Homeowners Associations - Do You Really Own Your Home?

Another thread got me thinking about this subject. Here in Johnson County, KS (“Homes Association USA”) almost all new housing and new developments are in Homeowners Associations. In fact, nearly everyone I work with is in one (I am not). Now, in thinking about this, it seems to me that when you buy a house in a Homes Association, you are in fact not the true owner of the home. Because a non-governmental entity with virtually no regulatory oversight whatsoever (the Homes Association) can at will place liens on your house, and in some cases even force you sell your house if the liens exceed a certain level!

Without debating the merits of Homes Associations themselves, does one actually “own” their home when in one? Or are they actually sort of tennants in a manner?

And no, the bank or mortgage holder does not own your home until you pay it off. They have a lien on your home. But unlike a Homes Assocaition, that can be paid off and their interest in your home permanently removed. And I also don’t think it’s valid to compare with property taxes and government foreclosure, because that is the government after all…

But seriously. Can you legitimately call yourself a “homeowner” if your neighbor Bob down the street can place a $50 ticket on your house for not cutting your grass to exactly no higher than 3.5 inches? (this happened to a co-worker)

“Because a non-governmental entity with virtually no regulatory oversight whatsoever (the Homes Association) can at will place liens on your house, and in some cases even force you sell your house if the liens exceed a certain level!”

Well… so can anyone who does work to/for a private residence not under the control of a H.A. If I owe a landscaping company etc. for work they have completed on my property, and this debt is in arrears, they can get a judgement and put a mechanics lein against my property and force sale of the residence to satisfy the debt.

If the main difference you refer to is that the H.A. is empowered to assess the lein directly without getting a judgement this may be true on paper but I can’t imagine there is no means under local and state laws to protest or appeal these actions. An attorney I am friends with does a healthy business representing Condo and Homeowner Associations against lawsuits by members and in suing members to force compliance etc (usually payment of dues in arrears).

I know it’s a bit of a hijack, but can you really be said to own your home if you have to pay property taxes on it?

Let’s say you buy a house for cash and are taxed at 1 percent of its value per year. Ten years later you retire on a fixed income, but the value of the property keeps going up. Your taxes follow suit, so eventually it is difficult for you to pay the taxes. Finally, you can no longer afford to pay the taxes and are forced to sell, or the government will take your home.

In California, we passed Proposition 13 many years ago to try to protect people from this situation, but new homeowners still must pay taxes on the fair market value of their homes. Really, you are just renting your home from the government.

How is this more OK than a Homeowners Association?

Your deed spells out all the things you bought. Read it.

When one purchases property in a homeowners association, one does not purchase the whole kit and kaboodle (i.e. “clear title”). The seller retains rights. Usually those rights include the establishment of a homeowners association. One’s deed requires joining that organization, pay dues, and obey the covenants that the HO sets forth.

There is nothing stopping you (along with a majority of others) from disolving the HO.

You are a fruitcake. I won’t hijack this thread, but you know who pays the police and firefighters? You know who pays for the streetlights to be turned on? You know who pays for the roads to exist? You do. You gotta pay taxes. Our tax rates are very low compared to other industrialized countries.

Now, back to the OP, I think that if you really wanted to, you could sue an HA under the constitutionality of such an arrangement (freedom of expression). I do see the concern, but, at the end of the day, I think that you can do whatever you want on your property. It’s kinda like the SDMB; you can say/ask whatever you want, just don’t be a jerk. There can be time/place/manner restrictions on 1st amendment issues, but usually “a man’s home is his castle.”

The question you’ve asked touches on some very tricky theoretical issues in real estate law. The short answer is yes, you do own your own home.

The longer answer begins with the question of what it means to own real estate. Most concepts in U.S. real estate law (and that of most other English-speaking countries) are derived from English fuedal land law from centuries ago. Springing from this is the fairly modern concept that ownership of real estate is considered a bundle of rights, which may be divided among multiple individuals and entities.

The most complete form of real estate ownership is known as “fee simple absolute.” (The term is derived from Old English, or possibly Law French, and I’m not quite sure of its derivation.) Even if you own property in fee simple absolute, you do not have free right to do what you will with it, because you are subject to such things as zoning, environmental law, public nusance law, landmarks preservation law, and other laws impacting land use.

Most homeowners do not own their homes in fee simple absolute, but rather own them in fee simple subject to encumberances. There are a variety of types of encumbrances, including easements, leases, liens and restrictive covenants. Most encumberances are considered to “run with the land,” that is to say that even if a landowner sells the land, the land is still subject to the encumbrance.

There is a complex system in which most encumberances are publicly recorded in the county land records so that a potential purchaser of property will be able to know the encumberance that the property is subject to. When buying real estate, purchasers will often obtain a title report, which lists known encumbrances on a property, and title insurance, which insures that there are no encumberances on the property other than those discussed in the title report.

