I am not a lawyer, but I can’t see how this is relevant.
Check this out if you’d like, while a Texas State appellate court ruling, it basically is ruling on the common law rule against perpetuities, a homeowner tried to sue a homeowner’s association on the basis of the association violating the rule.
The court’s most salient point in its ruling (against the homeowner) was this:
Thanks, that makes sense.
Does that mean they are (must be?) part of the title registration process, like liens?
Some locales have gone to computerized title registration, and the accompanying law says that the title registration as entered in the system is the one and only valid title entry. So if a CC&R does not get properly registered, is it deemed not valid?
What state? I’m not doing a 50 state survey and I don’t want to guess which state you are talking about.
He mentioned Montana earlier.
dolphinboy said Montana. md-2000, to whom I was responding, didn’t specify.
Ah, I misunderstood the question and the questioned.
I am surprised Canada does not have them.
HOAs are a great example of private property owners protecting their property. Instead of rules on a municipal or state or federal level you have a very local group agreeing to rules. Without rules, all sorts of bad things can happen.
Sure there are stories of HOAs run amok but likewise there are stories of people living next to a hoarder with a Winnebago on blocks decaying in the driveway and an uncut lawn with the smell of a meth lab wafting out of the place. Not good if you want to sell your house that is next to it.
HOAs are not an evil monster as many portray them. They are something local property owners willingly create because it is to ALL of their benefit.
What could be more democratic than that?
The single biggest reason for most HOAs being established is because homes are built in developer-created projects that are outside of municipal boundaries. This means they do not have local Code Enforcement to make sure you cut your grass, they don’t have the city road crews to plow the streets, they may not even have access to municipal water and sewer (so they might have to contract jointly with an entity to get good rates.) Many counties in the United States do not provide the level of governance that municipalities do, so unincorporated communities outside of a municipality would be broadly unregulated.
When it’s a bunch of rural homes long established and not all on top of each other, people have less concern, but in planned communities where everyone is on .3 acre lots with 500 houses in a development, it has more of a communal impact how you behave, which is the reason cities actually regulate homeowner behavior in the first place.
If you also think about the damnable aesthetic sameness of many of these developments, it’s kind of a recipe for disaster.
In the early days, the developer benefits from the ‘picture-perfect’ quality of these little boxes made of ticky-tacky and the elysian, Norman Rockwell-esque existence that they portend.
But that sameness makes anything and everything else stick out like a sore thumb: long-ish grass, a different color paint, a basketball backboard over the garage, curtains [EGADS!] instead of blinds, that work truck, your beloved 1972 Ford F100 into which you have poured blood, sweat, and tears, and which is nearly Pebble Beach worthy, leaving your garage door open during the day (think of the children !!), etc., etc.
Having eight floor plans and five paint schemes doesn’t look like diversity when you drive past it. Having street after street of “which house is ours ??” is a uniformity that pays dividends to the builder (fewer SKUs = cheaper construction costs) but:
- Nobody ever expresses a preference for vanilla-appearing houses, and
- Nothing says those savings are passed along to the buyer in a market-driven economy, and
- Once you own, you have to live with it, and some neighbor is bound to obsess over the exact Sherwin-Williams color that you used to stain your back fence, even though 99 out of 100 people would swear it looks like all the others.
Look around at older, more established, pre-HOA neighborhoods. There’s no end of diversity. It’s just harder to spot individual differences because of the surfeit of differences, large and small.
And that’s if we don’t get into the notion that – much like government – HOA governance often attracts the wrong kind of people.
You want good, decent, ethical, objective, fair-minded, responsible, rational, thoughtful, and relatively seasoned people on the Board of Directors for the HOA in your neighborhood.
But not only do those people tend not to volunteer; they also tend not to even attend meetings, which far too often look like the unmoderated comments section on your local newspaper’s website.
And … yeah … municipalities salivate at the thought of collecting property taxes from all of these homeowners – people who are also paying HOA fees – and not having to deliver services to them.
Often, the municipality washes their hands of the whole community, even on things that are commonly Police non-emergency matters or City Code Enforcement issues.
“Take it up with your Homeowners Association” is a common refrain.
And then there’s the perverse influence of industry lobbying organization, Community Association Institute and the work they do to further enhance the judicial advantages of the associations over the individual homeowner.
Things like the Business Judgment Rule which was originally promulgated to protect corporate officers from charges of malfeasance by raising the bar. You had to prove that they acted in bad faith in order to prevail.
But the Business Judgment Rule has been applied to HOA Boards as “Judicial Deference,” meaning that Courts in many states refuse to 'substitute their judgment for the judgment of an HOA Board."
HOAs can be exceedingly difficult to beat in Court, regardless of how meritorious your claim.
