DGambler
08-24-2012, 02:57 PM
Have you ever gotten into a disagreement with your HOA? HOA’s are tyranny at home and are an integral part of the police state. Run by moral people, they can do good, run by amoral people, they are the tip of the spear for the police state. In different states, there is documented proof of collusion between HOA Boards, management companies, lawyers, and judges to profit on the foreclosure of homes in covenanted communities. The worst states, currently, are California, Arizona, Texas, and Florida.
If you have never been involved in a HOA dispute, you might not realize what you have given away if you live in a covenanted community. Because you have signed a legal contract with a corporation (usually non-profit), you have signed away all of your constitutionally protected property rights, as any dispute is now a contract dispute. If you live in one of these communities, you are living in a private government with no checks and balances. Most homeowners are not aware that they are one Board election away from disaster and are in reality living in a tin pot dictatorship.
Some major issues with HOAs:
NO due process, the Boards can issue a violation against a homeowner and be the one that settles the dispute
Most boards have a lawyer on retainer that they pay for with homeowner yearly dues; if you get in a legal dispute, they are using your money to fight against you and can usually get you to pay any additional legal fees if you fail in court
Covenants are design with the HOA in mind and provide little or no homeowner recourse
Boards, because you are living in a non-profit corporation, can meet in executive session, thus can legislate and plot in private
Covenants are usually drafted by a lawyer and are usually written with excessive obfuscatory technical jargon
Covenants do not specify penalties against board members, managers and lawyers who violate the Covenants
Covenants do not give homeowners the right for access to the financial books and records of the association
When buying a home, the Covenants are presented, but the true intent of them are not stated. If you have never been in a HOA dispute, you do not realize what you are giving away
Association elections can be rigged and the vote count can be done in private
There are usually no term limits for board members
Currently management companies are not bonded in favor of the homeowners
Audits are not mandated, and if they happen, are usually perfunctory and meaningless
Boards can use non-judicial foreclosure to collect delinquent assessments; there are stories in California that Boards have foreclosed for as little as $400 in fees
Currently, Boards can change rules, restrict enjoyment of common areas, and force desired behavior with fines (even if the desired behavior is not listed in the Covenants)
As I live in Georgia, I am most familiar with Georgia law. The Georgia Property Owners Association Act (OCGA 44-3-220 through OCGA 44-3-235) governs Georgia HOAs. Most homeowners are unaware of this act and their covenants merely reference the act, it is seven pages of additional law that govern their home that they are unaware of even exist. As an example, Title 44, Chapter 3, Section 232, Subsection C talks about the right of the Association to foreclose on homes:
OCGA 44-3-232-C (http://www.nhhoa.org/documents/GA_POA_44-3-220.pdf)
Not less than ten days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the lot owner both at the address of the lot and at any other address or addresses which the lot owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property. The notice shall specify the amount of the assessments then due and payable together with authorized late charges and interest accrued thereon. Unless prohibited by the instrument, the association shall have the power to bid on the lot at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, which first become due and payable more than three years prior to the date upon which the notice contemplated in this subsection is given or more than three years prior to the institution of an action therefore if an action is not instituted within 90 days after the giving of the notice.
The bolded/underlined section above gives a governing body the right to be the accuser, judge, and jury on your home. They can start foreclosing proceedings for “excessive” fines (as little as $2,500) and buy the house on the courthouse steps out from underneath you. While this might not be a wise move on a house that is underwater, homes that are paid off or close to being paid off would be ripe for the picking.
Furthermore, Covenants can contain some unsettling language as well, such as giving the Board power to decide if a family pet is a danger to the community and taking steps to remedy the situation (such as forcibly removing the pet and putting it down), egress into your home for any safety (as determined by the Board) situation.
I understand that it is difficult to get motivated on something as mundane as a HOA, but I urge everyone to fully read their covenants and by-laws, you might be surprised at what you actually “bought”.
