Is it possible to resolve disputes and fix your HOA? What can homeowners and residents do when HOA problems arise? Here are some important points to consider.
In the past several months, dozens of homeowners have written to IAC about problems they encounter with their homeowners associations.
Here are a few inquiries that caught my attention:
HOA won’t let owners park mini van in their own driveway
A reader in Georgia writes about a parking dispute, involving a mini van parked in the driveway. The HOA insists the mini van is a “commercial bus.” HOA rules restrict commercial vehicles.
“Our HOA sent a letter, demanding that a commercial bus be removed from our driveway within 10 days or be subject to a $25 per day fine for the violation. Also, advised to keep the garage door closed when not in use. In the state of Georgia, a commercial bus is considered to weigh more than 10,000 pounds, and equipped for a minimum of 16 passengers. Our mini van seats 12 and weighs approximately 6,000 pounds.“S.C.
HOA says NO to owner’s request to add french doors
A reader in California shares that his HOA won’t allow his neighbor to replace his home’s sliding patio doors with french doors. Viewing the photos, the proposed french doors are almost identical in appearance, but the HOA refuses to bend the rules.
“Do you have any advice on how to proceed? HOA is trying to ban French doors replacing sliding glass doors.”C.C.
Self-managed condo association won’t allow rentals, files liens against several owners
A condo owner in DC writes to me about alleged conflict of interest and ethics violations by the board of her self-managed association. After years of housing tenants, her condo association has suddenly decided the unit owner can no longer rent out her unit. Naturally, she has objected to the new restrictions. Now she’s one of several unit owners fighting a lien placed by the HOA against her condo unit.
The owner says the condo association has a habit of filing liens in retaliation against owners who disagree with the board. Yet most owners are reluctant to fight back.
“What can I do? Other owners will silently cheer me on behind closed doors but are afraid to stand up. I cannot sell due to the financial condition of the Association. Even if I could sell, it would be hard to get back in the DC market once out. What can I do to ensure accountability and visibility of the Association’s corrupt activities?”L.D.
Developer controls HOA, orders removal of owner’s pergola
A condo owner writes from Delaware. She says the developer removed her home’s previously-approved pergola. The developer insists that it was built and installed without HOA approval.
The homeowner says that, Ironically, the developer actually built the pergola shortly after her home was constructed.
“(our) HOA is run by the developer. When owners tried to get together to address issues we were sent an email by the developer saying we can chat all we want but as long as he remains in control we will have no say.”J.L.
Voter fraud in HOAville? You bet
And another homeowner from Kentucky laments about a corrupt election process for the HOA board in her community:
“This year the Association Board has instructed the stakeholders to submit their election ballots to a current board member who is running for re-election.
This particular Board member is the current Treasurer. He has put up a small mailbox in his Circular driveway to collect election ballots. The ballot instructs homeowners to drop off their ballot at a particular address, the instructions do not mention that the address happens to be a board member that is running for re-election.”
Why is there so much controversy and corruption in HOA-governed communities?
There are several simple reasons that HOAs are hotbeds of conflict.
It’s a business relationship
First of all, although the HOA industry sells you a home and “community,” that’s not what you’re really buying.
Actually, you’re entering into a business contract with the Declarant (the developer, during the time of active new construction), all of your future neighbors, and a legal entity called a Homeowners Association.
In almost all cases, a home buyer doesn’t get to pick and choose the other members of the HOA. So, essentially, when you buy into an HOA (planned community or condominium), you become a silent investor in a corporation that manages commonly-owned real estate.
In reality, the only way you have a voice in how HOA management is to serve on its board of directors. And, even then, you’ll only have a voice if you’re in agreement with the majority of your fellow board members.
A diversity of opinions, values, and priorities
Think back to your process of house hunting. There’s no doubt you viewed several, perhaps dozens of homes before finding the right one.
You looked at homes owned by neat freaks. You’ve seen messy, disorganized dwellings, too. Some sellers had well-decorated homes, others had cluttered rooms or bold paint colors on the walls. One seller had pride of ownership and maintained the vintage character of his home. Another seller made many recent updates, embracing trendy design choices, not necessarily your preference.