Easements are encumberances that allow another person to enter on your land for some purpose. Common types of easements in residential areas include utility easements, in which a utility company is given the right to run pipes or wires across your land; common driveway easements, in which adjacent homeowners have the right to use the edge of the other’s property for a common driveway; and access easements, in which a person has the right to cross your property to get from a nearby property to a public street or way. If you have an easement on your property, you are considered to own the property, subject to the rights of the holder of the easement.

Leases are encumberances that allow another person to use a specified portion of your land for a specific period of time. Although leases generally require the payment of periodic rent, and the landlord may oust the tenant if the tenant fails to pay rent, this need not be the case.

Liens are encumberances under which a person holds an interest in property as security for the performance of some obligation. The mortgage is probably the most common type of lien. In a mortgage, a bank or finance company will lend you money in exchange for your promise to repay and a mortgage on your real property. Another type of lien is a tax lien, which your property will be subject to if you don’t pay your required property tax. If there is a lien on your property, and you don’t perform on the obligation as required, the lienholder has the right to forclose on the propery, selling the property to satisfy the obligation.

Restrictive covenants are certain types agreements that restrict the use of property among groups of landowners. Typically, when a developer subdivides a development (i.e. divides a larger property into smaller building lots), the developer will make all of the building lots subject to certain restrictive covenants. The objective of these covenants is generally to increase the value of the subdivision. Some common restrictive covenants are those that limit property to residential use, or that require that homes built on the property are set back a certain distance from the street. (A formerly common restrictive covenant was one limiting the sale or occupancy of property by race, but this has been held to be unenforcable by the courts.)

A homeowners association is a special type of restrictive covenant. All property subject subject to a homeowners association documentation of that fact in the land records concerning that property, and therefore any person purchasing property subject to a homeowners association is on notice of the fact of the association and the general terms under which it will operate. (All of this should be disclosed in your title report.) By buying such property, you accept the control of the homeowners association and the fact that it has the right to issue fines (and have a lien on your property if you fail to pay such fines) if you violate its rules.

Buying property subject to a homeowners association (or other restrictive covenant) is a trade-off. You may have to cut your grass to a specified height, but you get the assurance that your neighbors will also have their grass trimmed, preventing people from having untrimmed grass and thereby detracting from the neat appearance of the neighborhood. Admittedly, there are opportunities for abuse, but homeowners associations have the obligation to be reasonable, and anyone who purchase property subject to such an association should do so with an understanding of their strengths and weaknesses.

Yes a homeowners association is one of many types of legal agreement that does somewhat reduce the control you may have over property you own, but by buying the propery, you have voluntarily subjected yourself to its control (and given yourself the opportunity, in conjunction with your neighbors, to impose standards on the association). Though you may have a smaller quantum of ownership than someone that is not subject to a homeowners association, you would still be considered to be the owner of your home.

*Originally posted by sethdallob *

And you called douglips a fruitcake? I dunno, in GQ that’s actionable, isn’t it?

Bravo Billdo! What great and concise post! If that doesn’t cap this thread’s 'ass dead there’s no justice in this crazy world.

sethdallob, RM Mentock is correct: GQ is not the place for insulting other posters. You can say almost anything you like about the ideas of other posters, but no ad hominems. I realize that “fruitcake” isn’t exactly the worst insult I’ve ever seen, but we don’t want to set a precedent. Don’t do this again.

We now return you to your regularly scheduled discussion, already in progress.

Yeah, his ideas were nutty, hence the irony.

The whole basis of this thread is the contradiction between contracts and true freedom. If you enter into a contract (whether it’s with a bank, homeowner’s association, or a contractor), it wouldn’t be wise to then cry foul, and claim your signature isn’t valid because it’s a violation of your freedom of expression–that is, your free “right” to ignore it.

Not that I don’t agree with him. As Cuba Gooding once said, show me you’re nuts.

Billdo, thank you very much. I understand a lot more now.

The question came up because some of the Homes Associations in this area are really, really restrictive and notorious for jumping to slap a $25, $50, or even in one case a $100 ticket on someone’s house. This friend of mine had a project car, kept in the garage and out of view as the rules said, but moved it out for 3 hours to sweep and clean the garage. A neighbor called it in, and within 3 hours the Homes Association “Enforcer” came by with a $100 ticket.

The thing that really gets me is - there is no practical way to appeal. He tried to reason with the “Enforcer”, and the Enforcer apologized, but said if another resident actually complained, he had to ticket. And could not reveal the name of the other resident. AND - there is no appeal process. You pay, or you sue, or you live with the lein on your house. Three choices, pick one. And most people do not have the time and money to hire an attorney to sue their Homes Association - and the Homes Association get to use their own monthly dues to hire an attorney to defend themselves.

And their rules are normally terse and almost arbitrary. “No non-operating, non-tagged, or non-insured car is allowed outside of the attached garage.” There is no time limit there, no exceptions. If your battery is dead one morning, well, be ready for that $100 ticket. Sigh. I don’t know why it bothers me so much, when I don’t even live in one. Maybe I’m just looking for a reason to rant.

