HOA headache

September 12, 2011 9:49 AM

Is my Homeowners Association being arbitrary and capricious in enforcing its rules?

*You are not my lawyer*; nevertheless, opinions are requested. Forgive a slight amount of vagueness in certain parts of my question. As many of you are aware if one is too specific here on the green, someone else doing a google search on the same topic will find this thread in their top ten within days.

Four years ago, we wanted to erect a specific type of sports equipment on our driveway (hint/hint..think LeBron James). The committee of our HOA that handles these matters declined our request, stating simply that they were prohibited. Well, in fact, they're not according to the CC&Rs, they just simply need to be approved by this committee. Nevertheless, we abided by this decision and did not erect this structure. In the intervening 4 years, we have seen at least a dozen obvious violations of the CC&Rs, and reported almost all of them to the President of the HOA. In every instance except one, he has failed to cite the homeowners or even point it out to them. When asked he said the corrections would place undue burden on the homeowner. The problem is that in each instance, the homeowner was required to report their landscaping/architectural plans to the same committee that denied our request...BEFORE they made the modification to their home/property, none of them did.

Also, over the course of the last four years, neighbors have come and gone and the makeup of the community has changed (i.e., more families with kids) so we thought, as per the CC&R rules we could bring this up for a vote. There are only twenty five homes in the community, unfortunately, the aforementioned committee for "architectural" matters has had the same three members for nearly a decade. They do not want this vote and claim their decision is final. And forgive a little age-ism here, but they are retired individuals who have openly said to me that children should not be playing in the neighborhood, that's what parks and YMCAs are for.

What options do I have? What would you do? We plan to encourage the homeowners that agree with us (likely a majority now) to try to run for HOA office to maybe oust this committee, but also we wonder based on my description above if we've been treated unfairly and that the fiefdom of our little HOA is selectively harming us and not impacting others represents some sort of true legal abdication of their responsibilities. In the end, the HOA has only a couple of thousand dollars in its account at any one time, so the ability to get into a legal tussle with us is severely limited.

Obviously, we're angry and slightly vengeful. Please help me see through the fog of the smoke pouring out of my ears......Thanks.

posted by teg4rvn to law & government (22 answers total)

Put up the hoop. If they dare ask you to take it down, tell them it will cause an undue hardship and until all other violations are corrected, you are not able to take yours down.
posted by JohnnyGunn at 9:56 AM on September 12, 2011 [20 favorites]

Homeowner associations have powers you don't want to mess with. If you want the hoop bad enough either put one up and see what happens (but don't fight it when they tell you to take it down unless you have an attorney), or get an attorney now and press the issue first.

And, read the covenant carefully, there must be a clause for changes to be made via a vote, they can't keep you from doing that.
posted by HuronBob at 10:00 AM on September 12, 2011 [1 favorite]

Long story short: HOAs are a tool of the devil. IANAL, but from my limited knowledge, this is not an obvious win for you legally; the bar to proving a pattern of bias is high. In the meantime, they can make your life a living hell. Your best bet is to get a new board elected; even that is going to be difficult and may cause friction. If the HOA decides to pick on you they have a number of ways of doing so that you will find irksome and difficult to oppose. They can impose fines and if you do not pay them, they can seize your house. I am neither joking nor exaggerating. So far, your HOA doesn't sound quite that evil, but hey, get into a years long grudge match in which you try and get their cronies booted off the board, and who knows what can happen.
posted by Diablevert at 10:01 AM on September 12, 2011 [2 favorites]

It seems like the extent to which this situation is taxing your morale far exceeds the pleasure you'd gain from said sports equipment. Monitoring your neighbors for unrelated violations and reporting "a dozen" of them is likely not helping your piece of mind, and the amount of effort you'd have to exert to mount a committee ouster... oy.

