The runaway power of homeowner's associations

Article Courtesy of MSN Real Estate

By Debora Vrana
Posted on Sunday, July 30, 2006


For more than 57 million Americans, homeowner's associations regulate everything from the color of their home to when they can have the garage door open. They also can force homeowners into foreclosure.

Wind chimes hanging from front porches, basketball hoops in driveways, shampoo bottles on bathroom windowsills. Innocent markers of daily life? Depends on where -- and among whom -- you live.

For the 57 million Americans living under homeowner's associations (HOAs), these can be flagrant violations of their neighborhood regulations, costing them hundreds in fines -- and at the worst, their very homes.

"No one tells buyers what deep doo-doo they can get into," says George Staropoli, who lives in an HOA in Scottsdale, Ariz., and founded Citizens For Constitutional Local Government, a homeowner's rights group. "It's a government outside the U.S. government."

Indeed, HOAs are free to regulate practically anything, so long as they don't violate state and federal fair housing laws regarding age, race or handicapped access. (An exception is made for senior living facilities, which can regulate the age of residents.) While most HOAs focus on controlling the cosmetic aesthetics of a neighborhood or building, there seems to be no detail too mundane to escape their attention.

The dog in the lobby
Pamela McMahan didn't expect her cocker spaniel to become a problem at a historic condominium building in Long Beach, Calif. But she was fined $25 each time she walked her dog through the lobby because HOA rules required all dogs to be carried. McMahon, an elderly woman who walks with a cane, said she couldn't carry the dog. She racked up hundreds of dollars in fines last year and has since moved from the building.

"There are just too many things going on in the lobby; the dog might jump on someone or go to the bathroom," says Stormy Jech, an assistant property manager in the building.

Other things HOAs commonly regulate include:

  • Shingles and exterior paint color.

  • Fences and hedges: whether you can have them at all, and if so, what type, color and how tall -- right down to the inches.

  • Trees, lawns and weeds: what types of plants can be put in and even how many times a month you must water and mow your lawn.

  • Pools: These are often hot-button items. Boards regulate whether owners can have pools, diving boards and how large they can be. Community pools often come with strict rules on times they can be used, supervision of youngsters and whether guests are allowed.

  • Swing sets and basketball hoops: At some communities these are big no-nos. At others, they must be small and out of sight. Owners often get into trouble if they are in the front yard.

  • Garages and sheds: Unauthorized sheds are another sticking point, and junky garages will get you in trouble, as will leaving your garage door up.

  • Mailboxes and garbage cans: size, color and types. Also, leaving garbage cans out for more than a day can get you fined.

  • Pets: size, type and breeds. Dogs off leashes are usually prohibited.
  • Outdoor lights: One family got in trouble for leaving their tasteful, white decorative Christmas lights up until February. Know what types of lights and how many are allowed.

In addition to setting standards for your own home, homeowner's associations usually require members to pay fees for common property maintenance. The assessments can run particularly high if the development has a pool, golf course or other recreational facility. And many HOAs let their boards raise regular dues up to 20% per year and levy other fees for capital improvements.

Beware what you're buying into
Some people love the security of an HOA and the rules designed to protect property values. According to a study by the Community Associations Institute, which represents community associations, more than 70% of people living in HOAs have had a positive experience. The danger is that most homeowners, especially first-timers, don't realize the extent of the control these associations have until it is too late.

Even if homeowners get copies of the covenants, conditions and regulations, it can be hard to decipher them. The rules are often written in legalese and can be 100 pages or more, leaving owners without a clear understanding of the extent of the regulations or what can happen if they don't comply.

"Basically, you have people who own their home, but are being treated like tenants," says Janet Portman, a managing editor at Nolo Press in Berkeley, Calif., and author of "Every Landlord's Legal Guide." "People running these associations can get into real power trips."

One homeowner's association in Arizona paid residents to turn in neighbors who violated association rules. Those reporting someone with a dog not on a leash got $100; someone reporting a resident throwing away trash not allowed in a dumpster got a $150 reward.

Vindictive as that may sound, it pales in comparison to other HOA nightmares:

  • Marie Brown, a 77-year-old widow in Arizona, was evicted from her home of 18 years after it was foreclosed when she failed to pay her association dues and fines levied for failing to keep up her property.
  • In Sea Ranch, a managed community in Northern California, a widower had his home foreclosed on in 1995 when he didn't pay $600 in owed association dues. The house, worth more than $300,000 at the time, was auctioned and sold to someone for $2,000, according to his attorney. After a protracted legal battle, he got his home back.

Even a small amount of money can get homeowners in big trouble. Just ask Tom and Anita Radcliff, a retired couple in Copperopolis, Calif., who had their home foreclosed by their HOA in 2002. They were late paying $120 in annual dues when Tom Radcliff became ill. Until then, they had paid dues on time for five years straight.

