First, this article is written from the point of view of a California resident. Much of the information presented here is relevant to other states, but you should check the laws in your own state to make sure they are the same or similar.
For most people buying a new home in America today, there is generally a mandatory membership in a homeowners association, known as an “HOA.” These organizations are essentially mini governments that possess the power to make and enforce laws, including the right to foreclose on a family’s home, townhouse, or condo.
The original intention in creating the Homeowners Association envisaged an active participation of all members; a tight-knit community where community members addressed common issues through the HOA offices.
Reality is nothing like vision.
Today, in most cases, an HOA is a very small number of people who actively hold the authority of the HOA in their hands, and only in their hands. Usually these circumstances are due to the lack of participation of the majority of the members of the HOA.
The lack of member participation creates a certain logic for the Board of Directors, who interpret the disinterest of the other member as the reason why they should keep the authority of the HOA to themselves. The community is divided between those who control the Board of Directors and everyone else.
For everyone else, an HOA is usually not easy to deal with. They exercise the authority to foreclose, impose heavy penalties, and often control aspects of the lives of community members that typical Americans believe are a precious private right of the homeowner, such as what their children can do while playing games. your own backyard.
Homeowners often find themselves in a competition with their Homeowners Association about these rights. Can I park my car in the driveway of my house? No, says the HOA because we few active members pass a law that says you cannot park a car in your own driveway unless you use the car every day.
Can my kids play basketball in our own backyard? No, says the HOA, because we, few active members, pass a law that says basketball courts that can be seen from the street are not allowed. And by the way, you are not allowed to cover that open fence to limit our visibility in your backyard because we few active members have passed a law that says we have the right to see your backyard.
Can I fasten my windows? No, says the HOA, because … Well, you get the idea.
Now the part you’ve been reading to find it. How do you defeat your HOA?
First, you must make sure that you continue to pay your HOA due. Most homeowners who quarrel with their HOA over issues such as a rule restricting backyard activities, use of their own driveway and garage, and denial of their planned home improvement projects, they often get angry and stop paying their dues.
This is a mistake. Pay your dues. However, you can usually skip paying penalties and late fees. In California, an HOA cannot foreclose on your home based on accrued late fees, penalties, and other expenses such as the ‘cost of collecting’ your penalties and unpaid late fees.
They can sue you in small claims, or even in the limited jurisdiction of the Superior Court because then they will get attorneys’ fees, which will be huge. However, the resulting judgment is much more difficult to use to foreclose on your home because it does not take precedence over existing ties, which means that the HOA would have to pay off your mortgage to obtain your home via a lawsuit judgment. (In California, the moment you lose such a lawsuit, go to the State Bar and demand a fee mediation: HOA attorneys charge you like first-class attorneys, but they charge your clients like they are first-year rookies).
But, let’s not let it get that far, shall we? Here are some basic rules to follow when it comes to your HOA.
Homeowners associations often do not have a properly elected board of directors. As soon as you get that pesky letter telling you to stop your kids playing in the backyard, send a letter asking for a copy of all the Guiding Documents.
Hopefully the HOA will ignore or reject this request.
They are not allowed to deny or ignore a request for copies of the Guiding Documents.
Get a copy of all of your Governing Documents and read them to see what constitutes a properly elected Board of Directors. In those communities where member participation has been limited to a few who want to be Board members, a “quorum” has generally never been achieved to properly elect the Board.
The Board, therefore, generally meets by default.
Non-compliance boards are limited in the scope of their authority and, in some cases, have no authority at all.
In all your correspondence, constantly remind the Board that they are not properly elected.
Follow these basic steps;
1. Request a ‘meeting and conference’ with a Board member to discuss the issues. The HOA is not allowed to deny your request to meet and conference. Record the meeting on video.
2. Demand a hearing before the Board. Record the meeting on video.
3. Appeal the decision of the Board. Record the appeal hearing on video.
4. Require mediation after the Board upholds its earlier decision on appeal.
Generally, the members of the HOA Board of Directors are not very familiar with the laws that govern the operation of an HOA. many will be familiar in passing with the relevant parts of foreclosure law and, of course, will know the Homeowners Association rules and regulations by heart.
However, I have found that the Board of Directors is often unfamiliar with the requirement to meet and confer in good faith. Therefore, it is common for the Board member who shows up to meet and conference, meet but not conference. There is a good faith requirement that makes inappropriate the kind of answers that the typical member of the HOA Board of Directors will offer in response to your questions.
For instance; You’ve received a letter telling you to move your 1966 Ford Mustang out of your driveway because you don’t drive every day. OK, you say, “what proof do you have that it is not driven every day?”
“We have an anonymous tip from another owner,” responds the HOA Board member.
“Okay, I had a complaint. But what proof do you have that the Mustang is not driven every day? A simple complaint is not proof and does not rise to the level of a violation. You are supposed to investigate to determine if The complaint was fact or mere opinion. So what proof do you have? “
There is a good chance that the “complaining member” was none other than the Board of Directors itself, who simply talked about their Mustang at their last meeting. So there is no proof.
Write a summary of the meeting and conference. Indicate that the Director did not have proof of the infraction and, therefore, there is no infraction.
When the HOA sends you your next letter, usually a threat to move the Mustang or face heavy fines, you send a letter denying any violations. Remind them that they were not chosen correctly and that the results of the meeting and conference were favorable to you, not to the HOA.
The HOA is supposed to schedule a hearing where evidence of your violation is presented and then rule on the evidence and testimony provided at the hearing. Be sure to demand such a hearing and be sure to attend. It is a good idea to videotape the meeting.
Not surprisingly, the HOA will find in your favor, even when they have evidence to show that there was no violation, or they had no evidence to show that there was a violation.
Demand an appeal. Make sure to attend and yes, videotape it. At the Appeal Hearing, point out that the Board members were not properly elected and had no facts to support your earlier decision.
When the Board ratifies its previous opinion, demand mediation.
In mediation, pointing out to the mediator that the Board was not duly elected, did not meet and did not meet or consult in good faith, convened a disciplinary hearing without any evidence of a violation, ruled against them without any evidence that there was a violation, and he affirmed his ruling despite the lack of evidence and / or proof to the contrary.
The mediators will only want to split the matter in two; If you have been fined $ 1000, they will encourage you to offer $ 500.
Your next step is the most crucial. The HOA will expect you to pay, or in the most unlikely situation, to file an action in Superior Court to enforce the Governing Documents.
Instead, it presents what is called a “Mandate”. This is the proper place to appeal the Board’s decision.
While this will cost you some attorney fees, it is the winning decision. HOAs and their attorneys are generally unfamiliar with this particular court option and will be totally out of their reach when faced with a Mandate.
However, the Court of Deed will entertain you because you are appealing to an administrative body that has an obligation to accept and rule on the evidence and testimony presented. And, after failing to rule on the evidence, they can be overturned by the next higher court. In California, the next highest court above a Homeowners Association Appeal Hearing is the Superior Court Auto Judge.
If you have carefully collected the evidence listed above, it is very likely that it will prevail. Fines will be reversed, late fees, etc. they will be voided and the HOA will pay your attorney.
From then on, the HOA will likely turn a blind eye to your Mustang, or your child’s backyard basketball court, and look for easier victims.