is beating bushes for justice in neighbor matters
By Laurie Roberts
Article Courtesy of The Arizona Republic
February 8, 2003
|It's been six months now since Marie Brown
was put out on the curb by her homeowners association, weeded out for what
at the root of it was an unpardonable sin:
Not trimming the bushes.
Now, the landscape could be about to change for Westbrook Village and all the other HOAs that would kick an old lady out of her home over a few thousand dollars in disputed fees.
There's a move afoot in the Legislature to make it more difficult for HOAs to foreclose on old ladies or anyone else who refuses to pony up for the various fees and fines levied by the neighborhood guard dog.
This, we call a major prune job.
"No one should be able to take my house because my shrub in front is not the size that some busybody driving by thinks it ought to be," said Pat Haruff of the Coalition of Homeowners for Rights and Education.
HOA advocates say the bill is too drastic, protecting those who break the rules while raising costs for everybody else. In other words, protecting people like Marie Brown, who these days is living in a hotel after being evicted in August from what had been her home for 17½ years.
"Should public policy be created," asks HOA attorney Scott Carpenter, "based on when a grown adult who owns a home, who has contractually agreed to the lien, decides for whatever reason to ignore the judicial process as it went through?"
The answer, of course, is YES.
Yes, because the law as currently written makes it virtually impossible to fight an HOA when it levies a fine for, say, leaving your garbage can out too long. As it now stands, the HOA can levy a fine, rack up outrageous attorney's fees if you try to dispute it, and slap a lien on your home for an amount many times the original penalty - all without ever having to prove to anyone that your garbage can was actually out too long.
Yes, because the law as currently written allows HOAs to go to court to foreclose on your home and auction it off to collect on the lien - with none of the homestead protections that other homeowners enjoy.
And yes, because there are other ways that HOAs can collect from deadbeats, the same methods employed by every other sort of business from time immemorial.
I can understand why HOAs wouldn't want to give up their rights. The question is, why would people who live in them want to give up theirs?
I'm guessing most people don't know that when they buy property in an HOA, they give the association the authority to automatically slap a lien on property and ultimately to foreclose.
While every other homeowner in Arizona has a homestead exemption that automatically protects the first $100,000 of the equity in their homes from judgments, those living in HOAs unknowingly sign away that right.
Farfetched, you say, that you could lose your home over garbage cans or bushy trees? Think again.
"It happens all the time," Haruff said. "I have a binder filled with things. I mean, it's unbelievable."
Under Rep. Eddie Farnsworth's bill as he plans to amend it, HOAs still would have plenty of power tools in the shed. They still could file liens for fines and penalties. They'd just first have to convince a judge that they are justified. They still could automatically file liens for unpaid dues. And they still could foreclose - if they can wait seven to 10 years.
In other words, HOAs would have to collect the way every other business does it: either by getting their money when the house is sold or by going after wages or bank accounts.
As I said, the landscape could be about to change: no more mowing down the neighbors.