First, this article is written from the point of view of a California resident. Much of the information presented here is relevant to other states, but you should check your own state’s laws to make sure they are the same or similar.
For most people buying a new home in America today, there is usually a mandatory membership in a homeowners association, known as an “HOA.” These organizations are essentially mini-governments that possess the power to make and enforce laws, including the right to foreclose on a family’s home, townhouse, or condominium.
The original intention in the creation of the HOA anticipated an active participation of all the members; a close-knit community where community members dealt with common problems through HOA offices.
Reality is nothing like vision.
Today, in most cases, an HOA is a very small number of people who actively hold the authority of the HOA in their hands, and their hands only. Typically, these circumstances are caused by the lack of involvement of the majority of HOA members.
The lack of member involvement creates a certain logic for the Board of Directors, which interprets the disinterest of the other members as the reason why they should keep the authority of the HOA to themselves. The community is divided between those who control the Board of Directors and everyone else.
For everyone else, an HOA is usually not easy to deal with. They wield the authority to foreclose on homes, impose heavy fines, and often control aspects of community members’ lives that typical Americans believe are a precious private right of homeowners, such as what your kids can do while playing in their own backyard.
Homeowners often find themselves in a competition with their HOA over these rights. Can I park my car in my driveway? No, the HOA says because we, a few active members, passed a law that says you can’t park a car in your own driveway unless you use it every day.
Can my kids play basketball in our own backyard? No, says the HOA, because we, a few active members, passed a law that says basketball courts that can be seen from the street are not allowed. And by the way, you are not allowed to cover that open fence to limit our visibility in your backyard because we, a few active members, have passed a law that says we have the right to see in your backyard.
Can I tint my crystals? No, says the HOA, because… Well, you get the picture.
Now the part you have been reading to find. How do you defeat your HOA?
First, you need to make sure you continue to pay your HOA due. Most homeowners who fight with their HOA over issues like a rule restricting backyard activities, use of their own driveway and garage, and denial of their planned home improvement projects , they often get angry and stop paying.
This is a mistake. Pay what corresponds to you. However, you can usually skip paying those fees and penalties. In California, an HOA cannot foreclose on your home based on accumulated late fees, penalties, and other expenses such as the ‘cost of collecting’ late fees and unpaid penalties.
They can sue you in small claims, or even in the limited jurisdiction of Superior Court because then they will get attorney fees, which will be huge. However, the resulting judgment is much more difficult to use to foreclose on your home because it does not take precedence over existing liens, meaning the HOA would have to pay off your mortgage to obtain your home using a court judgment. (In California, the moment you lose such a lawsuit, go to the State Bar and demand Fee Mediation – HOA attorneys charge you like they are first class attorneys, but they charge their clients like if they were first-year freshmen).
But let’s not let it get that far, okay? Here are some basic rules to live by when it comes to your HOA.
HOAs do not normally have a properly elected Board of Directors. As soon as you get that annoying letter telling you to keep your kids from playing in the backyard, send a letter back requesting a copy of all Government Documents.
Hopefully the HOA will ignore or deny this request.
They are not allowed to deny or ignore a request for copies of Government Documents.
Get a copy of all your Governance Documents and read them to see what constitutes a duly elected Board of Directors. In those communities where membership participation has been limited to the few who want to be Board members, a “quorum” has often never been achieved to properly elect the Board.
The Board, therefore, is usually in session by default.
Default Boards have a limited scope of their authority and, in some cases, no authority at all.
In all your correspondence, constantly remind the Board that they were not duly elected.
Follow these basic steps;
1. Request a ‘meet and conference’ with a Board member to discuss the issues. The HOA cannot deny your request to meet and consult. Record the meeting on video.
2. Request a hearing before the Board. Record the meeting on video.
3. Appeal the decision of the Board. Record the appeal hearing on video.
4. Request Mediation after the Board upholds its previous decision on Appeal.
HOA board members are generally not well versed in the laws that govern the operation of an HOA. many will be familiar with the relevant portions of foreclosure law and, of course, know the HOA rules and regulations by heart.
However, I have found that the Board is often unfamiliar with the requirement to meet and consult in good faith. Therefore, it is common for the member of the Board of Directors who appears to meet and deliberate, to meet but not deliberate. There is a good faith requirement that makes the kind of responses the typical HOA Board member will offer in response to her questions inappropriate.
For example; You’ve received a letter telling you to move your 1966 Ford Mustang out of your driveway because it doesn’t get driven every day. Well, you say, “what proof do you have that he doesn’t drive every day?”
“We have an anonymous tip from another owner,” the HOA Board member replies.
“Okay, you had a complaint. But what proof do you have that the Mustang isn’t being driven every day? A mere complaint isn’t proof and doesn’t rise to the level of a violation. You’re supposed to investigate to determine if the La complaint was fact or mere opinion. So what proof do you have?
There is a good chance that the “complaining member” is none other than the Board of Directors themselves who simply discussed your Mustang at their last meeting. So there is no proof.
Write a summary of the meeting and conference. State that the Counselor was not aware of the infraction, so there is no infraction.
When the HOA sends you its next letter, usually a threat to move the Mustang or face heavy fines, you send a letter denying any violation. Remind them that they were not chosen correctly and that the results of the meeting and conference were in your favor, not the HOA’s.
The HOA is supposed to schedule a hearing at which evidence of your violation is presented and then decide on the evidence and testimony provided at the hearing. Be sure to demand such a hearing and be sure to attend. It is a good idea to record the meeting on video.
It is not surprising that the HOA rules in your favor, even when they have evidence to show that there was no violation, or they had no evidence to show that there was a violation.
Request an appeal. Make sure you attend, and yes, videotape it. At the appeal hearing, point out that the Board members were not properly chosen and had no facts to support their earlier decision.
When the Board confirms its previous ruling, it will require mediation.
At mediation, tell the mediator that the Board was not properly chosen, did not meet and consult in good faith, called a disciplinary hearing without any evidence that a violation existed, ruled against you without any evidence that a violation existed, and upheld its decision despite the lack of evidence and/or evidence to the contrary.
The mediators will only want to split the matter in two; if you’ve been fined $1,000, you’ll be encouraged to offer $500.
Your next step is the most crucial. The HOA will expect you to pay, or in the most unlikely situation, to bring an action in Superior Court to enforce the Governing Documents.
Instead, file what is called an “Injunction Order.” This is the proper place to appeal the Board’s decision.
While this will cost you some legal fees, it is the winning move. HOAs and their attorneys are generally unfamiliar with this particular court option and will be totally out of their depth when faced with an injunction.
However, the Court of Deed will entertain you because you are appealing to an administrative body that has the obligation to accept and rule according to the evidence and testimony presented. And, if they fail to rule on the evidence, they can be overturned by the next higher court. In California, the next higher court above an HOA appeal hearing is the Superior Court drafting judge.
If you have carefully compiled the evidence listed above, it is very likely that you will prevail. Fines will be reversed, late fees, etc. will be voided, and the HOA will pay your attorney.
From then on, the HOA is likely to turn a blind eye to your Mustang, or your son’s backyard basketball court, and look for easier victims.