By Deborah Goonan, Independent American Communities firstname.lastname@example.org
Today’s post features answer to a common homeowner question:
“How can one fight people [the HOA board] who want to impose their will on you, if they can sue you into oblivion for speaking your mind?”
One particular homeowner went on to share that the HOA in question is planning to ask its members to vote on several new, more onerous restrictions, under the guise of protecting property values.
This post explains the obstacles an owners face when they decide to fight back, stand up for their rights, and challenge their HOA.
HOA controversies are numerous
Typically, I hear from homeowners that they and several of their neighbors are dealing with some sort of controversy in their communities. For example, homeowners have shared their experiences with the following issues:
- the HOA is suddenly enforcing new, overly-restrictive rules and restrictions;
- the HOA has proposed special assessment for repairs or capital improvements;
- neighbors are at war over parking problems;
- owners are engaged in bitter disputes arising from short-term rental properties, etc.
It’s inevitable. All groups of people — whether joined together by choice or by happenstance — are bound to disagree on how to resolve their problems.
And differences in opinion are greatly amplified in HOA-governed communities, where homeowners share the cost of maintaining common property. Complicating matters further, owners and residents are required to live by a common set of covenants and restrictions. These “HOA rules” are to subject to strict enforcement by way of fines or property liens imposed upon non-compliant owners by the HOA.
Dealing with a difficult HOA board
It’s no secret that 99 percent of homeowners have absolutely no interest in serving on an HOA board. For most of us, serving on an HOA board is about as appealing as getting a root canal. The sad truth is, homeowners almost never attend their HOA meetings, either. And that’s mostly because HOA meetings tend to be either extremely boring or highly contentious events with way too much drama.
Now, before I continue, I want to make it very clear that I have had quite a few serious conversations with HOA board members, many of whom have the best intentions. There are homeowner board members who truly want to do right by their community. But, sadly, not all HOA board members have good motives. On the contrary, for some strange reason, bullies and control freaks are often attracted to HOA board leadership.
It’s the abrasive and self-interested HOA “leaders” that use every manipulative tactic in the book to run “do-gooders” off the HOA board. Consequently, many of the homeowners that stumble upon IAC happen to be former HOA board members, hoping to find some easy and effective way to overthrow the board bullies.
What happens when owners complain or challenge the HOA board?
Unfortunately, as illustrated by today’s featured reader question, it’s common for property owners find themselves feeling oppressed by a dictatorial HOA board.
When that happens, an assertive homeowner will generally express their concerns or displeasures directly to their HOA board of directors.
Inevitably, when the HOA chooses to ignore or dismiss those concerns, outspoken owners will take the next step — they will attempt to gather grassroots support from other co-owners and neighbors.
That’s when the HOA Wars start.
Typically, an uncooperative HOA board, with the support of the HOA attorney, starts by sending “cease and desist” letters to the dissident homeowner. These letters sometimes contain veiled or direct threats: if the owner won’t stop complaining and criticizing the board’s action or inaction, the HOA will sue the owner for defamation.
That sets off a bitter controversy over Free Speech rights for HOA members.
At the same time, the HOA maintains full control over communication venues in the community. Not surprisingly, the HOA publishes newsletters, messages on its HOA website, and membership email blasts with messages that cast the HOA board in the best possible light. On the other hand, the HOA tends to cast the dissenting owner as an ungrateful, disgruntled, or uneducated troublemaker.
The harsh communication pattern sends a clear message to all owners — if you speak up, you’ll be shunned or worse. Understandably, most owners and residents in HOA-governed communities will do their best to avoid getting in the crosshairs of their HOA.
For these reasons, it can be difficult for a homeowner to go up against an HOA board, especially one that shows obvious signs of being power-hungry or corrupt.
If you’re skeptical about how far an HOA can go to silence an outspoken owner, check out the legal case Tarter v Bendt, where, up to this point, an HOA board member has prevailed in his defamation lawsuit against a condo owner.
The homeowner defendant in this lawsuit, Sonia Bendt, hasn’t given up. With the help of her attorney, she has appealed her case to Arizona Superior Court.
How to challenge or change your HOA
With all of the above factors in mind, here are a few actions you, the homeowner, can take. But understand that, in your HOA fight, you will face several challenges.
Try to prevent your HOA from enacting new, more onerous rules
If your HOA board is attempting to enact additional onerous restrictions, including those related to architectural standards, you will need to try to convince your neighbors to vote against these proposed amendments.
Mind you, unless you can garner the sincere and active interest and support of a substantial number of your neighbors, this can be a challenging endeavor.
As noted earlier in this post, because your agenda is opposed to the HOA’s agenda, you won’t be able to communicate effectively with your neighbors by way of official HOA communication venues.
