The Runaway Power of Homeowners Associations

Wind chimes hanging from front porches, basketball hoops in driveways, shampoo bottles on bathroom windowsills. Innocent markers of daily life? Depends on where -- and among whom -- you live.

For the 57 million Americans living under homeowners associations (HOAs), these can be flagrant violations of their neighborhood regulations, costing them hundreds in fines -- and at the worst, their very homes.

"No one tells buyers what deep doo-doo they can get into," says George Staropoli, who lives in an HOA in Scottsdale, Ariz., and founded Citizens For Constitutional Local Government, a homeowners' rights group. "It's a government outside the U.S. government."

Indeed, HOAs are free to regulate practically anything, so long as they don't violate state and federal fair housing laws regarding age, race or handicapped access. (An exception is made for senior living facilities, which can regulate the age of residents.) While most HOAs focus on controlling the cosmetic aesthetics of a neighborhood or building, there seems to be no detail too mundane to escape their attention.

The dog in the lobby

Pamela McMahan didn't expect her cocker spaniel to become a problem at a historic condominium building in Long Beach, Calif. But she was fined $25 each time she walked her dog through the lobby because HOA rules required all dogs to be carried. McMahon, an elderly woman who walks with a cane, said she couldn't carry the dog. She racked up hundreds of dollars in fines last year and has since moved from the building.

"There are just too many things going on in the lobby; the dog might jump on someone or go to the bathroom," says Stormy Jech, an assistant property manager in the building.

Other things HOAs commonly regulate include:

   -  Shingles and exterior paint color.

   -  Fences and hedges: whether you can have them at all, and if so, what type, color and how tall -- right down to the inches.

   -  Trees, lawns and weeds: what types of plants can be put in and even how many times a month you must water and mow your lawn.

    - Pools: These are often hot-button items. Boards regulate whether owners can have pools, diving boards and how large they can be. Community pools often come with strict rules on times they can be used, supervision of youngsters and whether guests are allowed.

   - Swing sets and basketball hoops: At some communities these are big no-nos. At others, they must be small and out of sight. Owners often get into trouble if they are in the front yard.
  
   - Garages and sheds: Unauthorized sheds are another sticking point, and junky garages will get you in trouble, as will leaving your garage door up.

   - Mailboxes and garbage cans: size, color and types. Also, leaving garbage cans out for more than a day can get you fined.
 
   - Pets: size, type and breeds. Dogs off leashes are usually prohibited.
    
   - Outdoor lights: One family got in trouble for leaving their tasteful, white decorative Christmas lights up until February. Know what types of lights and how many are allowed.

In addition to setting standards for your own home, homeowners associations usually require members to pay fees for common property maintenance. The assessments can run particularly high if the development has a pool, golf course or other recreational facility. And many HOAs let their boards raise regular dues up to 20% per year and levy other fees for capital improvements.

Beware what you're buying into

Some people love the security of an HOA and the rules designed to protect property values. According to a study by the Community Associations Institute, which represents community associations, more than 70% of people living in HOAs have had a positive experience. The danger is that most homeowners, especially first-timers, don't realize the extent of the control these associations have until it is too late.

Even if homeowners get copies of the covenants, conditions and regulations, it can be hard to decipher them. The rules are often written in legalese and can be 100 pages or more, leaving owners without a clear understanding of the extent of the regulations or what can happen if they don't comply.

"Basically, you have people who own their home, but are being treated like tenants," says Janet Portman, a managing editor at Nolo Press in Berkeley, Calif., and author of "Every Landlord's Legal Guide." "People running these associations can get into real power trips."

One homeowners association in Arizona paid residents to turn in neighbors who violated association rules. Those reporting someone with a dog not on a leash got $100; someone reporting a resident throwing away trash not allowed in a Dumpster got a $150 reward.

Vindictive as that may sound, it pales in comparison to other HOA nightmares: Marie Brown, a 77-year-old widow in Arizona, was evicted from her home of 18 years after it was foreclosed when she failed to pay her association dues and fines levied for failing to keep up her property.

In Sea Ranch, a managed community in Northern California, a widower had his home foreclosed on in 1995 when he didn't pay $600 in owed association dues. The house, worth more than $300,000 at the time, was auctioned and sold to someone for $2,000, according to his attorney. After a protracted legal battle, he got his home back.

