Olathe Kansas homeowner’s bittersweet win against his oppressive HOA

By Deborah Goonan, Independent American Communities

The story of a years-long dispute between Jim Hildenbrand and Avignon Villa Homes Community Association is a textbook example of waste and abuse of the legal system.

And it highlights the fact that, even when you “win” a lawsuit against your HOA, you usually lose.

As reported by Judy L. Thomas in the Kansas City Star, a Johnson County Judge has ruled that Hildenbrand can keep his landscape, including a low retaining wall that creates a front patio and some raised plant beds.

But, here’s the kicker.

Hildenbrand is still on the hook for his own legal fees, reportedly at least $300,000, plus a $25,000 fine payable to Avignon HOA for the cardinal sins of parking his car in his driveway and having some potted plants in his front yard.

I wish I could say this were satire. But it’s reality.

And, by the way, Avignon HOA is apparently stuck with $330,000 in legal fees of its own. Some of that may be paid by the HOA’s insurance provider, but any deductibles or non-covered charges will be paid by all homeowners in the 153-home neighborhood.

It’s payday for the attorneys.

What a complete waste of everyone else’s time and money.

Olathe man wins years-long landscaping battle with HOA. But it’s costly for both sides

BY JUDY L. THOMAS
jthomas@kcstar.com

January 31, 2018 04:56 PM
Updated January 31, 2018 10:07 PM
An Olathe homeowner can keep his landscaping project that his HOA deemed “over the top,” a judge ruled Wednesday in a years-long battle that has racked up hundreds of thousands of dollars in legal fees.

Johnson County District Judge Rhonda K. Mason said the Avignon HOA treated homeowner Jim Hildenbrand unfairly when it denied his application for the project.

“I don’t think there’s any secret that this was a contentious relationship,” Mason said of the HOA and Hildenbrand. “The court finds that the relationship between the parties played a role in this application being denied.”

Mason also ruled, however, that Hildenbrand violated his HOA’s rules by failing to fill out the proper application before installing the landscaping project, which features a long, low accent wall running the length of his house. So the judge ordered Hildenbrand to pay a $25,000 fine to the HOA.

Read more here:

www.kansascity.com/news/special-reports/hoa/article197729414.html#storylink=cpy

Readers may recall that Avignon Villa HOA has a history of picking on homeowners and imposing fines for violating all sorts of onerous rules.

Prior to the landscape wall controversy — there goes the neighborhood! — the HOA went after Hildenbrand for placing a small statue of St. Francis in his yard.

The same HOA has insisted that Stuart and Marsha Holland refrain from parking a vehicle in their own driveway. The car is owned by Marsha’s father, who moved in with them while undergoing treatment for cancer.

Healthy communities value people, not property. Photo and quote by Deborah Goonan

I find it an interesting coincidence that both Hildenbrand and Holland are of the Catholic faith. Could religious discrimination be at the heart of these contentious relationships?

Or is this just a matter of obsessive compulsive board members run amuck?

What many housing consumers don’t understand about HOAs — until they become ensnared in the crosshairs over some silly issue — is that covenants and restrictions are falsely advertised as a way to protect and enhance property values.

Think about it.

How does removing a homeower’s right to use and decorate private property to personal preferences, in a way that causes no harm to people or neighboring property, add value to one’s home?

It does not!

Most CC&Rs diminish value by limiting personal expression and preventing a homeowner from obtaining maximum enjoyment of his or her home.

And when you add the cost of the inevitable petty and drawn-out legal battles with the HOA, property values drop even more.

Doing some simple math for Avignon, each of 153 properties could have to fork over up to $2,000, just to pay the lawyers that stoked a 4 year long lawsuit over a landscape that, ironically, most observers would agree looks quite attractive.

But the intangible costs to homeowners and residents cannot be measured. First, there’s the bad publicity for the community. Then, there are fractured relationships and inevitable animosity between neighbors.

When “for sale” signs start popping up in Avignon Villa Homes Community Association, how many home buyers will rush in? It could take years for a turnover in the HOA board and for bad memories to fade. Perhaps the community will never fully recover from the damage done.

It should also be noted that, over the years, I have communicated with quite a few homeowners involved in lawsuits with their HOAs.

All too often, they erroneously cling to the notion that their cause is so worthy and righteous, and that they must continue to fight for their rights until the bitter end. They are convinced that good will prevail and justice will be served.

