By Deborah Goonan, Independent American Communities
Recently a Pennsylvania judge ruled in favor of a same sex couple, who were targeted by some of their neighbors over a privacy fence and their right to install a backyard pool. The story is circulating all over social media, and homeowner, consumer, and Civil Rights advocates are celebrating this as a judicial victory.
If you haven’t read about it already, here’s a link to the story in question.
Judge allows couple to keep pool fence
Michael P. Rellahan (June 26, 2016)
WEST CHESTER >> In a sometimes biting and other times lyrical decision, a Common Pleas Court judge has dismissed a lawsuit brought by neighbors of a New Garden same sex couple over the fence they built to enclose a planned in-ground swimming pool.
Judge Jeffrey R. Sommer denied the demand by residents of the Bucktoe Manor subdivision to force the couple, Keith Davis and David Ruth, to tear down the 6-foot-high fence they had built, and prevent them from putting up another one without express permission from a residential architecture committee at the subdivision.
Sommer’s decision goes into painstaking detail about the history of the subdivision, the Declaration of Covenants that the homebuilder set up for the community instead of a Homeowners Association, the way the architectural committee withered to the point it no longer held enforcement powers, and the way the dispute over the fence grew into a “personal” feud between the neighbors.
Read more: http://www.southernchestercountyweeklies.com/article/SC/20160621/NEWS/160629995
Link to Judge Sommer’s 18-page decision
However, there’s another angle to this story. For one thing, there’s the adverse social impact of the lawsuit and acts of discrimination.
As the article below eloquently describes, the behavior of some neighbors toward Keith Davis, David Ruth and their children has taken its toll. Legal expenses have caused financial hardship. The homeowners and their two young boys have endured unimaginable emotional stress inflicted by some of the neighbors, who have apparently decided that the family doesn’t belong in their neighborhood.
The couple lives in fear of retaliation and possible harm to their children or pets. The dispute is not about the fence at all. It goes much deeper than that.
Couple embroiled in legal issue with neighbors
06/14/2016 12:06PM, Published by Richard Gaw
On New Year’s Day, 2015, two neighbors came to the Ruth-Davis home and were “completely unreasonable and uncompromising,” Ruth said. “We offered to put in trees to block the view of the fence. We offered to paint the fence, but they just wanted the fence gone. If we had to leave, then we had to leave.”
On March 9, 2015, two neighbors who live in homes that border the Davis-Ruth home filed a lawsuit against them, claiming that the fence violated the rules of the covenant. Three other neighbors soon joined in the suit, which was not filed under the auspices of the Architectural Control Committee, but initiated by the couple’s neighbors.
On June 23, 2015 at 8:53 a.m., New Garden Police responded to a hate crime and criminal mischief complaint. The police observed damage to the two garage doors of the Davis-Ruth home. One door was painted with the words “get out” and the second door had been painted with a derogatory term used to describe homosexuals. The investigation is still active.
Davis and Ruth have tried to keep their children unaware of the vandalism or the lawsuit, but the boys have told Davis and Ruth that they have started to endure broken friendships with a lot of the children in the neighborhood, that began soon after the lawsuit was filed.
“One of the neighborhood children told us that we were the talk of the school bus,” Davis said. “Our only assumptions were that this issue was being discussed so much in the homes in the development by the parents, that the kids were hearing what their parents were saying.”
Read entire article: http://www.chestercounty.com/2016/06/14/114020/couple-embroiled-in-legal-issue-with-neighbors
No HOA exists!
There’s one very important point that is being missed: the fact that Bucktoe Manor is not governed by a mandatory homeowners’ association. (HOA)
Therefore it’s critical for readers to recognize that selective or discriminatory enforcement of restrictive covenants can occur even without the existence of an HOA.
The original builder’s intent was to establish an Architectural Control Committee (ACC) for Bucktoe Manor, but that formality was never entirely executed by homeowners. The ACC was more or less dormant, lacking official written standards and a process for enforcement.
As a Pennsylvania resident for most of my life, I can relate to this peculiar arrangement. My spouse and I have owned two homes with deed restrictions or CC&Rs (Covenants, Conditions, and Restrictions), but neither home was governed by a homeowners’ association.
Prior to the mid 1990s, Pennsylvania did not have a Planned Community Act, and, furthermore, new construction rarely included common areas and therefore did not require the establishment of a homeowners association.
Nonetheless, some landowners and developers at the time created certain use and aesthetic restrictions. Many of the state’s smaller boroughs and townships at the time lacked development standards. For example, there were limited comprehensive zoning restrictions governing set backs, no restrictions limiting use of property to single family residential purposes, and no ordinances prohibiting blocking roads with large trucks and RVs. And certainly, with the exception of historical overly districts, no local governing entity had the authority to enact ordinances based purely on aesthetic standards. So some builders decided to add in what they marketed as restrictions designed to enhance the neighborhood.
The reason that Judge Sommer dismissed the case was that he concluded that the ACC no longer had enforcement powers, and that was evidenced by the fact that the homeowners were not provided with any due process in the form of a hearing. Furthermore, to the extent written standards did exist for the small community of 28 homes, the historical evidence was clear that they were not followed.
Had Bucktoe Manor been governed by an HOA, Sommer’s opinion might have been drastically different.
What if there were an HOA?
If Bucktoe Manor had been governed by an HOA:
- The HOA would have been collecting regular assessments over the term of its existence.
- Instead of being sued by a few of their neighbors, Davis and Ruth would have most likely been sued by the HOA.
- The lawsuit against Davis and Ruth would have been funded by the assessments of owners of all 28 properties in Bucktoe Manor, whether or not they agreed with the reasons for suing their neighbors over a pool fence. Furthermore, the HOA Board would have likely been covered by an insurance policy that reduces financial exposure for the Association.
- The CC&Rs would have been augmented by HOA ByLaws and Articles of Incorporation. Those governing documents would have provided a great deal of legal authority to the HOA Board to enforce the CC&Rs and Architectural Controls.
- The Judge would likely have viewed HOA CC&Rs as a legal “contract” to which buyers agree upon taking title to their property. And in the vast majority of cases, the courts will rule in favor of the HOA, regardless of the nature of the rule, or the pettiness of the dispute.
- More likely than not, the plaintiffs (the HOA) would have been represented by an HOA attorney.
- Prior to the HOA lawsuit, Davis and Ruth would most likely have been threatened with fines for their refusal to remove the unapproved fence. Those fines might have accrued thousands of dollars in penalty fees and attorney fees during the course of a year or more.
- An unpaid fine might have resulted in delinquent assessments, a lien on the homeowners’ property, and the threat of HOA foreclosure. All of these actions by the HOA board would have resulted in further litigation, as the owners would attempt to defend their property rights.
Reviewing the above bullet point list, can you see the inherent problem with Association Governed Housing?
A homeowners, condominium, or cooperative association can use the collective financial resources and legal power of the HOA board to discriminate against any homeowner – all under the pretense of enforcing the rules as they exist in the CC&Rs or Architectural Controls.
If a Judge can recognize the true intent of the homeowners who sued Davis and Ruth, then why aren’t Judges across the U.S. making similar rulings in cases involving HOAs? The very same social dynamic is at play!
The answer seems clear: it’s because the legal structure of mandatory associations is cleverly designed to mask its true intent – the ability to drive away “misfit,” inquisitive, or otherwise undesirable homeowners that a few HOA board members don’t like.
Contrary to what some misguided consumers may still believe, restrictive covenants and aesthetic rules have absolutely nothing to do with protecting and enhancing property values.