Even a small amount of money can get homeowners in big trouble. Just ask Tom and Anita Radcliff, a retired couple in Copperopolis, Calif., who had their home foreclosed by their HOA in 2002. They were late paying $120 in annual dues when Tom Radcliff became ill. Until then, they had paid dues on time for five years straight.

"They didn't even know about the foreclosure until someone came and gave them a 30-day notice to vacate the property," says their attorney, Michael Macomber, who filed a suit on their behalf  and was able to get their home back. "Why didn't someone just pick up the phone and call them?"

Messy, personal business

Unlike most laws, which are enforced by nameless bureaucrats, conflicts in homeowners associations can get petty and personal very quickly.

"When you have a neighbor being put in charge of you, it just breeds resentment," says David Feingold, a San Rafael, Calif., lawyer who has represented homeowners associations in disputes with neighbors for more than 10 years.

Sometimes the group responsible for enforcing the rules, a volunteer and elected board of directors, gets carried away with its role.

"Homeowner associations will dig in like nobody's business and will spend obscene amounts of money to enforce their rules," says author and lawyer Portman. "There is a sense of the slippery slope thing. If they let one person do (anything outside the rules), the community will not have that consistent, conformed look."

Unfortunately, violence is not unheard of.  In Northern California's Marin County, the head of an HOA and a resident got into a battle over a shared patio wall. They ended up in a fistfight, rolling down a hill. The board president, an older man, had a minor heart attack and later sued.

"The fistfights and almost coming to blows, it's not uncommon," says Feingold. "I've been in the meetings and seen it -- pure rage. It comes from that 'home is my castle' kind of feeling."

HOAs not universally hated

HOA supporters point out that associations are governed by an elected group of neighbors and that all property owners have a voice in monthly meetings usually open to homeowners.

"It's important to remember, these are democracies at their basic level," says Frank Rathbun, spokesman for the Community Associations Institute. "They are elected by the neighbors and run by 1.7 million volunteers nationwide."

Others argue that there are plenty of HOAs that hold meetings that are not open to everyone -- and some that even change bylaws so majority approval isn't needed to change regulations.

Some state governments are taking notice. New legislation in Arizona, Texas, California and Florida is attempting to move power back into the hands of homeowners and limit the ability of HOAs to foreclose on homes, for example. And in California, where HOAs are numerous, a new law requires associations to show residents detailed information on the HOA's finances several times a year.

How to protect yourself

Despite conflicts, it's clear the HOAs are not going away. There are more than 286,000 nationwide and the number is growing -- and with them, so is the need to exercise caution when you're home hunting.

"When you buy a home, just as important as the state of the roof and plumbing is … what it has historically been like to live with the HOA that comes with your home," says Portman.

The Community Associations Institute's Rathbun agrees: "We strongly urge people to understand the nature of the community they are moving into -- before they buy."

What you should know before buying into a homeowners association

Once you have an eye on a home, ask the real estate agent if it is part of a homeowners association. If it is, make sure you take the following steps*:

    -  Get copies of the governing documents from the association manager.

    -  If you don't understand the rules, ask your real estate agent or lawyer for help.

    -  Take time to talk to people who live there about the association.

    -  Know how much the assessments are.

   -  If you are on a tight budget, find out how easy it is for the board to increase the assessment amount.

    -  Does the community have a cash reserve for new projects?

    -  Are there restrictions on renting?

    -  Do you feel comfortable with the architectural guidelines?

    -  What are the rules on pets, flags, satellite dishes, fences, patios, and home businesses?

   -  If you are considering an age-restricted community, what is the policy on underage residents and visitors?

    -  Consider whether the rules fit your lifestyle and sense of community.

*Tips provided by the Community Associations Institute

Courtesy: Debora Vrana of MSN Real Estate. 

http://realestate.msn.com/article.aspx?cp-documentid=13107752

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.   

Psychology of Neighbor Disputes

Psychology of Neighbor Disputes

I very much doubt that he had either boundary disputes or rights of way in mind, but if everyone could find it within themselves to remember that the rights they assert for themselves might impinge upon the rights of their neighbors, and make allowance accordingly, then there might be far fewer boundary disputes.