In short, you often have little in common with the seller of your home. And that’s why it can be difficult to find the right home to buy. Even then, most buyers will make changes to the home after they move in.
You must live with frequent disagreement in the community
Now realize that when you buy into a common interest development, you are expected to live among many people who don’t share your personal tastes.
You’re also obligated to share financial responsibility for maintaining common areas. But not everyone will agree on how much to spend on maintenance. Some of your neighboring property owners will be extravagant spenders, while others will be penny pinchers.
And, of course, everyone must (theoretically) live by the same set of HOA rules. However, most of these onerous rules were written before the developer built the first home. In practice, some folks are sticklers for rules, while others pay no attention to them. More potential for conflict.
How much are you willing to compromise?
There’s no doubt about it. Living in an HOA-governed community means you’ll have to compromise. Sometime a little, sometimes a LOT.
Before you decide to push back on rule enforcement or a budget decision by the HOA board, you must ask yourself, is this a battle worth fighting?
Ask yourself how much will it cost you to comply with an HOA rule you don’t like, and how much will it cost you to fight it?
Another serious consideration: Is it cheaper to pay the HOA’s higher fees or special assessment, or to refuse to pay and face a costly legal battle when the HOA puts a lien on your property?
It may not seem like it when your emotions are running high, but this is a business decision, after all. It’s best if you can avoid an all-out war and legal battle.
What to do if you feel you must stand up and fight back
Using the examples above, it’s probably not worth fighting over installation of french doors vs. new patio slider doors or even the seemingly vindictive removal of a pergola.
Let’s face it. Sometimes the HOA puts you in a defensive situation, and you have no choice but to fight back. When your HOA threatens your livelihood, you may believe that the issue is worth fighting for.
Compromise seems out of the question for several of the examples cited above.
Many obstacles to justice in HOAville
Obviously, there will be serious HOA issues that will require a homeowner to at least consult an attorney. A few examples documented here on IAC:
- your HOA threatens to foreclose on your property,
- the HOA blatantly violates your civil rights under the Fair Housing Acts, or
- your HOA refuses to repair or compensate your for damages to your property,
Still, be aware that it may not always be possible for you to overcome the staggering obstacles you face in your HOA dispute.
No ironclad cases
IAC is contacted daily by homeowners who are ready to sue their HOA. They’re darn sure they have an ironclad case — something so obvious and simple that the courts will simply rule in their favor.
Well, don’t count on it. As explained in detail in my most-read post, HOA Lawsuits – A Reality Check, most legal battles drag on for years. A lawsuit against your HOA can cost a fortune to fight. And, even with a legal victory, a homeowner rarely recovers 100% of damages and legal costs.
And that’s just the material cost of litigation. There are many intangible costs, too.
Once you decide to sue your HOA, you’re likely to be marginalized and shunned by your neighbors, even the ones you thought were your friends. Plus, the sheer amount of time you’ll have to devote to the legal process is also a leading cause of stress for most homeowners.
So, avoid the lawsuit route, if you can.
Non-legal paths to resolving HOA problems
Here are some tips to consider, before you lawyer up.
Before ousting the board, gain the firm support of your neighbors
For example, how should you deal with a crooked HOA board that rigs elections? Or what can a concerned homeowner do about mismanagement or suspicious activity by the HOA board and management company?
The first step is to find out if other owners are concerned enough to DO something about it. Caution: as noted in the example above, this is easier said than done.
Start by talking to your neighbors. Find out how many of them are as unhappy with the HOA board as you are. See if you can identify several honest owners who are willing to serve on the board.
Then figure out if it’s even mathematically possible to gather enough votes to recall the board or elect some new blood at the next election. Remember, that most HOAs operate as corporations. Voting interests attach to property owned, not the person who resides in the community.
Voting “rights” in an HOA are comparable to owning shares of stock in a company. The more property (shares) you own, the more voting power you have in the association (corporation).
Beware of situations where the Declarant (developer) or a bloc of investors own multiple properties or units in the association. In some cases, regular homeowners cannot possibly. outvote these dominate shareholders.