That means you will have to organize your grassroots effort by going door-to-door or finding other creative ways of contacting neighbors personally, to discuss important HOA issues.
When you speak to co-owners, state your case clearly and concisely. Explain briefly why additional restrictions will do more harm than good. Stick to the facts, and avoid personal attacks on HOA board members.
Stating your case against more restrictive HOA rules
Your explanation should help owners understand how HOA industry attorneys frequently lobby to change state law to their advantage. The industry uses the false pretense of “helping” their client HOAs, by increasing the legal authority and power of HOA boards. On IAC, this nationwide effort is well documented under the Legislation tab on the main menu.
Make owners aware that state laws that reduce the voting threshold for amending covenants and restrictions disenfranchises a significant number of voters in the Association.
Across the nation, HOAs often disqualify votes of late payers and non-payers of HOA fees. I have also observed many cases of HOAs issuing fines for onerous and minor violations of the covenants and restrictions, as a way to designate owners as “not in good standing.” This is another way for an unethical HOA board to eliminate your votes on important issues, as well as board member elections!
These are all compelling reasons to avoid adding additional restrictions and rules for HOA members to follow.
Use caution on social media
You might have thoughts about starting your own website, or a discussion group on Facebook or Nextdoor. But think twice, and be aware, that online discussion groups can (and often do) backfire.
For starters, they provide your HOA board the opportunity to send trolls over to your discussion boards. Social media comment threads give your HOA even more ammunition to oppose you at every turn. You’ll be better off if you can personally discuss the issues with neighbors, face-to-face (or, in a pinch, using video teleconference apps), without giving the HOA a chance to refute every point you make in real time.
It’s certainly possible to rally troops of like-minded owners. But it will require a large commitment of your time, as well as your willingness and ability to patiently persuade the vast majority of your neighbors to see the issues the same way you do.
Be realistic about the amount of time and effort you are willing to devote to your cause. Re-evaluate your level of commitment if you discover that you’ll have to more or less go up against your HOA alone.
Being optimistic, and assuming you earn the support of many of your neighbors, you might consider the following options.
Dissolving your HOA
I sometimes hear from owners of homes in planned communities that wish they could simply make their HOA go away. Is that even possible?
Under certain conditions, maybe.
Let’s say your HOA is relatively small in terms of the number of homes in the community. Theoretically, it’s possible to dissolve the HOA, but only if you can get enough votes from your neighbors to do so. Most governing documents, such as your HOA declarations of covenants and restrictions, require at least a 2/3 majority of all owners to vote in favor of dissolving an HOA.
Challenge number one: That’s not an easy threshold to achieve.
But there’s another obstacle to dissolving your HOA. Even if you are able to collect the required number of votes, you’ll also have to find someone else to take over maintenance of your common property.
That’s important, because, if you can dispose of the common property, your HOA becomes unnecessary. But how will you do that?
Chances are, no owner in your community wants to purchase your HOA common area lots and maintain them.
And, although it may be possible to subdivide your common lots, then sell the land as additional buildable lots, some of your neighbors might oppose this plan. Owners tend to favor keeping open space, especially if new construction will alter their views or sense of privacy.
As for convincing your local government to take over ownership and maintenance of the common areas such as a drainage field, a retention pond, or your barely used community swimming pool, don’t count on it.
It follows that, if you can’t dispose of common property, you can’t get rid of the HOA responsibility to maintain the commons.
In other words, you’re probably stuck with an HOA in some shape or form.
If that’s the case, what else can you do?
Minimize legal powers of your HOA
This solution is more realistic for most HOAs, especially communities with townhouses, mixed-use buildings, and various shared recreational amenities.
If you can get enough other owners interested in amending the governing documents to remove your architectural review board, and all of its associated restrictions, that would be a good step on the path toward freedom from HOA abuse.
Among other things, this would end an HOA’s authority to dictate the color of your front door, your choice of landscape plants, and restrictions on children’s play structures, to name just a few examples.
Generally speaking, owners might consider doing away with most restrictions and rules that pertain to privately owned property, while keeping important rules necessary for managing common property.
Set limits on HOA fines and foreclosures
Another way to minimize HOA abuse would be to repeal the power of your HOA board to unilaterally penalize non-compliant owners by way of its internal enforcement committee. (Some refer to it as kangaroo court.)
For example, the HOA board’s right to impose fines for violations is a power that is often abused. Consider repealing the power of the board to fine owners, especially for minor offenses that don’t involve threats to health and safety, or cause undue public nuisances.
Owners might also consider limiting the HOA’s power to foreclose on a property lien, due to an owner’s nonpayment of HOA fees and assessments.