If you are in a dispute with your neighbor, whether over the position of your common boundary or some other matter, then your selection of an appropriate method of resolving the matter can only be assisted by an understanding of what is driving your neighbor's actions in his complaint against you. Here are the main behavioral types, one of which will be exhibited by your neighbor. If you understand which behavioral type your neighbor is displaying, then you can strengthen your position by choosing which behavioral type to adopt yourself.

It will also help if you can find your way behind your neighbor's complaint to identify what is the real problem that needs addressing.

Behavior types

1.    Anything for a Quiet Life

It can be very tempting to just concede whatever your neighbor wants. It is quick, it is cheap, and it may minimize the emotional and psychological damage that you could suffer in a boundary dispute.

Disadvantages: How do you know that, because your neighbor was given such an easy victory this time, he won’t come back for more easy pickings in the future?

2.    The Man (or woman) of Principle

The Man of Principle knows what is right and what is wrong, and he won’t tolerate wrong-doing in others. He knows where his boundary is, he believes in justice, and he won’t quit until he sees that justice is done (or until he finds out that justice is, on this occasion, not on his side).

Don’t be a Man of Principle when you could be a Negotiator and resolve your dispute much more quickly, cheaply and with far less bother.

If you find yourself in dispute with a neighbor who is a Man of Principle then everything becomes very black-and-white and you probably have only two options: adopt the Anything for a Quiet Life mentality, or settle in for a potentially long and expensive resolution of the dispute conducted in a formal manner, such as mediation or a county court trial.

3.    The Negotiator

The Negotiator will first of all try to establish precisely what the problem is (see below for some frequently encountered problems). He will then want to understand the problem and the means of rectifying it. Next he will consider both what he is seeking from a resolution and what he is prepared to concede in order to resolve the problem.

The Negotiator will then make an opening offer to the other party. If the other party is also a Negotiator, then he will make a response and a counteroffer. The Negotiator will consider the response and counteroffer, and make a further offer.

The aim is to arrive at a settlement that both parties can accept, and preferably a settlement that allows both parties to feel that they have gained something from the negotiation (the win-win situation).

The purpose of negotiating your way out of a dispute is to achieve a settlement quickly and cheaply and to get on with your life.

Being a Negotiator is by far the best way of settling a boundary dispute, but it only works if your neighbor is also a Negotiator.

4.    The Bully

The Bully is someone who won’t see any point of view other than his own and won’t negotiate – he wants his own way and nothing less.

The Bully is quick to tell you what horrors will befall you if you do not concede to his every demand. The Bully will not expect you to stand up to him – experience tells him that most people are afraid of him, and it is other people’s fear that encourages him to continue using bullying as a tactic.

There are two ways of dealing with a bully:  present him with an unanswerable case that you are in the right: to do this you need a professional opinion (but note that a professional opinion carries no weight in law and that your neighbor is not legally bound by a professional opinion provided by your expert); treat him as if he was a Poker Player, and become a Poker Player yourself –- which takes nerve.

5.    The Poker Player

For many people, poker is a difficult card game to understand. Poker is not about holding the strongest hand, but about making the other players think that you hold the strongest hand.

To play poker, one player lays a bet (or stake) that he holds the strongest hand. Each player in turn then has to decide whether to quit, to meet the stake or to raise the stake.

A quitter decides that he has a weak hand and that he will be unable to bluff his opponents that he has a strong hand. He forfeits any stake that he has already placed on that hand and plays no further part in the hand.

A player (who is one of only two remaining players) meets his opponent by matching his opponent’s latest stake but demanding that both players show their cards in order to determine who has the stronger hand.

A player who goes on and on raising the stake is a player who has the nerve, or the resources, to continue playing until all his opponents quit.

A poker game usually ends when it becomes clear that none of the other players have sufficient money with which to continue playing against the player who is able to continue raising the stakes.

There are analogies to be made between a boundary dispute and a poker game.

    The owner with the best case as to the position of the boundary is the player with the stronger hand.

    The neighbor who tries to convince him otherwise is the card player who is bluffing.

