have sufficient insurance coverage for multiple lawsuits brought by the injured and their insurance carriers? Or will the insurance company deny payment because of something the HOA failed to do? Will insurance even cover replacement of the deck? All of that remains to be seen.

2) In the second news video linked below, in April 2014, neighbors in a Florida HOA said they were concerned because a man drowned in a retention pond. The HOA owns this pond as part of its common areas and is responsible for its maintenance. Retention ponds like this one are very common in Florida, and, as the attorney points out in the interview, it would be impossible to protect all of them with a barrier. Nevertheless, according to the attorney, the HOA can face liability for not adequately warning of potential danger, or knowingly or unknowingly creating any “unsafe” condition. There is very little this Association can do to prevent any child or adult from walking up to the pond and either jumping or falling in. Draining the pond is probably not an option in Florida’s tropical climate. The Water Management District requires retention ponds to prevent flooding and environmental contamination from storm water runoff. It is doubtful that all adjacent homeowners will agree to install a fence to prevent another drowning accident because, in many HOAs, lots adjacent to retention ponds are sold at a premium price as “water view.” Some HOAs expressly forbid fences of any kind, for any reason. All of these factors increase liability risks and insurance premiums for those living in an HOA.

3) Sometimes when an owner sues the HOA, things get out of hand. Such was the case of Maria and Sam Farran and their Virginia HOA, whose legal battle began in 2008, over the display of an Obama presidential campaign sign (that, according to the rules was four inches too big). After a protracted dispute spanning nearly four years, Fairfax County, Virginia judges ruled in favor of the Farrans in two lawsuits: the first over the HOA’s lack of a legal right to issue fines, and the second over the HOA’s secret meeting denying the owners’ requests (in apparent retaliation) to add a new roof and a deck. During the ongoing feud between the HOA and the Farrans, assessments reportedly increased from $650 to nearly $3,500 annually, mainly to cover legal expenses. After the dust settled in 2012, the HOA found itself unable to pay $100,000 in legal fees awarded to the owners, and had to declare bankruptcy. Now the community square, once used for neighborhood gatherings, is awaiting a new buyer.

Bottom line: if you own property in an HOA, due to no fault of your own, you may be on the hook for thousands of dollars in legal expenses, not to mention neighborhood strife, and possibly even bankruptcy of the Association.

(link to KSDK news story on deck collapse)

(link to News4Jax story on retention pond drowning)

 

Sod vs Mint

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guest blog by Nila Ridings

This might be breaking news: California is having a terrible drought! And Fran Paxton is trying to do her part to reduce water consumption for outdoor use.

Using her ingenuity, Ms. Paxton created landscaping using mint that requires little water. It even earned her a rebate on her landscaping from the local water district.

But the Twin Creeks HOA board in San Ramon demands she replace it with sod! Until she does they are fining her $50 per month.

In steps attorney, Micheal Mau who says the HOA could be violating the California law. He’s going to help Ms. Paxton settle this mess.

It’s no surprise that Twin Creeks board of directors says this case should not be settled on television. Heck no! It’s so much easier to bully the elderly out of the spotlight of television cameras. Good for Fran for calling out the investigative reporter!

(link to CBS San Francisco)

 

Community Associations Institute (The Disinformation Institute)

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guest blog by George Staropoli

Think in terms of the Third Reich and the Ministry for Public Enlightenment and Propaganda, Josef Goebbels in charge.

CAI is the modern incarnation of the Ministry. If, as has happened, CAI goes unopposed with its ongoing propaganda campaign about the grand and glorious benefits of HOAs without even whispering “constitutional violations” or “de facto private governments” who will believe anything is amiss?

What? Those malcontent, troublesome homeowners who don’t know how to live in a community with rules? That handful of trouble makers? They can’t even write decent legislation! Let the CAI lawyer/lobbyists explain the issues to you legislators so you can make better decisions.

Who would you believe?

Over the years CAI in Arizona has been basically silenced in the public media, because I would confront, challenge, and expose their lunacies and false statements whenever I could.

