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Having a problem with your homeowner’s association? | Glenbrooke News

Bringing Neighbors Together

Having a problem with your homeowner’s association?

Submitted by Ron Molohan - written by George K. Staropoli, Citizens Against Private Government HOAs, mail: pvtgov@cs.com 

I’ve been working as a homeowner rights activist for several years.  I’ve made presentations to the Arizona HOA Study Committee and several legislative committees on HOA reform bills as well as publishing extensively on the Internet. I had a problem with my association, like you, and found out that I was on my own.

First, let me say that I’ve heard the homeowners present their problems before the Arizona legislators, before a special hearing by Nevada state senators and over the Internet by means of several HOA advocacy email lists. Your problem will be like these, except for the details. You are not alone.

I’ve seen and heard our legislators walk away with, “We don’t want to hear any more horror stories. We will be going slowly so as not to  upset those associations that are doing things right”.  The media has also ignored the basic issues that are resulting in these wide-spread problems with HOAs, and focus on isolated stories that do not convey the fundamental democratic problems with these private governments.

My opinions and views as to how to  handle your problem are given below. I tell it as I see it, no glossing over the issues.

Background on HOA problems

In short, you are on your own. Since the courts view the CC&Rs as a valid contract, that you entered into openly and with knowledge, they  will hold you to  it.  If you failed to read the CC&Rs and bylaws, or failed to get an attorney, the courts still hold you bound to  the contract no matter if it strips you of your rights guaranteed under the Constitution.  Our Constitution prevents the state from interfering with private contracts, so neither the Attorney General nor county prosecutor are of any help.  The courts will read the CC&Rs to which you are bound, that are heavily slanted in favor of an unregulated board of directors,  and usually decide against you.  If you win, after spending several thousands of dollars, you simply get the information requested from the board, or that the meeting must be open, etc. No penalties or fines to act as a deterrent to further such acts by the board.

The reasons why are long and numerous that I will skip here. The general attitude promoted in the public toward HOA problems is 1) follow the rules or move out, 2) you are trying to  back out of a contract and 3) use the democratic processes in your HOA to remove the board of directors. These are myths and over simplifications as you well know. Yet, the media publishes these “solutions” from those who are creating the problems. A sad state of affairs.

Possible solutions to your problem

Let me say at the very beginning that many homeowners don’t realize the extent of the powers of the HOA over their lives.  Many of the complaints brought against the HOA are just that – an exercise of its “legal” powers. When the exercise of these powers becomes capricious, or vindictive to punish  a troublemaker, or for personal reasons, or are violations of state laws or the governing documents, then you have a legitimate grievance. The advice given below is for these type of problems.

  1. First, the advice you get from the newspaper columns are generally provided by CAI attorney members whose objectives are to  maintain the status quo.  They will quote existing laws that provide for undemocratic, private corporation -- HOAs – to govern your community. These laws are strongly in favor of the HOA board of directors  and provide no homeowners bill of rights.  These CAI members will also provide platitudes and advise you about such things as ‘work it out with the board”, or “vote the board out”. All of which will generally get you nowhere with rogue boards. 
  1. In defense of these accusations, I usually reply with a pattern of repeated behavior of deceptive marketing practices is being used to hide the truth from unsuspecting homeowners. Neither the legislatures, nor the media, nor the enforcement officials, nor the Realtor associations are interested in calling these practices to the attention of the public.
  1. CAI, Community Associations Institute, has opposed homeowner rights and American principles of justice and equal protection of the laws. It’s a business trade group that supports the profit-making interests of its attorney and management firm members, and  heavily lobbies state legislatures.  If CAI is involved with your HOA, you will have a very difficult time of it.
  1. The authority for the HOA to act comes from the CC&Rs and the bylaws, generally referred to as the governing documents.  You must read them and understand them. They are “the rules of the game”.  State laws also come into play and can be used, too. Just don’t expect any enforcement from state officials.
  1. Sometimes it’s possible to rally the indifferent and apathetic association members to hold special meetings and to replace the rogue board of directors. You need to follow the governing documents.
  1. Document all your correspondence with the HOA and HOA attorney.  If charged with violations and fined, ask for proof of such violations and be prepared to defend your innocence.  Be polite and no personal attacks. Keep to the facts. Quote the governing documents and state laws, and ask for explanations, or to support your requests to the board.
  1. Sometimes the Fair Debts Collections Practices Act, federal law, can be brought to play if fined and you dispute the fine or the harassment. HOAs are regarded as any other debt collector and must follow this law. Sometimes the American Disabilities Act can come into  play, if appropriate. It’s unlawful to file a false lien against anyone, so you can advise your board accordingly.
  1. Publicity and exposure help to quiet these outrageous boards.  Try the “investigative reporters” or distribute a newsletter to the members.
  1. WARNING!  Almost everyone of these rogue HOAs, based on the experiences of many others, will resort to “hardball” tactics, even unethical actions.  Other homeowners have reported false fines, liens, foreclosure threats, harassment, threats, animosity from other members and a general state of “us against them”. If you are not ready to deal with these possible reactions, then go along or move out. Sorry, that’s the bottom line. 
  1. If you decide to fight back, you may need an attorney and go to court to settle the issue. It is very difficult to find a competent HOA attorney willing to go against the HOA. The reasons are 1) the HOA has “deep pockets” and pays more often, 2) the attorney doesn’t want to be “black-balled by the HOAs, and 3) you need a retainer of a few thousand just to  get the ball rolling.  Your HOA attorney will not help you, but will defend the acts of the HOA, and many times, provide “roadblocks” to prevent having to  admit that the board is violating either the governing documents or state laws.
  1. An excellent book on how to deal with your HOA is written by a board member with an eye toward good community relations. The book, Homeowners Associations: A Nightmare or a Dream Come True?,  by Joni Greenwalt, can be reviewed on my site with a link to the author’s site, at http://pvtgov.org/ and click on Books.  I receive no remuneration for this promotion. 
  1. GOOD LUCK.  You may contact me over the Internet and I will try to help. I AM NOT A LAWYER AND I DON’T GIVE LEGAL ADVICE. 

George K. Staropoli

Citizens Against Private Government HOAs


May 2002





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