Although state laws generally allow an HOA broad authority to foreclose, they don’t mandate that HOAs use this tool to collect past due assessments. For example, members of an HOA can vote to limit foreclosure actions to properties that have clearly been abandoned, or homes that have been severely neglected to the point of violating multiple building codes. For otherwise occupied properties, the HOA can place its lien, and wait to collect funds (or write off the loss) when the home is transferred to a new owner, foreclosed by a lender, or sold at a tax sale.
Despite the obvious social benefits, getting owners to agree to less restrictive, more humane HOA amendments can be challenging.
Depending upon the culture of your community, some, perhaps many, of your neighbors may cling to the false notion that HOA restrictions, rules, and architectural standards protect their property values. These owners will likely be unwilling to modify or remove restrictions, rules, and architectural standards, making it difficult to accumulate enough votes to amend your HOA governing documents.
The larger your community, and the more neighbors you need to convince to amend your governing documents, the more difficult it will be to change the governance of your HOA.
When to give up the fight against your HOA
I know this won’t sit well with some readers, especially those who are deeply committed to winning the war with their HOA. But, I’m going to state the obvious anyway.
If you try all of the above options, but still find that positive change in your HOA is elusive, you will want to consider giving up your fight. You will then have to decide whether to accept your HOA as is, and learn to live with it, or to sell your property and move out — not necessarily in that order.
I suspect some of my readers have just gasped in exasperation.
But I also know that nearly all homeowners who have been through Hell and back with their HOAs wish they would have let go of their HOA fight years sooner than they did.
I certainly realize that moving is inconvenient, costly, and perhaps impossible for some homeowners. But the truth is, in the end, the majority of owners I’ve communicated with over the years ultimately chose to move out of the home to escape their HOA.
As I have documented here on IAC, the HOA governance structure, as it currently exists, is fundamentally flawed. An unfair, unbalanced legal system is tilted far in favor of the HOA, the holders of corporate power.
In the early stages of community development, the Declarant/Developer holds the strong advantage over housing consumers who purchase new homes. Later on, when all the homes have been built and sold, the HOA’s board of directors holds the upper hand. To make matters worse, sometimes the HOA is goaded on by opportunistic HOA managers and attorneys.
HOA Wars not worth fighting
Let me reframe your problem, so you can put this into a more constructive perspective.
I see “HOA wars” as battles that can be as convoluted and un-winnable as historic military-political conflicts — think Vietnam War or the United State’s 20-year war in Afghanistan. Few American believe that either of these conflicts was worth our time and treasure. These wars certainly weren’t worth the lives of many thousands of American military and civilian casualties.
To clarify, I realize that HOA battles are fought on a different, more “polite” front — the courtroom. But in the U.S. legal system, where corporate HOAs hold vast advantages, they often engage in fierce guerrilla litigation warfare.
The HOA’s goal when challenged, as previously stated, is to intimidate and discredit the homeowner, then outspend the homeowner to ultimate defeat.
That’s not to say that homeowners never score legal victories. A few determined souls have managed to “win” their HOA battles, but at great cost, both financially and emotionally.
I have written about several of these HOA homeowner legal victories here on IAC.
Without exception, these “wins” come at great cost — up to six-figure dollar amounts in legal fees, fees which are NOT fully recovered, even with court awards for attorney fees. Plus, winning is a grueling process. The typical HOA legal battle takes 3 to 7 years to play out, including appeals and subsequent remands to the lower court.
Non-tangible costs of HOA wars
Before you choose to fight and go to war with your HOA, be mindful of the added stress it will cause in your life, and that of your family. The price you pay will include stress on any children you have living at home. You and they will be shunned by “friends” and neighbors who no longer want to be associated with the community “troublemaker.”
It’s not fair, but that’s the reality.
Sometimes in life, it’s better to choose one’s battles, and avoid the fight. My suggestion is to discretely, quietly plan for your ultimate escape from HOA governance. Hone your survival skills to preserve your sanity in the meantime, so you can exit gracefully when the time comes.
Don’t think of giving up your HOA fight as admitting defeat.
Think of it as separating yourself from destructive forces, like walking away from a toxic business relationship or a bad career choice. Because, in essence, that’s what ownership of HOA-governed property is — an often-regrettable business decision to “share” ownership and maintenance of the “commons” with other owners, under a poisonous blend of private government and corporate management.
And, no, I’m not asking you to immediately give up your home, if that’s the best choice for your family right now.
But I am preparing you to embrace the option of giving up your fight, ending the HOA war, while you still own your home.
Bottom line: If you cannot get other homeowners/neighbors interested in opposing your HOA, let go of being right, and go with the flow — at least temporarily. In the long run, this may prove to be your best option.