Billdo covered the whole field. There is nothing more to be said re fee simple estates. (Don’t get into other freeholds, such as fee tails, please.) However, I want to point out that the word is “encumbrance” not “encumberance.”

When did I say I didn’t want to pay taxes? Point me to the exact spot in my post I said I didn’t want to pay taxes. Further, point me to the point in my post I complained that our tax rates are higher than other countries.

Read my previous post again until you realize I disagree with property taxes. I’m perfectly willing to pay for roads and fire departments and libraries through taxes, I’d just like the taxes to have at least some connection to my ability to pay them. I think I was pretty clear with my argument about retirees potentially getting screwed.

Perhaps the ideas are nutty, perhaps not. I just disagree with taxing people and taking their homes if they can’t pay the tax. Income tax, at least, implies I had some income, so I should have some left to pay tax. Property tax just sucks. Sure, it’s easy to point to some shmoe in a 37,000 square foot villa and say “It’s too bad if you can’t pay - sell it!” But, what about the old retired couple in a 1,000 square foot home with zero income other than social security?

OK, that’s far too much of a hijack already. If anyone says anything else about property taxes, I’ll just take it to GD.

There are a lot of people who find the imposition of taxes, of various sorts, to be a) unconstitutional b) irrational c) discriminatory d) unfair e) all of the above. Often, those people are labeled nutty. It doesn’t help that they often call others fruitcakes. I mean, it doesn’t help their case much.

In many homeowner disputes, it is neighbor vs. neighbor, often because some petty strife has escalated. I’m not sure why Anthracite’s friend’s neighbor called the covenant goons, but most often such things stem from earlier irritation. I’ve known folks who’ve lived next door to each other for years, and then there they are, going at each other with sledge and ax. If they’re really pissed, they use a lawyer.

So what that other industrial countries have a higher tax rate - that’s their problem, we have to deal with our own way too high tax rate.
IMHO property tax is one of the worst taxes ever devised. Income taxes make sense you earn X dollars and Unc. Sam gets his cut, sales tax ok too. But to pay taxes as long as you own a piece of land WTF. What if you had to pay tax on your TV every year?

OK, OK, I’m sorry I hijacked this perfectly decent GQ thread.

Anthracite, my personal apology - I didn’t intend this to go so far out of whack and I shouldn’t have posted my original rant.

That said, everyone who wants to bitch for/against property taxes go here.

One of the big problems I see is that once an HA is established, neighbors start treating the neighborhood as a legalistic environment instead of, well, a neighborhood. These things could be handled in a decent way, just like the HA association could be flexible in situations like your friends. But too often, they don’t.

We got into this with our condo association. Our condo board got all of its advice from a very good lawyer they retained. Thus, every issue was handled in the most official, litigation-avoiding way possible–in other words, very official letters, swift and mericless imposition of fines, etc. That’s one way to do it, and sure, it guarantees consistency, but it’s not the only way. If someone doesn’t have their holiday lights down off their roof by the allotted time, do you want an HA who immediately tickets them with a stern bitchy letter? Or do you want one that makes a phone call and finds out the owner had back surgery and can’t take them down without the assistance of a neighbor? Yes, worst case scenario, the lazy neighbors across the street who get a well-earned holiday light fine the next year can raise a fuss about “unequal enforcement.” But this is a neighborhood. I’d rather not start being sh*ts to each other just because of some hypothetical future situation that might or might not happen. I’d rather treat people like neighbors.

I know our condo association lawyer would be in knots right now trying to type 90 words a minute to tell me how naive I am, if he were in this thread. Well, so be it.

My pleasure, Anthracite. I’m sure you’d do the same if I had a question about coal-fired generation. :slight_smile: Actually, I’m quite pleased to respond to one of your questions because I’ve gotten so much out of your energy posts.

As a member of the board of directors of my Cooperative Apartment Building (coop), which is similar in some respects to a homeowners association or a condominimum but very different in legal organization, I am personally very happy at the great freedom from judicial second-guessing they give the boards of such organizations. On the other hand, as a real estate lawyer that has to deal with such boards fairly often, they can make me want to tear my hair out.

Barbitu8, you’re right about the spelling. But don’t worry, I won’t get into fees tail (though when I was a newbie, in some of my first posts I tried to explain the Rule against Perputities).

That’s fee tails, not fees tail. And I know you misspelled “perpetuities” just to annoy me.

Well this thread has been interesting to me, not because I was interested in the OP as such, but because I learned of these things called Homeowners Associations. Fines for not mowing the lawn to 3.5 inches or leaving a non-operative car outside? Never mind America being the land of the free and home of the brave. Home of the utterly conformist, anal retentive by the sound of it. (Yes, yes I know you’re free to live outside a Homeowners Association estate, but it all sounds a bit pervasive, at least in Anthracite’s area).

Anyway, as an Australian lawyer it was interesting to hear how much of the English land law tradition we have both inherited.