Unfortunately, in almost all cases, just as with Hildenbrand, even if a homeowner wins the legal war against their HOA, they emerge with battle wounds, some of them permanent.

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5 Replies to “Olathe Kansas homeowner’s bittersweet win against his oppressive HOA”

  1. Janet–it’s not a question of being stupid, its the attorneys and court system. By the time you file suit–the attorneys will already be charging you many thousands of dollars for all the “work” they have done for the association. The real work they do is to convince the board that they have to be harsh with you to stop others from challenging them. Your first day in court, and you will be on the hook for about $20,000 for your side and $40,000 for their side. By that time if you lose or give up, you have to pay the attorney fees for both sides. So you can ‘t give up. He didn’t know he would have to pay his attorney fees. Any reasonable person assumes the judge awards attorney’s fees to the winning side. Unfortunately with HOAs, if you win, you seldom get your fees, if they win, they always do. NOT a level playing field.

  2. I’m sorry, not much sympathy here. Who would be stupid enough to spend $300K on legal fees to have the right to landscape the way one wants. He should have figured out some other place to live where he wouldn’t be subject to HOA landscaping rules. The HOA is also stupid to have sued him over the landscaping.

    In the story about the gate machinery in the archway, the initial cost was in the $500+ range. Why didn’t they just fix it themselves. A lot of the cases you report indicate incredible stupidity and stubbornness by both parties to the dispute.

    It seems the solution to these disputes should be mandatory arbitration clauses in covenants and/or bylaws.

    1. I’m not a fan of mandatory arbitration, nor am I in favor of giving association-governed communities the more or less unrestricted authority to impose monetary fines. This entire saga could have been prevented if the CC&Rs and architectural standards were reasonable. The ultimate outcome of this lawsuit confirms that the standards and their enforcement were not reasonable.

      I agree with you that most people would make a sensible business decision to cut their losses, rather than continue with a lawsuit just to prove a point. In this case, that applies to both Plaintiff and Defendant.

      I suspect that each side held out hope that the other party would be footing the entire bill for their legal expenses. Did legal counsel on both sides try to talk their clients into settling, or did they just perpetuate the madness?

      It shouldn’t cost $300K+ for a homeowner to defend or assert his rights. Why didn’t this case get thrown out of court early on in the process? Perhaps court ordered mediation or arbitration — as opposed to mandated and orchestrated by the association — would have been more appropriate.

      1. I feel a need to shed some light here.

        Having been involved in three lawsuits with my HOA, all of them for breach of contract on the part of the HOA, I’ve found they do not want to settle the case. Why? Because the goal is to bleed the homeowner out of every dime so they can lien the property, foreclose on the lien, and take every asset the homeowner has to satisfy the legal expenses occurred by the HOA. In the course of litigation one can not just up and walk away. Nor can the homeowner stop the HOA attorneys from filing motion after motion that must be answered and therefore running up the homeowner’s legal bill.

        Once a homeowner stands up against an abusive and unreasonable HOA board they have just committed financial suicide just as I have experienced.

        I cannot speak for Jim Hildenbrand, but in my case when I bought this townhouse I spent a considerable amount of money doing upgrades and customizing rooms the way I wanted them. I did so because I planned to live the rest of my life here. I paid cash for the townhouse and all of the upgrades. Once the first legal battle started I did not want to sell and leave all my hard work and money behind. Knowing what I know today, I would have been far better off in every way, including financially to have taken the loss on the sale of the townhouse and run. My loss would have been around $160K at that point. Now, it’s going to be at minimum $500K and I will be living in poverty the remainder of my life. Not to mention I will have to remain employed until I take my last breath. Living a comfortable retirement life is off the table. In addition my health has been affected from the prolonged stress.

        I have lived a life of hell for thirteen years and would never wish this on anybody!

  3. Believing they will be burdened with costly legal fees keeps most Owners from pressing their claims against the HOA. While this costly burden is not unique to Owner/HOA disputes, there should be more reasonable remedies available in the HOA realm. Some strategies that I’ve read about include enlisting the help of the Owner’s mortgage company and/or considering possible criminal (white collar crime) complaints, when the facts warrant such. It is imperative that Owners read and understand their Governing Documents to avoid conflicts and/or intelligently defend themselves.

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