I bet you and your kids would have a lot more fun, on the whole, if you forget such a thing as an HOA exists, and enjoy playing that game invented in Springfield, Massachusetts with them at a neighborhood park or school. Or take up some entirely different fun activity together that you can do in your backyard. Don't let the turkeys make you bitter people who are too busy being vengeful about petty crap to actually have fun with your kids like you really want to do.
posted by argonauta at 10:01 AM on September 12, 2011 [1 favorite]

*PEACE of mind, not piece. arghhhhhhh
posted by argonauta at 10:02 AM on September 12, 2011

HOAs are a tool of the devil.

What state do you live in? That makes a difference in terms of how devilish they can be.

The NYTimes has had articles about truly horrible abuses of power committed by HOAs, all within the scope of the law. This included things like seizing houses because of a few thousand dollars of overdue association payments.

I wouldn't mess with an HOA in any way without first understanding the legal landscape in your state. It's not worth losing your home over a basketball hoop.

(Sorry, no time to link to the NYTimes articles. Maybe later.)
posted by alms at 10:05 AM on September 12, 2011

On the one hand, this sounds like the old Soviet line: "we pretend to work, and our bosses pretend to pay us." On the other hand, you've already established yourself as someone who intervenes in this arrangement, and so it will be difficult to pretend that you're oblivious to the status quo -- and as others have said, HOAs can concentrate a lot of power (and zero accountability) in an itty bitty space, so tread with extreme caution.
posted by holgate at 10:09 AM on September 12, 2011

On the one hand, this sounds like the old Soviet line: "we pretend to work, and our bosses pretend to pay us."

The above quote made me think to myself: How did things in Soviet Russia get done? Then I remembered.

I think you need to consider perspective here. You have this HOA board that doesn't want to work with you. Your perspective right now is on how you can force them to do what you want via legal means, and this is only going to cause headaches and strife. Otherwise you'd have to get rid of the board, which again is a pain in the rear.

Both of these options cost money and make for problems. Maybe consider spending your time and money on positive changes. Invite a few over for dinner, get peachy with your HOA board. Grease their palms with something if you have to. You only need to butter up to half of them plus one. And after you've made them happy and got your hoop installed, you have the HOA on your side instead of against.

I'm not suggesting you bribe them or help their racket. But sometimes you gotta pay the cost of doing business.
posted by Mister Fabulous at 10:18 AM on September 12, 2011

Put up a portable/movable hoop AND work to get the board changed so you can put up a permanent one.
posted by seanmpuckett at 10:18 AM on September 12, 2011 [5 favorites]

Since a portable basketball hoop (the one where you put water/sand/whatever at the base to keep it up) is not a permanent modification to the property, unless your bylaws say "any form of basketball hoop" I would say that it's okay to put up the hoop and ignore any requests from the HOA.
posted by unexpected at 10:26 AM on September 12, 2011

Just wanted to come in and point something out: basketballs make noise. Even if you keep to normal daytime hours, retired folks who are at home all day will have to listen to the bounce...bounce...bounce all day long. Landscaping issues, on the other hand, make no noise at all. It is a lot easier to turn your head and look away from bad landscaping than it is to block out an incessant, repetitive noise. So there is no parity between the types of concerns, and I would not assume they are singling you out for other reasons, when the sound vs no sound issue is a very distinct and appropriate line between the two types of violations. Try really hard not to get worked up about this being something personal, because it likely isn't -- sound is a much, much worse environmental pollutant than most folks (generating the noise) realize.

So yes, proceed with attempting to get other folks on board, to get yourself on the board. Just remember that you will have a choice to make: either you start enforcing all the rules (causing those people with existing violations to endure expense and likely vote you out next round for an arguably more valid reason than you have for getting the current folks out), or you start enforcing none of the rules (and good luck when someone does something you don't like), or you keep on enforcing the rules selectively like the current board. Once rules are enforced selectively (as with the current board) there really isn't a way to go back to enforcing them more without pissing off a lot of people. Make sure that's really the direction you want to take before you take it.

