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Monday, March 24, 2008

Homeowner Needs Help with HOA Issue

I get many emails from homeowners who are having problems with their Homeowner Associations, and are seeking advice.  I'm not an attorney, so I can't offer advice on how to handle specific HOA problems.  But I've been there myself, so I found the email below particularly interesting.  Without revealing any personal information, I'm posting the majority of the email along with my response:

"I don't know if you can help me with this but if you can offer some help or direction that would be greatly appreciated.  I have a truck that I have had parked on the side of my house for four (4) years.  Nothing was ever said.  Now, I have received a letter from my HOA telling me I can't park it there because it can be seen over the gate.  Maybe six (6) inches of the roof.  And, that it is parked in a "Landscaped Area", which it is not. It is a utility area that is not landscaped at all.

We buy these houses with big double gates so we can utilize the area behind these gates for things like this.  I can understand if it was something offensive, but no one has ever complained or said anything about the truck being there till this.  Any help?"

My Response...

"...I'm sorry you're having a problem with your HOA.  I had a similar problem myself and know first hand how frustrating it can be.  Obviously, every situation is different and your situation is probably based on very different facts, CC&R's, legal principles, etc.  And I'm not sure if you're in Arizona, but state laws also can affect your situation.  So the best advice I can give you is to seek advice from an attorney, which I am not.  From a homeowner standpoint, I can tell you that when I consulted an attorney in a HOA situation several years ago, the advice I was given was to work within the neighborhood to gain support and resolve the problem.  Here's what happened to me several years ago:

We had a nearly new pickup truck parked in the 'third-car' area of our driveway.  But it wasn't paved like the rest of the driveway, it was covered with rocks.  The truck was driven every day, and we had been parking it there for about 3 years or more when a certain Board member decided to make a stink about it.  Our attorney told us that in our case, by allowing us to park there for several years, the HOA had given us "constructive notice" that it was allowed.  Our CC&R's did not specifically prohibit it, however they did not specifically allow it either.  So our attorney claimed that in the absence of a restriction, it was permitted.  Then the Board member tried to use some vague landscaping clause to make us stop parking there.  Of course, there were others in the neighborhood who parked in a similar manner, so we found them and got them to show up at the next meeting for support when we addressed the Board.  Since only a few people usually showed up to Board meetings, we only had to get a few neighbors to show up to have overwhelming support.  We also went to each of our immediate neighbors and had them sign statements saying that we had been parking there for years and they had no problem with it.  Additionally we went door-to-door and asked other neighbors who agreed we should be able to park there to sign a petition so we could amend the CC&R's to specifically allow it.  We came up just short of the 2/3 required for an amendment to the CC&R's, but it was enough to make the other Board members agree to drop the issue.  Shortly thereafter, the Board formally adopted a policy which allowed parking on rocks with certain criteria, which we met.  End of story.

Again, your overall situation is different than mine, so you should speak to an attorney about the legality of your issues.  Much of the HOA's power comes from the CC&R's and an attorney can explain your rights under the CC&R's.  From a non-legal standpoint and from my experience as a homeowner, the power a HOA has comes from its members.  The unfortunate truth from my experience with HOA's is that in many cases, most members don't care and won't get involved in things they don't care about.  But if you can find those neighbors who are in similar positions, you may find strength in numbers.  Or you might find that others disagree with you totally and you are the minority in your neighborhood.  But chances are, there are others out there who recently got notices to stop doing things they've been doing for years also.  Did you recently have a new Board member elected who might be pushing a stricter agenda?

Again, other than telling you of my experience, you're in lawyer territory!  While I can't advise you on how to handle your situation, I hope my story helps.  And I wish you the best of luck in resolving your HOA issues.

Sincerely,
Shannon

Hope you found this interesting too.  Have a great day!

Written By: Shannon Hubbard Realtor®-Investor Great American Realty, Inc. Cell: (480) 695-6672 Email me

Posted by Shannon Hubbard, AZ Realtor & Computer Guru on March 24, 2008 | Permalink

Comments

We had a similar problem with our HOA. They were trying to abuse there authority too. We won our case because there was no specific rule prohibiting us from parking where they told us we couldn't. Our lawyer said since property owners have the right to use and enjoyment of there property then that means you can use it for wahtever purpose you want unless there is a law or other restriction prohibiting that use. Like you said, in the absence of a restriction it should be permitted.

Posted by: David | Mar 25, 2008 9:47:46 AM

Thanks for your comment David. I think you posted it to the wrong article though, so I moved it here for you. Again, thanks for stopping by!