"They didn't even know about the foreclosure until someone came and gave them a 30-day notice to vacate the property," says their attorney, Michael Macomber, who filed a suit on their behalf  and was able to get their home back. "Why didn't someone just pick up the phone and call them?"

Messy, personal business
Unlike most laws, which are enforced by nameless bureaucrats, conflicts in homeowner's associations can get petty and personal very quickly.

"When you have a neighbor being put in charge of you, it just breeds resentment," says David Feingold, a San Rafael, Calif., lawyer who has represented homeowner's associations in disputes with neighbors for more than 10 years.

Sometimes the group responsible for enforcing the rules, a volunteer and elected board of directors, gets carried away with its role.

"Homeowner associations will dig in like nobody's business and will spend obscene amounts of money to enforce their rules," says author and lawyer Portman. "There is a sense of the slippery slope thing. If they let one person do (anything outside the rules), the community will not have that consistent, conformed look."

Unfortunately, violence is not unheard of.  In Northern California's Marin County, the head of an HOA and a resident got into a battle over a shared patio wall. They ended up in a fistfight, rolling down a hill. The board president, an older man, had a minor heart attack and later sued. 

"The fistfights and almost coming to blows, it's not uncommon," says Feingold. "I've been in the meetings and seen it -- pure rage. It comes from that 'home is my castle' kind of feeling."

HOAs not universally hated
HOA supporters point out that associations are governed by an elected group of neighbors and that all property owners have a voice in monthly meetings usually open to  homeowners.

"It's important to remember, these are democracies at their basic level," says Frank Rathbun, spokesman for the Community Associations Institute. "They are elected by the neighbors and run by 1.7 million volunteers nationwide."

Others argue that there are plenty of HOAs that hold meetings that are not open to everyone -- and some that even change bylaws so majority approval isn't needed to change regulations.

Some state governments are taking notice. New legislation in Arizona, Texas, California and Florida is attempting to move power back into the hands of homeowners and limit the ability of HOAs to foreclose on homes, for example. And in California, where HOAs are numerous, a new law requires associations to show residents detailed information on the HOA's finances several times a year.

How to protect yourself

Despite conflicts, it's clear the HOAs are not going away. There are more than 286,000 nationwide and the number is growing -- and with them, so is the need to exercise caution when you're home hunting.

"When you buy a home, just as important as the state of the roof and plumbing is what it has historically been like to live with the HOA that comes with your home," says Portman.

The Community Associations Institute's Rathbun agrees: "We strongly urge people to understand the nature of the community they are moving into -- before they buy."

What you should know before buying into a homeowner's association
Once you have an eye on a home, ask the real estate agent if it is part of a homeowner's association. If it is, make sure you take the following steps*:

  • Get copies of the governing documents from the association manager.
  • If you don't understand the rules, ask your real estate agent or lawyer for help.
  • Take time to talk to people who live there about the association.
  • Know how much the assessments are.
  • If you are on a tight budget, find out how easy it is for the board to increase the assessment amount.
  • Does the community have a cash reserve for new projects?
  • Are there restrictions on renting?
  • Do you feel comfortable with the architectural guidelines?
  • What are the rules on pets, flags, satellite dishes, fences, patios and home businesses?
  • If you are considering an age-restricted community, what is the policy on underage residents and visitors?
  • Consider whether the rules fit your lifestyle and sense of community.

How to fight your homeowner's association

There's nothing fun about a conflict with your homeowner's group. Here are some expert tips for keeping the fight fair.

Once you find yourself in a conflict with your homeowners association, here are a few tips to get the resolution you want, according to lawyers and activists.

1. Know your rights. If you know your governing documents and are generally familiar with state laws that apply you will have the advantage.

2. Mind your manners. Association board members are volunteers and will respond better to a member that isn't engaged in name-calling or other disrespectful behavior.

3. Be patient. Like any bureaucracy, things move slowly in the association world.

4. Be creative. Rather than argue against the application of a rule to you, argue for a change in the rule to the benefit of the community.

5. Watch for discrimination. Even if the board is complying with the governing documents and state laws, determine if their actions can be viewed as arbitrary and capricious; that is, they have cited you for a violation while other homeowners go without being citied. That must be documented if you are going to sue in court.

6. Pay your fines. Do not ignore any fines, because they will continue and it will be very costly if you are sued by your association. You can lose your house.

7. Get organized. Remember, you are under a binding contract once you buy into an association. Document everything and get everything the association says in writing.

8. Consider alternative dispute resolution methods, such as mediation.

9. If all efforts fail, seek out a lawyer in your area familiar with homeowner-association disputes and local and state laws. Consider filing a lawsuit.