By Deborah Goonan, Independent American Communities

State by state, journalists are finally reporting the truth about life in association-governed communities.

The latest report of outrageous HOA rules enforcement comes from KOB4 reporter Chris Ramirez, Albuquerque, New Mexico.

Of course, it’s common knowledge that HOAs have some crazy rules when it comes to installation of a fence on your private property. Some HOAs don’t allow them at all. Those HOAs that do allow fences usually have rules about the maximum height of the fence, the type of materials used, acceptable colors, and more.

So homeowner Angie Montgomery asked Piñon Creek HOA if she could install a fence in her backyard, and, in 2014, a board member gave her the OK by email.

Montgomery made her small backyard into a private oasis, which she says garnered compliments from her neighbors.

But within a few months after the death of the board member who approved Montgomery’s improvements, current HOA President Randy Asselin insisted that Montgomery’s fence was never approved by the Architectural Control Committee, dismissing the 2014 approval email as a fake.

According to the homeowner, Asselin ordered the removal of her fence while she was working.

When Montgomery arrived home, she at first assumed someone has stolen her fence, so she called the local police and filed a report. But then she discovered that the HOA took it down.

The matter ended up in civil court, and, after spending thousands of dollars improving her back yard, the HOA’s attorney — paid for by HOA assessments collected from members of Piñon Creek Townhome Association — pressed for an out-of-court settlement.

The details of that settlement are, of course, confidential. That’s standard practice for HOA attorneys — conceal as much information as possible from association members and the general public.

But, not long after the legal settlement, Asselin continued to badger Montgomery about her back yard. He insists that the trees she planted a few years ago must be cut down, that flagstone stairs built into the hillside be removed, that an outdoor fireplace be modified so that it remains under 5 feet in height.

Ironically, KOB4 video clearly shows that several neighbors, including Asselin himself, have fences and walls nearly 6 feet in height.

So why is Asselin selectively enforcing rules against Montgomery?

Simply, because he thinks he can get away with it. Because he knows that Montgomery and most other homeowners don’t have tens of thousands of dollars to waste on attorneys and court costs. Because he knows the law is slanted very far in favor of association governing bodies.

And that’s because, as so-called “private” organizations, associations are governed by contract law rather than Constitutional law.

Of course, that’s not news to regular readers of IAC, where this very point has been illustrated by example in numerous posts since 2014.

The notion of HOAs as “private government” was introduced in 1994 by author and professor Evan C. McKenzie, currently at University of Illinois at Chicago, in his book entitled Privatopia: Homeowner Associations and the Rise of Residential Private Government. 

For nearly 2 decades, Arizona advocate George K. Staropli has also written extensively about the lack of Constitutional constraints upon HOA private governments.

And now this week, Joel Garreau, a professor at Arizona State University tells KOB4 viewers that HOAs are “shadow governments” with the power to do just about whatever they want, as long as it’s written into the “contract,” also known as the Covenants, Conditions & Restrictions (CC&Rs).

That’s not to say that a homeowner can never prevail in a lawsuit with an HOA. But even when they do “win” in court, homeowners are seldom made whole on their financial loss. And, as Montgomery has learned, a homeowner can never recover time wasted, nor can the owner ever be compensated for months, if not years, of stress and frustration with an out-of-control legal system that seems to be designed to benefit attorneys rather than citizens.

And the sad truth is, once a homeowner settles with the HOA, the conflict often continues, especially if a bully remains on the board, or the HOA attorney realizes that fighting petty conflicts creates plenty of billable hours.

The message is becoming clear: the best way to avoid HOA conflict is to simply avoid HOAs.

Powers of homeowners’ associations unchecked in New Mexico

Chris Ramirez
May 02, 2018 06:21 AM

ALBUQUERQUE, N.M. – When Albuquerque homeowner Angie Montgomery came home to find her backyard fence removed, she thought she had been a victim of a crime. It turns out she was a victim of her powerful homeowners’ association and removing her fence without her knowledge was legal.