My past neighborhood, that I moved out of due to a dispute with an evil board, tried to modify the covenants to submit us to the Georgia POA (http://www.nhhoa.org/documents/GA_POA_44-3-220.pdf) code and get the following in in the new covenants. Luckily, my wife and I were in dispute and were paying attention. We walked the streets, recruited street captains and knocked on every door of our 900+ home neighborhood. Here are some of the gems they were trying to get passed:
They tried to pass default approval of homeowner non-votes, the exact text was:
If the amendment is not approved or defeated by sufficient vote within 60 days of the amendment notice described above, then the Board may seek to obtain default approval from Owners under this subparagraph. In such case, the Board shall send default approval notice, by certified mail and to the address consistent with the notice provision of the Bylaws, to all Owners who have not returned consents or ballots on a proposed amendment within that 60-day period. Section 17b of the AMENDED AND RESTATED DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR a local neighborhood
In a neighborhood of 900+ homes, the ability to defeat any amendment would be difficult with this rule in place
They tried including language granting the Board or agents of the Board easement onto any lot, the exact text was:
There is hereby reserved to the Association and its designee, an easement and right, but not the obligation, to enter onto any Lot for emergency, life-safety, security and safety. The right may be exercised by the Association's Board of Directors, Officers, agents, employees, managers, and all police officers, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall be only during reasonable hours and after notice to the Owner or Occupant. This right of entry shall include the right of the Association to enter a Lot to cure any condition which may increase the possibility of a fire or other hazard in the event that an Owner fails or refuses to cure the condition upon request by the Board. No one exercising the easement and rights granted in this Paragraph shall be liable for trespass, damages, or in any other manner by virtue of exercising such rights. Section 15c of the AMENDED AND RESTATED DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR a local neighborhood
They tried including language granting extraordinary powers over pets, the exact text was:
If the Board determines that an Owner’s or Occupant’s pet endangers any person, the Board, in its discretion, may require that the pet be permanently removed from the Community upon seven days’ written notice to such Owner or Occupant…the Board may remove the pet and/or obtain a court order requiring the Owner or Occupant to do so. Notwithstanding the above, the Board may remove any pet without prior notice to the pet’s owner if, in the Board’s sole discretion, the pet presents an immediate danger to health or safety of any person in the Community. Section 9f of the AMENDED AND RESTATED DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR a local neighborhood
Other things included in the modified covenants that they were trying to pass included:
Including language granting the Board the power to approve/deny lease language between a homeowner and a potential renter and evict said renter for violations
Including language to grant the power of self-help (enforcing provisions) without notice to homeowner and charging homeowner for self-help
Prior to the Board attempting to submit our old neighborhood to the POA, there were already several examples of abuse of power
A neighbor had $500 of unpaid dues, she was unable to pay due to medical reasons, the Board and the HOA attorney assessed an additional $800 fees. The neighbor attempted to pay, because she was $200 short, the HOA garnished her wages, leaving her with $1 in her checking account and no way to pay for food for her children. The current amount she owes the HOA is over $5000. This all began with $500, the rest are penalties and attorneys fees.
A house was struck by lightening and partially destroyed. During the rehab of the house, the homeowners added on an additional room in the attic, because they didn’t seek prior approval, the Board extorted $5,000 from the homeowners by threatening a lawsuit
What to do? Call your state representative and urge them to pass a Homeowner Bill of Rights (https://www.google.com/search?q=homeowner+bill+of+rights) in your state.
If you live in GA, and I’m assuming other states are the similar, according to GA code Title 44, Chapter 5, Section 60, Subsection 2, you could work to terminate your Covenant. “...at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant…Such document shall be recorded…within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document”
If you have never been involved in a HOA dispute, you might not realize what you have given away if you live in a covenanted community. Because you have signed a legal contract with a corporation (usually non-profit), you have signed away all of your constitutionally protected property rights, as any dispute is now a contract dispute. If you live in one of these communities, you are living in a private government with no checks and balances. Most homeowners are not aware that they are one Board election away from disaster and are in reality living in a tin pot dictatorship.