The bottom line is, without significant active support of other like-minded unit owners to oust the current regime, you are unlikely to succeed in replacing the HOA board.
More likely, you’ll just stir up the ire of a hostile HOA board and its management agents.
Keep a low profile, while you quietly gather evidence and plan your next move
The worst thing you can do is to openly threaten the HOA with a lawsuit. Once you do that, the HOA board will stop talking to you. All personal communication with the board will halt. Instead, all communication will be in writing, and it will come from the HOA’s attorney.
Once you reach this point, the HOA might follow through on its legal threats. Don’t be surprised if the HOA tries to intimidate you to keep you quiet.
The second worst thing you can do is to report complaints to regulatory agencies, without first gathering convincing evidence of misconduct or neglect. In my experience and observations, most government agencies tend to give the HOA the benefit of the doubt. Building code enforcement, environmental protection offices, and other similar agencies won’t strictly enforce regulations unless the offense is egregious and they have no other choice.
Don’t expect help from your Attorney General
As many owners have discovered, in most states, the Attorney General has very limited jurisdiction over HOAs. The AG won’t investigate your complaint, unless you have solid proof of embezzlement or fraud. More likely, state officials will tell you that your dispute is a “civil matter.” They’ll suggest that you settle the matter in court!
Theoretically, according to state laws, you’re entitled to view and examine the official records of your HOA. But keep in mind that, unless you’re a board member, you’re likely to be denied access to HOA financial records or minutes of meetings. Gaining access to HOA records is a frustrating process, and you may be unable to gather the evidence you need to prove your point or compel action.
HOA Retaliation is common
And, unfortunately, if you openly provoke certain toxic personalities on the HOA board, they can, and often do, abuse their power. It’s not uncommon for an HOA to target a “troublemaker” in the community with fines for hyped-up rule violations. And if you owe the HOA even a small amount of money, an agitated HOA board can be quick to lien and filed for foreclosure of your property.
So, if you’re serious about holding your HOA accountable, be discreet. Startt by reading your governing documents carefully, researching relevant public records, and gathering any concrete evidence you can. You must do so quietly and without fanfare, because the element of surprise is an important tool in your favor.
Contacting the media
Depending on the situation, the local media can be your friend or your foe.
IAC is aware of cases where bad media publicity for the HOA — early on in the dispute — has resulted in the HOA backing off of its threats to fine or otherwise penalize a homeowner.
But sometimes negative media attention can backfire. The HOA tends to demonize the homeowner as a “troublemaker” that gets blamed for airing the community’s dirty laundry, so to speak.
This strategy works best when a fairly large number of residents and property owners are outraged by unfair management practices. A good example is an HOA that suddenly decides to get aggressive with towing vehicles. Or how about the HOA that starts imposing fines for issues not under the homeowner’s control — like your lawn turning brown during a drought, and state mandated water restrictions.
Everyone hates an HOA bully
Also, local media is more likely to be sympathetic to your problem if your HOA engages in bully behavior, overt discrimination, or mean-spirited rule enforcement.
Let’s face it. An HOA board looks foolish and downright selfish when it denies a sick child’s playhouse or disabled person’s wheelchair ramp. And egregious condo commando tactics such as posting Nazi posters in the lobby are certain to create widespread public outrage.
But if you’re the only homeowner courageous enough to “go public,” while your neighbors remain silent and cowering in fear, contacting the media probably won’t help.
Amending the governing documents
If the majority of your HOA neighbors agree, it may be possible to amend your governing documents, specifically, the Declarations, also known as Covenants, Conditions, & Restrictions (CC&Rs).
Some reasons you might want to amend your CC&Rs might include:
- Removal of unpopular rules and restrictions
- To rein in or eliminate some powers of the HOA board, such as the power to imposed fines or to foreclose on property
- Get rid of your Architectural Review Board
- Set limits on the HOA’s power to drastically raise assessments without the consent of all owners
- Eliminate any provision that gives a Declarant (developer) or HOA board an unfair advantage over the homeowners.