Meanwhile, do your research. Figure out what powers the HOA does have, and whether you can put up a portable unit without breaking the rules. Ultimately, you made a choice to live somewhere governed by a HOA, so you have to live within those boundaries, but that doesn't mean you can't or shouldn't figure out exactly where those boundaries are, and whether stepping over them earns you a slap on the wrist or a big time out.
posted by davejay at 10:31 AM on September 12, 2011 [9 favorites]

You need to infiltrate the board. Work on getting inside. Change comes from within.

In all seriousness, a few of my good friends are on our HOA board. And dang, they get everything approved. Actually, do they even submit it for approval if they're the ones ultimately approving it anyway? And when the neighborhood gets inspections - they seem to breeze right by the homes owned by people on the board.

Also, (and I'm not suggesting this - just mentioning it), I've heard that a lot of people's philosophy regarding changes - they make the change (within reason) and ask for permission later (if questioned about the change).
posted by Sassyfras at 10:34 AM on September 12, 2011 [1 favorite]

@davejay-- I kind of see your perspective about the noise. Don't agree with it, though. In the end, even with noise, people decide what's acceptable to them...basketballs bad...landscapers with their mowers and blowers at 8 AM good.

And FWIW, the objections were all visual. They didn't want to "see it from the road". One suggestion from a committee member was to raze the landscaping in my backyard and pour a concrete slab in my backyard and erect a goal, so he didn't have to see it. Kindly understand, the landscaping/visual concerns in the rest of the neighborhood are not trivial (massive boulders placed immediately adjacent to road, parking of commercial vehicles in driveways, scorched earth removal of all vegetation on property [trees/shrubs/etc..] and replacement with crushed gravel because homeowner feared vegetation harbored snakes)
posted by teg4rvn at 11:01 AM on September 12, 2011

Idea one: Does anyone in your family qualify as a minority? You might make a case that you feel you are being discriminated against for that reason, and scare the old folks on the HOA into being a bit more lenient on the basketball hoop.

Idea two: You could mention to the HOA that you've decided on a portable hoop and what a shame it is because your original intention of putting up a permanent hoop was to keep from inconveniencing everyone else.

I'll give an example you can use to support that argument: Our neighbors across the street have a portable hoop which stands on a grass easement on the side of the road. The base of the hoop intrudes onto the road a little bit, so when we back up out of our driveway, we have to be careful not to back into the hoop. Also, since the kids are out in the street when they are playing basketball, not only do we have to watch out for them as we back out, but anyone going down the street has to as well, and the kids have to stop playing and move out of the way of the cars. This is not a problem for us; the kids are cool and we like having the family there. But it arguably is more of an inconvenience to the community than a permanent hoop over one homeowner's garage, where all the kids could just play b-ball in the driveway.

You might mention that you didn't want kids playing in the street where they might get hit by cars, or running into other people's lawns to chase after a basketball, or blocking traffic and maybe hitting cars with a basketball, so you wanted to put up one permanent hoop at your house, but you respect their decision and will put the portable hoop out in the road instead so all the kids in the neighborhood have access to it. You're sure someone will move it out of the way when they're not using it...
posted by misha at 11:32 AM on September 12, 2011

That the objections were all visual is surprising. And interesting. Did they object in writing to that effect? Perhaps in the meeting minutes? Find out. If so, a portable hoop or a removable hoop become much, much more possible...and it also does open up the possibility of some kind of discrimination, as a hung hoop (over a garage door) is very unobtrusive compared to, say, a boulder. Or are we talking about a new post-hung hoop, presumably metallic?