In the 2000 – 2005 time period the CAI repeatedly slandered homeowner advocates. We often heard statements from legislators like, “You’re just trying to get out of a contract.” “You agreed and you should have read your contract.” “Anyone who didn’t read or understand their CC&Rs and signed anyway was really stupid. I wouldn’t do anything like that.” Or even worse, “If you don’t like your HOA, just move out. That’s all!”

This year the Arizona Legislature approved SB 1482 without any questions being raised in committee. The bill was simply voted on and passed. Why? An almost identical bill was passed last year but failed in the courts. Also last year I repeatedly confronted and exposed CAI simply by quoting erroneous statements their lobbyists had made in public. Many legislators began to realize CAI was feeding them bad information. Of course, the previous law was eventually thrown out by the courts because it was fundamentally illegal.

However, CAI lobbyists still walk the halls of the legislatures whispering in each lawmaker’s ear, spreading the same old disinformation. This will never change unless voters contact their legislators and truly educate them on the issues.

The HOA War Against Ham Radio

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Despite FCC rulings that support amateur radio hobbyists and the installation of ham radio antennas, Homeowners Associations have mightily resisted. Hobbyists have been harrassed, fined, and sued by HOAs which insist that neighborhood covenants don’t have to pay attention to federal law.

But there’s a new bill introduced in Congress which could prove interesting if it gets wide support. Republicans and Democrats are signing on to the bill. Hobbyists are mounting a nationwide campaign to get it passed into law. Of course, the HOA industry is fighting it tooth and nail, claiming such nonsense as “this is a bill that would invalidate all CC&Rs.”

But as our frequent guest blogger and commenter, Deborah Goonan, says, it’s an example of how going federal can bring results.”

Amen to that!

(link to story on amateur radio parity act)

 

Are Cities Exploiting HOA Owners?

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guest blog by Robert Frank, Colonel, USAF (Ret.)

Will Over-Taxing & Under-Maintaining Infrastructures Lead To Disasters?

Many cities claim to promote long-run ‘sustainability objectives’ following U.N. Agenda 21 policies. But, Homeowners Associations, CICs, CIDs, Condo Associations, acting as ‘private, quasi-governments’ wind up being over-taxed and under-maintained by cities.

The predicted results are windfall profits for industry and government, and failed CIDs. Is this yet another reason the HOA industry and local government is so hostile to those who question their policies and frequent overreaches?

We know that cities or counties charge the same property tax rates for all home owners. But, the costs to support HOA/Condo private property is much less than non-CIDs. This is particularly true in gated HOAs.

So, it can be reasonably argued that the local government organizations who dictate the requirements for CIDs and profit from receiving excessive taxes should either refund the surpluses to unit owners, or reserve the surpluses for future bailouts of failed CIDs.

Spending the surpluses for such unjustified things as vastly increased government worker salaries and pensions while the older CIDs are heading towards failure is unwise, selfish and immoral. This failing CID infrastructure situation for developments over 20 years old is well known.

Professor Evan McKenzie and others offer advice on CIDs to local governments and the industry. IMO those who create and highly profit from the terms, conditions and taxes created through the CID’s master plans cannot shed all responsibilities for helping to bail out failing CIDs.

We all want to avoid the kind of urban blight that happened (for somewhat different reasons) in Detroit, Michigan. But, CID common property structures seem to be designed to fail or require major (unaffordable) renovations within 20 to 50 years. This seems particularly true for gated CIDs and Condos. it seems that inventors and profiteers of such CID plans should be held at least partially responsible for enabling CIDs to sustain themselves over the long-run.

Is it not unreasonable, or at least unrealistic, to dump the total costs of common property replacement infrastructure on the backs of future unit owners using the almost unlimited power of CC&Rs during the last decades of structural life? What will that do to unit values in cities during those final decades?

As industry leaders have written, the future of CIDs is a predictable train wreck. If the HOA/Condo market is to be sustained, major changes are needed NOW in the master plans.

And, community planning is required NOW to build a balance of non-CIDs units where owners are individually responsible for their long-range planning?

Where are the better options? Industry and government demands for maintaining the “CID status quo” appears to be a formula for home owner disasters in our lifetimes!