In theory, any HOA can amend its CC&Rs, by obtaining a supermajority vote of its membership. Most CC&Rs require at least two thirds of all property owners to vote in favor of each amendment.
In practice, it’s a daunting challenge to get enough owners to vote in the first place. The larger the community, the more difficult it will be to convince at least 67% of all property owners to vote in favor of an amendment.
And, as previously noted in this article, the success or failure of an amendment vote hinges on the allocation of property ownership (shares) in the association (corporation). If a developer or investor group owns enough property, it may be mathematically impossible to override their controlling share in the corporation.
However, amending the CC&Rs is quite doable in smaller community associations that are no longer under Declarant control. For a textbook example, check out this podcast about Olde Belhaven in Virginia. (Shu Bartholomew with Maria Farran)
Dissolving the HOA
Of course, one surefire way to eliminate HOA problems is to eliminate the HOA!
(NOTE: HOA dissolution only applies to planned communities, not condominium associations. Condo associations must follow state laws for termination, a process that is, more often than not, initiated by investors as a sort of hostile corporate takeover. You can read more about condo terminations on IAC.)
However, unless your CC&Rs have officially expired, you’ll be faced with the challenge of legally dissolving the association.
The process can be complicated. First, an HOA must gain a supermajority vote of owners agreeing to end the HOA. Then the HOA must figure out how to dispose of any common property it is obligated to care for and maintain. This is often the biggest obstacle to getting rid of an HOA.
For one thing, your local government probably won’t want to take over maintenance of your community pool or club house. Also, there may be no willing buyer for the common facility or the land it occupies.
Even if your community has no recreational amenities, it probably has private roads or stormwater infrastructure to maintain. Your local government may be willing to convert private roads, stormwater ponds and drainage areas, but only with strings attached.
Property owners in your community will have to agree to pay a tax assessment for any needed repairs, as well as increased property taxes to pay for ongoing maintenance. Ideally, the amount of your tax increase won’t exceed the HOA fees you currently pay.
However, what if your community’s privately owned infrastructure is in need of costly repairs or upgrades? And what if your neighbors cannot agree to give up private access to your community?
Then you’ll probably be stuck with an HOA, even if its only purpose is maintaining a private road or drainage area.
Plan your escape
Unfortunately, a homeowner’s options for resolving HOA problems are limited.
And, all too often, your HOA dispute will not resolved in your favor.
Typically, your HOA might make a small gesture to fix a problem or appease complaints. Then the HOA board can truthfully tell their allies “we tried, but the homeowner(s) still complained.”
It may be a tough pill to swallow, but be realistic about your expectations.
How likely is your uncooperative HOA to have a change of heart? Given the HOA’s budget and the quality of its management team, perhaps your standards impossibly high. You’ll have to decide if you can live with the disappointment in your HOA.
When to consider moving on
Are you obsessed with teaching the HOA a lesson? Do you feel compelled to “clear your name” so that your neighbors will decide to support you?
Stop. Don’t torture yourself. It’s time to remove yourself from a toxic, negative environment, before you ruin your health.
If you develop hostile relations with your HOA and neighbors, the HOA will probably look for ways to force out of your home and community. And no one will come to your defense.
Trust me. Your neighbors won’t care that you have invested a considerable amount of your time and money in your attempt to find justice.
It’s almost always less costly and disruptive to sell your home voluntarily, if you can — even at a loss.
Move first, sell later
What if you cannot sell your home, perhaps because of an HOA lien or pending litigation?
Consider moving out anyway. Do not allow the HOA to “win” by making you feel like a prisoner trapped in your own home.
Then, by all means, obtain the financial and legal advice you need. It will be much easier to consider your options once you remove yourself from the constant stress of living in the midst of hostility. You might even be able to rent the property until you can clear obstacles to selling it.
And take heart. If you choose to move on, you’re not admitting defeat. You’ve learned an important lesson about the value of private property rights.
IAC knows that nearly all homeowners (myself included) have breathed a great sigh of relief upon moving out of their dysfunctional, adversarial HOA-governed community.
And here’s the best part. Moving on provides opportunities to create a brighter future and a happier home life.