Posted by: Shannon Hubbard | Mar 25, 2008 9:48:14 AM

No matter who buys the place, you should feel free to stay there. Squatters rights and all…

Frog: Sure! You give us 100% of selling price, and we’ll finance whatever’s left… 8-)

Posted by: John beck | Mar 26, 2008 12:34:40 AM

John, I have no idea what that means, but thanks for stopping by!

Posted by: Shannon Hubbard | Mar 30, 2008 12:37:07 PM

an hoa is like anything else. what you get out of it depends on what you're willing to put into it. if you are unhappy with your hoa, go to meetings. get involved and get others involved to make positive changes.

Posted by: ericka from scottsdale, az | Mar 30, 2008 2:15:08 PM

Ericka - I agree with you. I have seen many HOA's that could be greatly improved if more people would just get involved.

Posted by: Shannon Hubbard | Mar 31, 2008 6:28:51 AM

Is this an assigned parking spot? Are you only allowed so many? I'm afraid when you buy a condo you are also buying into their rules. The 4 year timeframe is irrelevant in this case I'm afraid. Maybe with new people on the board comes new enforcement of the rules. Anyway, that's my 2 cents.
Warm Regards,
Rob
http://www.battlecall.com

Posted by: Rob Lawrence | Apr 6, 2008 12:35:06 PM

Hi Rob,
No, this is a house not a condo. But you're right: "with new people on the board comes new enforcement of the rules". Different people on a Board can totally change the way the same rules get enforced. Thanks for stopping by!

Posted by: Shannon Hubbard | Apr 6, 2008 4:09:25 PM

Is there anything that can be done if the HOA management company is not consistantly enforcing the rules on the CC&R?
EX: no parking on the street however there
are always cars on the street) and enforcing rules
that our NOT listed in the contract. They are also
selective on who they enforce rules. Since our
subdivision is still under construction our HOA is run
by a management company meaning none of home owners
can have any imput. Is there anything we homeowners
can do when a management company refuses to follow
through with the written rules?

other ex: They stated they won't enforce homeowners
that don't walk their dog on a leash because they
stated they can't proove whose dog it belongs to even
though the neighbors witnessed it. They also told us
that they could not enforce homeowner to pick up their
dogs waste (even though we witnessed which owner
allowed their dog to do so) stating they would need to
run a DNA test to prove whose dog the waste belonged
to (both of these are rules listed on the HOA
contract)
They also refuse to show us the financial books!

Posted by: tricia | May 19, 2008 12:29:36 AM

I have lived in my patio home in Mesa for almost 15 years, love gardening, and take pride in my home and yard. Until we got a new property management company, I had no problems. But in the past 3 years, I have received 6 violation letters, all of them confusing and downright infuriating. For instance, I got a violation for having a frostbitten bougainvillea in January days after a hard frost; a violation because some of the Bermuda grass growing in the rocks in my neighbor's yard had tendrils trailing slightly over my property line; "debris" written up the day after a monsoon storm, etc. I received a "Final Notice" threatening legal action (I had received no prior letters on this) because a friend dropped by for a few minutes on a Sunday afternoon and drove the front end of his car over my rocks by about a foot because his car was leaking oil and he didn't want to have it drip on my driveway - he wasn't there for more than an hour.

When I challenged them on these, they backed down and agreed they were silly, and reversed them, although they said parking on the landscape was serious and that's why they sent that "Final Notice." He wasn't "parked" on the landscape - 90% of the car was on the driveway.

The latest this week was for a painted gate which I had painted 9 years ago in the then approved colors for wood trim on our homes. There was nothing in the CC&R's at that time against painting the gates, but the HOA came out with a supplement in January 2008 about having wood gates left the natural wood color and not painted, and that was what the property manager cited. Can they come in 9 years or 12 months after the fact and make you change something expensive like that when you were compliant when you did it years ago and no one has said anything about it in all that time?

It seems like they are LOOKING for something to send me a violation on. My next door neighbor has received no violations in spite of the fact he had a dead Queen Palm in his front yard for months, etc. If my subdivision were immaculate, or if everyone were getting these letters, I would not complain, but it is in a lower-middle class neighborhood full of renters, and the same houses remain in the same state of disrepair and neglect year after year, while I am out weekly maintaining my yard, and feeling singled out for getting silly violation letters?

What is going on here? I cringe when I see an envelope from the property management company. I used to love this neighborhood.

Posted by: P. Seliger | Nov 22, 2008 6:41:04 AM

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