    The owner who hasn’t the stomach, or perhaps the money, to take the dispute further is a quitter.

If you find that your neighbor is a Poker Player then you have little choice but to play along with him.

It is not all bad news though.

You can try to “meet” him and call his bluff.

For example, you could do this at an early stage by saying to him, “I’ll make a copy of my title deeds to show to you if you will show me a copy of your title deeds.”

If that doesn’t resolve the issue then you can try again at a later stage:

“Now that we have both received our respective surveyor’s reports it is time that we exchanged those reports.”

Or again, you can say, “Let our respective surveyors meet and agree between themselves a solution that will be binding upon us.”

If you have a strong case and know that your neighbor’s case is weak then you have to summon the nerve to make your neighbor think that you can go on and on raising the stake. Your hope will be that your neighbor will either quit or meet you. But raising the stakes is a dangerous game that could end up in an expensive court case.

Having read this description of behavior types, you will hopefully conclude that by far the most sensible behavior to adopt is that of The Negotiator, and that it is necessary to persuade your neighbor to be a Negotiator too. That way, there is a chance that you both may win, and you will certainly reduce the cost, the time and the distress that would otherwise attend your boundary dispute.

What is the real problem?

A boundary dispute may arise when a technical problem is uncovered relating to the position of the boundary: Incompatibility of title deeds: yours and your neighbor’s tell different stories as to the position of the boundary; inadequacy of title deeds: the boundary descriptions are so poor as to be difficult to understand, or even meaningless; errors in title deeds: his deeds carry a dimension that your neighbor holds as the gospel truth when anyone can see that the dimension must be wrong because it just doesn't fit any physical features past or present; failure to understand general boundaries: your neighbor swears blind that the boundary is where Land Registry says it is.

Very often, such technicalities may be aired in pursuit of a dispute, which isn’t actually a boundary dispute at all, but a dispute in which your neighbor has another agenda, such as: he is trying to regain a few inches that he feels were lost when your predecessor erected the ancient fence that you are now proposing to replace; he is trying to take control of your hedge because, although you would like it to remain in place, he wants to replace it with a fence so as to maximize the space within his garden; he is trying to take control of your hedge because he would like it to remain in place whereas you would prefer to replace it with a fence so as to maximize the space within your garden;  his current needs exceed the old specifications to which his house was built; [e.g., his drive is not wide enough to allow him to park a car beside his Victorian house - but there weren't any cars in Victorian times!] [e.g., he now wishes to drive wider vehicles than his access way was designed to accommodate]; he is trying to overcome the totally inadequate design of his small front garden (an increasing problem in areas of high density modern housing), particularly the contorted access onto his driveway or into his garage, and he needs some of your land to be able to get his car in and out without damaging it; he lacks the land to satisfy his development plans [his land simply won't accommodate the minimum sized garage or extension between the side of his house and the boundary]; avarice: he has tried to grab some land whilst he thinks no-one is looking, either by occupying some apparently waste land, or by erecting or moving a fence onto his neighbor's land whilst it is unoccupied; avarice after the event: he has spotted that the title plan puts the boundary in a different place from where his fence is, i.e., he thinks he is entitled to more land than he actually purchased; he is trying to avoid responsibility for maintaining the retaining wall that supports your land; he is trying to get you to pay for necessary repairs to a retaining wall (that you think he owns) that supports his land; he is a NIMBY (not in my back yard) who has been unsuccessful in objecting to your planning application and is now trying a boundary dispute as a means of thwarting your plans;  he is treating you as the new kid on the block and is subjecting you to painful initiation rites before being accepted into the community; he is sticking to his principles, even though it would be better for all parties if he were to enter into a negotiated settlement (removal of antagonism, reduced expense, quicker resolution); he is suffering from a terminal breakdown in neighborly relationships: relations between you and your neighbor are at such a low ebb that he will do anything to annoy you, even to the extreme of tying you into a boundary dispute to prevent you from selling up and moving when it would clearly be in his best interest to do all that he can to facilitate your move.

Once you have ascertained what it is that drives your neighbor's thinking you are in a better position to start negotiating with him, or to decide what other course of action to take if negotiation is not a viable action.

This article is not intended to be specific professional or legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.