Anyhoo, if they truly are taking the visual angle rather than the noise, get that in writing by whatever means you can, as it might help make your case -- if you present plans that address the visual concern but leave it in the front, and they come back with "oh, well, no, now we have OTHER concerns" it will illustrate the pattern.
posted by davejay at 11:36 AM on September 12, 2011

Also, if you are considering putting it in your backyard - still check with your CCRs because our CCRs state that you can't have anything in the backyard that you can see over the fence/wall. I only say that if you're trying to be sticklers with the rules. Like I said, our CCRs stated that but we still have a trampoline (clearly seen from the street) and an umbrella-style clothesline. But we're rebels like that.
posted by Sassyfras at 11:45 AM on September 12, 2011

I'm sorry, I just had another thought. Are you friendly with your neighbors? The neighbors immediately next to you and possibly the ones across the street? If so, maybe you could write up something that they would sign saying that they wouldn't mind one bit if you had a hoop up. Then present that. It's something to do, not sure if it would work, but if the board saw that the neighbors were amenable to the hoop that they'd be more lenient?
posted by Sassyfras at 11:47 AM on September 12, 2011

@misha et al. The request was for a portable goal. We had no intentions, though, of pulling it in and out of our driveway every single time kids wanted to use it; portables are just cheaper. Part of our strategy to get a vote was to use the safety issue as you mentioned. Additionally our state allows children to play in the street and to allow "Children at Play" signs for added protection, notwithstanding any HOA rules.

@davejay Yes I have it in writing! as I do for the suggestions to concrete over my backyard to put the goal there. We're planning on a portable goal, metallic.
posted by teg4rvn at 11:49 AM on September 12, 2011

When I worked nights a local hoop was the bane of my existence. Mowing was not as bad as it was usually only about 15-30 minutes, but the hoop could have kids playing all day starting early. Mowing is also generally more of a hum/buzz and a ball bouncing is random thuds and that makes it so much worse somehow. If your neighbors all also have children and none are night shift workers then you're probably okay though.
posted by meepmeow at 12:13 PM on September 12, 2011

"A dozen" of 25 homes have obvious, blatent violations that are ignored? How the heck does the board justify 50% of the homes doing that?!? Sheesh.

I'd say getting new people on that board is the #1 goal; speaking as a condo owner, it seems like the longer someone is on a HOA board, the more they think they're always going to be the final arbiters of anything (we just got rid of a couple of those types, but it was a nasty fight). Make sure your 'reform' group is united: united in its goals, and united in its slate of candidates --- you do NOT want to split your votes, because that lack of a united, organized and cohesive opposition is how the oldtimers have remained in power. Maybe, but only AFTER you've thrown the (old) bums out and got new people in, consider making a new rule about term limits.
posted by easily confused at 12:21 PM on September 12, 2011 [1 favorite]

As you contemplate influencing change, keep in mind the distinction between CC&Rs and By-Laws. The former are the rules that govern what can/can't be done in the neighborhood. There is typically a high threshold (often 75% of the "members") required for voting on amendments to the CC&Rs. This doesn't mean that 75% must approve of the change; only that 75% must be voting. A majority vote is usually sufficient. The theory is that if the HOA is going to implement changes that will impact one's use of one's private property, those changes must be considered by a minimum number of members.

By-Laws, on the other hand, govern how the Board is elected. By-Laws may have a different threshold for change. By-Laws should also include language about committees, their appointment, their terms, etc.

The time for action is at your Annual Meeting. Read the By-Laws to find out when that is, and what the advance notice time is for agenda items to be submitted. Also, remember that most CC&Rs will include a provision for "proxy" voting. This means that you don't have to get all your neighbors to show up at the Annual Meeting. You can go door-to-door and solicit their proxies. If you do, word the proxy to indicate specifically what vote (yes or no) the grantor is expecting you to vote on their behalf. Include the grantor's name and address, have them sign and date. The proxy form should also indicate that the proxy expires at the close of the Annual Meeting.
posted by John Borrowman at 12:56 PM on September 12, 2011 [1 favorite]

I agree with using the Annual Meeting as the forum for making changes. The HOA Board only becomes tyrannical if people don't challenge them openly, and with carefully crafted arguments. I'm a new condo owner, and it's been a great education for me to be on the HOA Board--lots of inside agendas being pursued. You can and should mess with the Board--openly and with the support of the majority!
posted by feste at 1:51 PM on September 12, 2011