Meanwhile, your community hates your guts.
And Norman Rockwell is nowhere to be found.
My mother’s mired in one of these things right now. A 50 year old complex that didn’t bother to squirrel away any reserves for galvanized plumbing with a lifespan of 30-50 years.
And the leaks just keep on coming.
And the HOA is being shockingly unreasonable, preferring to just “deal with the leaks” as they arise, rather than bite the bullet and put a plan in place to re-pipe the complex, that requiring the cojones to face your neighbors and admit that – somebody, somewhere, at some point in time (maybe including the speaker) – fucked up, and didn’t plan for this.
But, hey: how about those reasonable monthly HOA fees, eh ?
Which causes immeasurable pain for the affected homeowner – pain, money, time, stress, and – in my mother’s case – being dropped by your insurance company for “excessive claims and the general lack of appropriate upkeep of the property’s common areas (ie, the plumbing).”
If you don’t like the way a company in which you’re invested is run, you click the mouse a few times and sell your shares.
Bam. You’re out.
Getting out of your home for similar and substantive reasons is profoundly more difficult – nigh unto impossible for some.
And I won’t bother with the long list of investors who make it known that they’re ready to snap up properties for cash when a homeowner is in default. The HOA model is rife with perverse incentives.
If you’re in an HOA that is running smoothly, count your blessings. It could easily change tomorrow, though.
“The judicial deference doctrine does not shield an association from liability for ignoring problems; instead it protects the Association’s good faith decisions to maintain and repair common areas….the essence of an association’s duty to maintain and repair is a duty to act based on reasoned decision making.” (Affan v. Portofino Cove HOA (2010) 189 Cal.App.4th 930,942.)
Your mom needs to talk to an attorney. If the HOA is responsible for those repairs then they need to see to it and cannot endlessly ignore the problem.
I think that’s why we don’t have them in Ontario. There is no concept of an unincorporated area, rather there are upper tier municipalities of Counties, Unified Counties, or Regional Municipalities. There may be a lower level municipality like a town, but if one does not exist they are still a part of upper tier municipality. Toronto is a bit weird because they merged all the lower tier (5 cities and a borough) with the upper tier Metro Toronto in 1998 leaving just one. I know some US cities are coterminous with their county, that doesn’t occur in Ontario.
That’s a fascinating case. Thanks for bringing it to my attention.
I’ve mentioned a few times that my mother should speak with a real estate attorney.
But she is in her 80’s, and even this (Affan) case was complicated, full of judgment calls, went to the Court of Appeals, and really could have gone either way.
I’m more familiar with Lamden, referenced throughout Affan. Even Lamden wasn’t finalized until it reached the California Supreme Court.
These things are complicated, frightfully expensive, and – notably in Lamden – often draw the attention of industry interests (read: attorneys) who sometimes join in as ‘friends of the court.’
David and Goliath stuff.
I do think it’s a fascinating and applicable case, but I am absolutely loath to see my mother enter into litigation at this late stage in her life. It breaks and bankrupts much younger, much more affluent, much healthier people.
It also reminded that ‘the best battle plan seldom survives first contact with the enemy.’
These people will fight back. Hard. And their bills are paid (via leviathan insurance companies who will provide aggre$$ive and expen$ive representation) – paid, in the end, by my mother and her neighbors.
And appeals take years. And loser could be hit with winner’s costs and fees.
I think it’s time to close this thread. I spoke to an attorney and he agreed that I am under no obligation to sign the CC&Rs given that the HOA lapsed into a voluntary HOA. Apparently, this group of homes had no registered CC&Rs for a year, during which time I purchased my house. A huge unforgivable mistake on the part of the HOA Board, but nevertheless they left it wide open for new home buyers to opt-out. BTW, I received a letter from the HOA’s attorney that reiterated that I wasn’t subject to any of the previous CC&Rs and could choose to join or not. Why the HOA would pay an attorney to send me a letter that backs up my position is beyond me.
So what happens next? Last week I got the permit for my Kayak Rack and that took some of the air out of their sails. The HOA President was on the Zoom call and had 3 letters from neighbors complaining about it, but the County said it was legal and that ended the discussion. According to my attorney, the best thing the HOA can do is disband and start over. If they involve the homeowners in drafting new CC&Rs and remove the onerous parts, I might even be willing to sign off, but that’s a big if. I have all of the leverage here and can sit back and do nothing. When I die, my wife will sit back and do nothing, and when she dies my kids have agreed to sit back and do nothing. Until they get 100% of the property owners to sign off on the existing or new CC&Rs they can NEVER BECOME A MANDATORY HOA . I figure for the next 40 years that’s not going to happen unless they change their position and agree to start over.