The case of the Phantom HOA vs. the Tree House

By Deborah Goonan, Independent American Communities

 

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If you’ve got grandchildren, you know you love being a part of their lives. And if you’ve ever spent time in a tree house as a child, you know that feeling of enchantment and joy.

That’s why Retired Army Officer Mitch Howell decided to build a big, beautiful treehouse on his property in Snellville, near a lake in Lochwolde, Georgia.

But halfway into construction, a group calling itself Lochwolde HOA told Howell that a tree house was not permitted, and threatened to fine the homeowner $25 per day until the tree house is taken down.

But hold on a minute.

Before he purchased the property in 2012, Howell was represented by his attorney, Paul Andrew, at the closing. Andrew assured Howell that the home was not part of a homeowners association.

In fact, according to Andrew, legal research indicates that although an HOA was established in 1988, it had been dissolved in 1997. A small group of homeowners did record a second set of covenants in 2007, but apparently never received written consent from all homeowners. Therefore, Andrew says the HOA does not exist.

Andrew has filed a lawsuit against the ‘phantom’ HOA on behalf of his client.

A phantom HOA is one that homeowners never knew about, or an illegitimate HOA that pretends to have authority to act when it really doesn’t.

Some states have enacted laws to allow homeowners to revive expired covenants or to renew HOAs that have been inactive for years. It’s not clear if the Lochwolde HOA has been able to legitimately recreate itself and force unsuspecting homeowners to relinquish their private property rights.

 

Note that Howell specifically asked about the existence of an HOA before purchasing his home, because he wanted to avoid one. He understands quite well that selective enforcement of covenants – quite typical for most HOAs – is a form of discrimination.

And although restrictive covenants can be enforced by one’s neighbors without the existence of an HOA, according to Andrew, those covenants, which expired in 2004, did allow for structures in private yards and around the lake.

 

Group Tells Georgia Resident to Stop Building Treehouse for His Grandchildren (VIDEO)

Catherine Thorbecke (ABC News)

Portions of the transcript:

Andrew told ABC News that the original “covenants” for the subdivision were recorded in 1984, and expired in 2004, but they did, however, permit “gazebos and other structures” around the lake.

Andrew also added that a homeowners’ association was created, but it was dissolved by the Georgia Secretary of State in 1997. Andrew said that in 2007, “a person claiming to act for the non-existent HOA did file a second set of covenants,” but “there is no evidence that any of the homeowners consented to the 2nd Covenants.”

Howell said he got all of the permits and approvals he needed before he began construction on his own property, a Gwinnett County, Georgia, approved building site. He added that the tree house is being professionally built.

Howell said he was having the tree house built for his two grandkids, his grand-niece and his godson, who range in age from 3 to 11.

“I’m a retired Army officer, and discrimination is a big thing that I’m against,” Howell added. “I served the country for decades to ensure that we had the privileges that we all deserve. This basically got started because of the inconsistent ways that this homeowners’ association applies these covenants.”

Read more here:

http://abcnews.go.com/US/group-tells-georgia-resident-stop-building-treehouse-grandchildren/story?id=40989740

 

Additional coverage with some of the legal details:

Gwinnett man suing HOA for right to build grandkids a treehouse

http://www.ajc.com/news/news/local/gwinnett-dad-suing-hoa-right-build-his-kids-treeho/nryR2/

 

 


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