First, this article is written from the viewpoint of a California resident. Much of the information presented here is relevant to other states, but you should check your own state’s laws to make sure they are the same or similar.
For most people buying a new home in today’s America there is usually a mandatory membership to a homeowner association, referred to as an “HOA.” These organizations are essentially mini governments that posses the power to make and enforce laws, including the right to foreclose on a family’s home, townhouse or condominium.
The original intention in the creation of the HOA envisioned an active participation by all of the members; a tight knit community where common problems were dealt with by the community members through the offices of the HOA.
The reality is nothing like the vision.
Today, in most cases an HOA is a very small number of people who actively keep the authority of the HOA in their hands, and their hands alone. Usually these circumstances are brought about by a lack of participation by the majority of the HOA members.
The lack of member participation creates a certain rational for the Board of Directors, who interpret the other member’s disinterest as the reason they must keep the HOA’s authority to themselves. The community becomes divided between those who control the Board of Directors, and everybody else.
For everybody else, an HOA is typically not easy to deal with. They wield the authority to foreclose homes, levy steep fines, and often control aspects of the community members’ lives that typical Americans believe are a precious homeowner’s private right, like what your kids are allowed to do while playing in their own backyard.
Homeowners often find themselves in a contest with their HOA over these rights. Can I park my car in my driveway? No, says the HOA because we few active members passed a law that says you can’t park a car in your own driveway unless you use the car every day.
Can my kids play basketball in our own backyard? No, says the HOA, because we few active members passed a law that says no basketball courts are permitted that can be seen from the street. And, by the way, you are not allowed to cover that open fence to limit our visibility into your backyard because we few active members have passed a law that says we have the right to see into your backyard.
Can I tint my windows? No, says the HOA, because… Well, you get the picture.
Now the part you have been reading to find. How do you defeat your HOA?
First, you must make sure you continue to pay your HOA dues. Most homeowners who get into a fight with their HOA over issues like a rule restricting backyard activities, use of your own driveway and garage, and denials of your planned home improvement projects, often get angry and stop paying dues.
This is a mistake. Pay your dues. However, you can usually omit paying those late fees and fines. In California, an HOA cannot foreclose your home based on accumulated late fees, fines, and other expenses like the ‘cost of collecting’ your unpaid late fees and fines.
They can sue you in small claims, or even in the limited jurisdiction of the Superior Court because then they will get attorney fees, which will be huge. The resulting judgment, however, is far more difficult to use to foreclose on your home because it has no priority over existing liens, meaning the HOA would need to pay off your mortgage to get your home using a lawsuit judgment. (In California, the moment you lose such a lawsuit, go the State Bar and demand Fee Mediation – HOA lawyers charge you like they are first class lawyers, but charge their clients like they are 1st year noobs.)
But, let’s not let it get that far, OK? Here are a few basic rules to live by when dealing with your HOA.
HOAs typically don’t have a properly elected Board of Directors. As soon as you receive that annoying letter telling you to stop your kids from playing in the backyard, send a letter back asking to have a copy of all the Governing Documents.
Hopefully, the HOA will ignore or deny this request.
They are not allowed to deny or ignore a request for copies of the Governing Documents.
Obtain a copy of all your Governing Documents and read them to see what constitutes a properly elected Board of Directors. In those communities where member participation has been limited to just those few who want to be Board Members, there typically has never been a “quorum” attained to properly elect the Board.
The Board, therefore, is usually sitting by default.
Default Board’s are limited in the scope of their authority, and in some cases have no authority at all.
In all your correspondence, constantly remind the Board that they are not properly elected.
Follow these basic steps;
1. Demand a ‘meet and confer’ with a Board Member to discuss the issues. The HOA is not permitted to deny your request to meet and confer. Record the meeting on video.
2. Demand a hearing before the Board. Record the meeting on video.
3. Appeal the Board’s decision. Record the Appeal Hearing on video.
4. Demand Mediation after the Board affirms their previous decision at the Appeal.
Typically, HOA Board of Director members are not well versed in the laws governing the operation of an HOA. many will be passingly familiar with the portions of the relevant foreclose laws, and of course they will know the HOA’s rules and regulations by heart.
However, I have found that often the Board of Directors are not familiar with the requirement to meet and confer in good faith. Therefore, it is common that the Board of Directors member who appears to meet and confer, will meet but not confer. There is a good faith requirement that renders inappropriate the kind of responses the typical HOA Board of Directors member will offer in response to your questions.
For instance; you have received a letter saying you must move you 1966 Ford Mustang from your driveway because it is not driven every day. OK, you say, “what proof do you have that its not driven every day?”
“We have an anonymous tip from another homeowner” replies the HOA Board member.
“OK, you had a complaint. But, what proof do you have that the Mustang is not driven every day? A mere complaint is not proof and does not rise to the level of a violation. You are supposed to investigate to determine whether the complaint was fact or mere opinion. So, what proof do you have?”
There is a very large probability that the “complaining member” was none other than the Board of Directors themselves who merely discussed your Mustang at their last meeting. So, no proof exists.
Write a summary of the meet and confer. State that the Board Member did not have any proof of the violation, and therefore no violation exits.
When the HOA sends you its next letter, usually a threat to move the Mustang or face steep fines, you send a letter denying that any violation exists. Remind them they are not properly elected, and that the results of the meet and confer were favorable to you, not the HOA.
The HOA is supposed to set a hearing where evidence of your violation is presented, and then rule on the evidence and testimony provided at the hearing. Make sure you demand such a hearing, and make sure you attend. It’s a good idea to record the meeting by video.
Not surprisingly, the HOA will rule in its favor, even when you have evidence that proves no violation existed, or they had no evidence that proves a violation existed.
Demand an appeal. Make sure you attend, and yes, record it on video. At the Appeal Hearing, point out that the Board Members are not properly elected and did not have facts to support their previous ruling.
When the Board affirms their prior ruling, demand mediation.
At the mediation, point out to the mediator that the Board is not properly elected, failed to meet and confer in good faith, called a disciplinary hearing without any proof that a violation existed, ruled against you without any proof that a violation existed, and affirmed their ruling despite a lack of evidence and/or evidence to the contrary.
Mediators will only want to split the matter in two; if you have been fined $1000, they will encourage you to offer $500.
Your next step is the most crucial. The HOA will expect you to pay, or in the most unlikely situation, to file a Superior Court action to enforce the Governing Documents.
Instead, you file what is called a “Writ of Mandate.” This is the proper venue to appeal the Board’s ruling.
While this will cost you some attorney fees, it is the winning move. HOA’s and their lawyers typically are not familiar with this particular judicial option and will be totally out of their depth when confronted with a Writ of Mandate.
The Writ Court will, however, entertain you because you are appealing an administrative body who has the obligation to accept and rule according to the evidence and testimony presented. And, then they fail to rule according to the evidence, they can be reversed by the next higher court. In California, the next higher court above the Appeal Hearing of an HOA is the Superior Court’s Writ Judge.
If you have carefully compiled the evidence indicated above, you are highly likely to prevail. The fines will be reversed, the late fees etc will be voided, and your attorney will be paid by the HOA.
Thereafter, the HOA is likely to turn a blind eye on your Mustang, or your kid’s backyard basketball court, and look for easier victims.