While the HOA’s primary function is to protect and maintain the value of both the private and communal property in the community, the actions of the HOA’s board and its interpretation and application of the HOA’s rules sometimes cause problems for individual homeowners. Are you allowed to put up a storage shed? Can you paint your house a different color? Does your tree need to be pruned? Can you park your R. V. in the driveway? The HOA probably has rules applicable to each of these circumstances.
These documents also usually include a description of how the rules can be amended, how the HOA board is elected (or removed), what powers the board holds, how meetings are called, and the consequences of any violations of the HOA rules by the members. The Covenants, Conditions, and Restrictions (CC&R) document outlines the rules for community members, such as how they maintain the outsides of their homes and what they can, and cannot, do in public inside the community. The HOA’s rules operate much like a contract between the HOA and each individual member-homeowner. Any breach of the contract could be grounds for legal action. One of the remedies available to the HOA for the homeowner’s breach of the HOA rules is foreclosure against the homeowner’s property.
The Board’s powers and duties to all homeowners within the HOA include enforcing the rules governing the ownership and management of the residential community, paying all taxes and assessments and avoiding liens upon the common area, securing general liability insurance on behalf of the HOA, securing contracts for materials and services in order to maintain the common area, electing and/or organizing committees, officers, or employees of the HOA, and overseeing the preparation of budgets and financial statements on behalf of the HOA, . They are also responsible for writing all rules of operation for the common areas and facilities within the HOA and notifying all homeowners of these rules on a regular basis, notifying homeowners of any violation of the rules and conducting investigative meetings and/or disciplinary proceedings against members of the association for violations of the rules, and placing a lien on any homeowner’s property when timely payment of dues and assessments are not made.
Homeowners must follow all written rules set forth within the CC&R, for example, parking restrictions, home maintenance, home improvement, and prohibited conduct. Homeowners must pay all fees and assessments on a monthly basis to contribute to the cost of repairing and maintaining the common areas within the residential community. Homeowners cannot refuse to pay any fees and assessments, however, a member has the right to take action against the HOA in order to contest any unwarranted charges.
If the HOA has routinely violated or ignored the rules in the past, while presently seeking to enforce a rule against you arbitrarily, you will be able to document that the HOA is not treating you fairly and reasonably. [3] X Research source This is showing how the HOA has dealt with your similar issue in the past. As a member, if you were granted an exception to the HOA Rules, be sure to document that exception in writing, specifying precisely what was granted, who granted it, when, and for what time period. Some such exceptions might need to be recorded with your county recorder’s office in the same way as your property deed. To avoid keeping heaps of paper, simply scan these documents and keep electronic copies, ensuring that you have adequate file backups in case of a computer malfunction, burglary, or catastrophic loss.
If you are successful in your fight against the HOA, you likely will be able to get your payments refunded with interest. Remember, however, to make an effort to negotiate a resolution of fines and/or collection disputes between you and your HOA or its lawyer. Your HOA may be incentivized to settle your matter in order to avoid future expensive attorney fees.
It could be useful to gather signatures of neighbors who agree with you into a petition. As a unified group, you can more easily make positive changes by convincing board members to vote for specific changes to the rules or by voting in (or out) board members.
HOA Board meetings can show you how the HOA addresses specific issues. Therefore, requesting copies of the minutes of a prior board meeting that addressed a similar circumstance will help you in laying a foundation in court that the HOA is treating you unfairly and being unreasonable.
This is not to say that you should avoid a show of strength. In fact, it is a good idea to make sure the HOA board knows that you intend to advance your position. Just be respectful.
You might also consider filing a grievance with the HOA against specific individuals in the HOA (or under the HOA’s control) who are harassing you, randomly and capriciously enforcing regulations against you, or otherwise treating you poorly. In your written request for a hearing, request copies of the HOA’s records that were used as a basis for the HOA action against you, or the denial of your request for improvements to your property. However, some executive sessions of the HOA board meetings may be able to be held back from you, so check the rules.
Another, easier alternative to amending the rules would be to apply for a “variance. ” This is, essentially, a request for an exception to the rules for your particular case. For example, perhaps you have a medical condition that requires a large handicapped-accessible van be parked in front of your home but parking vehicles long term on the street is usually restricted. The HOA might make an exception (grant a variance) in your case either as a gesture of good will or in order to avoid a lawsuit.
Even small claims actions can be emotionally difficult, financially draining, and long-lasting. Remember, also, that the Board Members of the HOA you are suing probably are your neighbors, which can make your daily life even more difficult. Further, if you lose, your HOA rules may require you to pay the HOA’s legal fees, which easily exceed any damages you are claiming in your action. Although you may prevail in your action, the HOA might still be able to pass at least a part of their legal costs (and, even the damages award they’re ordered to pay you) back to you through a special assessment where all members must contribute a sum to the HOA (which won’t help you make friends with your neighbors). Courts often apply the standard of “reasonableness” when determining whether or not a HOA’s action against a homeowner is enforceable by court order. If the court determines that the HOA’s action or fine against a homeowner is not more likely than not unreasonable, it could find in your favor and reverse the action or fine imposed against you.
Courts may find against HOAs when their actions fail to be fair and uniformly applied to all homeowners and you do not necessarily need to prove that they discriminated against you based upon a protected class. If you can show that your HOA treated you differently than it did other homeowners in your similar circumstance, its case against you will be weakened dramatically in the court’s eyes. Some states, such as Arizona, have a separate administrative process specifically designed to handle HOA disputes.
Hire someone with experience in handling HOA disputes. This might not necessarily be a real estate lawyer. HOAs are not-for-profit organizations similar to corporations, which is a different thing entirely from typical real estate issues. Your local Bar Association can often give excellent recommendations and referrals.
Most small claims jurisdictions are limited to damages of up to $10,000 and/or an order for specific performance against the HOA. You can bring a cause of action against the board claiming that it acted wrongfully and, as a result, you have suffered a financial loss. If you are successful in small claims court against the HOA, the court can order the HOA to reimburse you for the amount of fine you were wrongfully required to pay as well as your court costs. Personally visit your local clerk of court’s office or visit its website to obtain instructions and forms on how to proceed with your action.
