REAL ESTATE LAW: CAN YOU BEAT YOUR HOA?

 

“The darn HOA is downright Stone Age!”

HOAs are good.  Drive through a really nice neighborhood, especially one on the newer side, and there is probably an HOA on the job.  HOAs serve a valuable purpose or there would not be so many of them.  And yet many of the people living in the development are often hostile to the HOA.  Why is that?

HOAs are governed by CC&Rs (Covenants, Codes & Restrictions, usually drafted by the developer and intended to maintain the quality of the development) and Architectural Committee Rules (the Architectural Committee is named by the HOA board to interpret the CC&Rs).  Because these were written at the time of initial development, it simply was not possible to anticipate all questions that would arise.  And HOA boards and architectural committees are made up of people, with their own idiosyncracies and biases about what “their” neighborhood should look like.

And on the other side is the belief of most American homeowners that their home is their castle and that, whatever is so for their neighbors, they should be able to do what they want with their property.  So rubs between the HOA and its homeowners are inevitable.

Most of the law firms which deal with HOA-homeowner disputes represent the HOAs.  That is only natural.  The HOAs represent a source of repeat and continuous business. The aggravated homeowner is likely to go to war with the HOA only once.

So, often, the homeowner chooses to represent himself.  Occasionally, that works out.  But for the most part it is true that “the man who represents himself has a fool for a lawyer.”  The courtroom is the lawyer’s turf, and the unrepresented litigant is at a tremendous disadvantage.

But a homeowner who is represented can often prevail.

Recently, we represented a homeowner who had bought a sculpture with a desert theme and national recognition, but with a comical bent.  Seeing that neighbors all around him had various objects in their yards without ever having to get pre-approval, our client had set his sculpture in the side yard.  No neighbor ever complained.  But someone on the HOA board decided the sculpture was inappropriate for that development.  The HOA dumped numerous warnings and fines on our client, and then finally sued him when he would not pay or move the sculpture.

The homeowner tried to defend himself for several months, but he found himself in an ever-deepening hole.  So he hired us.

We were able to establish two arguments.  First, because the CC&Rs and Architectural Committee Rules did not specifically prohibit sculptures and the sculpture was not per se offensive, it fell outside the CC&R prohibitions.  Second, because of the enormous power they wield and the potential for abuse, HOAs are under a duty to avoid being unreasonable or arbitrary.

This does not mean that you can expect to prevail against your HOA.  A reasonable application of the CC&Rs by an HOA will always be upheld.  But HOA’ are not always reasonable, and when they are not, the homeowner does have recourse.  See an Arizona contract lawyer or business litigation attorney.

 

 

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