Homeowners, beware the association


Article Courtesy of NewsChief.com

Posted on March 17, 2009 

They can dictate the color of your home. They can tell you the length and height of your fence, when you must repair your roof, and, worst of all, they can levy a fine and place a lien on your property and foreclose on it for nonpayment, or even delayed payment of an assessment, however small. Extreme cases have occurred whereby a home was sold for nonpayment of an assessment as small as $100.

"They" are called homeowners associations (HOAs) and they threaten homeowners everywhere.

There are approximately 250,000 HOAs in the United States and they control the lives of about 50 million people. Approximately 50 percent of all new home construction in the U.S. in major metropolitan areas falls within the purview of a homeowners association.

Homeowners associations sprang up in the 1970s in California and have proliferated ever since. Supporters of HOAs argue that they help maintain order and property values and serve the best interests of owners in general. Supporters are convinced that association rules prevent chaos such as motorhomes left in the driveway, oddly painted units, dilapidated pickups left on blocks and poorly maintained landscaping. For some owners, a disadvantage of living under an association is the requirement of mandatory membership with the accompanying financial burdens of dues and assessments.

Living in an association-controlled property subjects homeowners to total control of the decisions of boards of directors, who have the responsibility of collecting the fees. Because there is a contractual obligation between the owners and the association, the board has the power to place a lien on the owner's property and then follow this with foreclosure proceedings if an assessment is unpaid, or even late. To cover a small assessment, the owner's home can be taken away from them.

Do you think this could never happen to you? Read on!

Emotionally entrenched boards may indulge themselves in heavy-handed and erratic enforcement of governing documents and even make up their own rules as they go on, thus violating homeowners' rights. Association boards can take the position of wielding a big stick and conducting themselves unfairly and sometimes outrageously. If HOAs dislike an individual, they are in a position to punish without recourse.

Associations are, in effect, "mini-governments" with few checks and balances. Dissenting homeowners find that complaining is often futile. Militant boards with unreasonable ideas can make for unpleasant and costly results for those who challenge them. Boards have the option of imposing fines and other sanctions against owners, without resorting to the legal system. Those who feel that their rights have been violated, or who want to challenge the board, have no recourse other than to resort to the courts, which is costly.

Perhaps there is nowhere else in our governing system where so much power is given to "rank amateurs," with little or no checks and balances. If these "rank amateurs" are decent and honorable people, sensitive to the needs of ALL members, then there probably will be no problem. Fortunately, most associations function in this manner. If yours does, consider yourself fortunate. A militant and heavy-handed approach to governing can be very traumatic and painful to those who disagree.

There is great potential for abuse in the system and state legislatures are struggling with this problem. Cases of abuse are many in Florida and the Florida Legislature is well aware of the problem. Under pressure from constituents, at least one, possibly two legislators are pushing for the removal of HOAs' ability to place liens.

Florida law creating and regulating HOAs was passed in the 1990s and, unfortunately, does provide that a lien may be secured against a member of a HOA for nonpayment or delayed payment of an assessment. It can be safely assumed that the intent of the law was to trap scofflaws and chronic nonpayers (deadbeats). It is doubtful that legislators were targeting HOA members who merely question certain expenditures or budgetary items or request clarification. That is precisely what happened to me in 2006. Read on.

The HOA in our Winter Haven-area neighborhood, the Estate area of Orchid Springs, was formed in 1987 to oversee matters of common interest, principally the resurfacing of the roadway. I served five years as president and the organization functioned for many years in a benign fashion. Tranquility was ever present and no problems of significance were encountered.

It was not possible to imagine the problems that lay ahead beginning in 2006 when a new and very different board was seated. Under this new board, spending dramatically increased, and not always wisely. Any challenges were met with cold indifference; the board had already made up its mind. In the 2006 budget, certain line items were unclear to my wife and me and we requested clarification, and we clearly indicated that we would promptly pay our annual assessment upon clarification. Florida law clearly states that this must be provided.

The board chose to ignore this contractual obligation and chose instead to place a lien on our lovely home of 30 years and our adjacent lot. This home has been paid for - for many years - and to make matters worse, the board retained the services of a Lakeland attorney who demanded that we pay, within 10 days, the $900 assessment plus his legal fees of $1,800, for a total of $2,700. If not paid within 10 days, then he would commence foreclosure, which is tantamount to taking the home away from us and literally selling it on the courthouse steps in Bartow. Unfortunately, Florida law allows for this terrible action, by a board that is obsessed with power and control.

Devastated and faced with loss of our home, we had no choice but to pay up - and quickly.

Yes, this actually happened in East Polk County and it illustrates just what can result when a board develops an "attitude" and asserts control over members in a homeowners association.

Though California has had the worst problems with HOAs, Florida is not far behind. An ad hoc committee was appointed in the Florida House last year to address the large number of complaints of HOA abuse. Limited legislation was passed, but the ability to place liens is still on the books. I have volunteered to appear before the Legislature to share my experiences of HOA abuse, at the hands of a militant board that chose to inflict pain rather than act in good faith by providing requested information.

I have been told that there are so many cases of abuse in Florida that my story would be only one of many. Apparently, boards running amok in Florida are not rare. Knowing what I know now, I would NEVER locate in a neighborhood where a HOA exists.

I would advise anyone to seriously consider the pros and cons of locating in a development where membership in the HOA is mandatory. Unfortunately, it is too late in life for my wife and me to consider relocation, though it is at times tempting. As in card games, you sometimes draw a bad hand.

Donald L. Arey Jr., M.D., of Winter Haven is a general and vascular surgeon.