Some major issues with HOAs:
NO due process, the Boards can issue a violation against a homeowner and be the one that settles the dispute
Most boards have a lawyer on retainer that they pay for with homeowner yearly dues; if you get in a legal dispute, they are using your money to fight against you and can usually get you to pay any additional legal fees if you fail in court
Covenants are design with the HOA in mind and provide little or no homeowner recourse
Boards, because you are living in a non-profit corporation, can meet in executive session, thus can legislate and plot in private
Covenants are usually drafted by a lawyer and are usually written with excessive obfuscatory technical jargon
Covenants do not specify penalties against board members, managers and lawyers who violate the Covenants
Covenants do not give homeowners the right for access to the financial books and records of the association
When buying a home, the Covenants are presented, but the true intent of them are not stated. If you have never been in a HOA dispute, you do not realize what you are giving away
Association elections can be rigged and the vote count can be done in private
There are usually no term limits for board members
Currently management companies are not bonded in favor of the homeowners
Audits are not mandated, and if they happen, are usually perfunctory and meaningless
Boards can use non-judicial foreclosure to collect delinquent assessments; there are stories in California that Boards have foreclosed for as little as $400 in fees
Currently, Boards can change rules, restrict enjoyment of common areas, and force desired behavior with fines (even if the desired behavior is not listed in the Covenants)
As I live in Georgia, I am most familiar with Georgia law. The Georgia Property Owners Association Act (OCGA 44-3-220 through OCGA 44-3-235) governs Georgia HOAs. Most homeowners are unaware of this act and their covenants merely reference the act, it is seven pages of additional law that govern their home that they are unaware of even exist. As an example, Title 44, Chapter 3, Section 232, Subsection C talks about the right of the Association to foreclose on homes:
OCGA 44-3-232-C (http://www.nhhoa.org/documents/GA_POA_44-3-220.pdf)
Not less than ten days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the lot owner both at the address of the lot and at any other address or addresses which the lot owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property. The notice shall specify the amount of the assessments then due and payable together with authorized late charges and interest accrued thereon. Unless prohibited by the instrument, the association shall have the power to bid on the lot at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, which first become due and payable more than three years prior to the date upon which the notice contemplated in this subsection is given or more than three years prior to the institution of an action therefore if an action is not instituted within 90 days after the giving of the notice.
The bolded/underlined section above gives a governing body the right to be the accuser, judge, and jury on your home. They can start foreclosing proceedings for “excessive” fines (as little as $2,500) and buy the house on the courthouse steps out from underneath you. While this might not be a wise move on a house that is underwater, homes that are paid off or close to being paid off would be ripe for the picking.
Furthermore, Covenants can contain some unsettling language as well, such as giving the Board power to decide if a family pet is a danger to the community and taking steps to remedy the situation (such as forcibly removing the pet and putting it down), egress into your home for any safety (as determined by the Board) situation.
I understand that it is difficult to get motivated on something as mundane as a HOA, but I urge everyone to fully read their covenants and by-laws, you might be surprised at what you actually “bought”.
My past neighborhood, that I moved out of due to a dispute with an evil board, tried to modify the covenants to submit us to the Georgia POA (http://www.nhhoa.org/documents/GA_POA_44-3-220.pdf) code and get the following in in the new covenants. Luckily, my wife and I were in dispute and were paying attention. We walked the streets, recruited street captains and knocked on every door of our 900+ home neighborhood. Here are some of the gems they were trying to get passed:
They tried to pass default approval of homeowner non-votes, the exact text was:
If the amendment is not approved or defeated by sufficient vote within 60 days of the amendment notice described above, then the Board may seek to obtain default approval from Owners under this subparagraph. In such case, the Board shall send default approval notice, by certified mail and to the address consistent with the notice provision of the Bylaws, to all Owners who have not returned consents or ballots on a proposed amendment within that 60-day period. Section 17b of the AMENDED AND RESTATED DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR a local neighborhood
In a neighborhood of 900+ homes, the ability to defeat any amendment would be difficult with this rule in place
They tried including language granting the Board or agents of the Board easement onto any lot, the exact text was:
There is hereby reserved to the Association and its designee, an easement and right, but not the obligation, to enter onto any Lot for emergency, life-safety, security and safety. The right may be exercised by the Association's Board of Directors, Officers, agents, employees, managers, and all police officers, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall be only during reasonable hours and after notice to the Owner or Occupant. This right of entry shall include the right of the Association to enter a Lot to cure any condition which may increase the possibility of a fire or other hazard in the event that an Owner fails or refuses to cure the condition upon request by the Board. No one exercising the easement and rights granted in this Paragraph shall be liable for trespass, damages, or in any other manner by virtue of exercising such rights. Section 15c of the AMENDED AND RESTATED DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR a local neighborhood
They tried including language granting extraordinary powers over pets, the exact text was:
If the Board determines that an Owner’s or Occupant’s pet endangers any person, the Board, in its discretion, may require that the pet be permanently removed from the Community upon seven days’ written notice to such Owner or Occupant…the Board may remove the pet and/or obtain a court order requiring the Owner or Occupant to do so. Notwithstanding the above, the Board may remove any pet without prior notice to the pet’s owner if, in the Board’s sole discretion, the pet presents an immediate danger to health or safety of any person in the Community. Section 9f of the AMENDED AND RESTATED DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR a local neighborhood
Other things included in the modified covenants that they were trying to pass included:
Including language granting the Board the power to approve/deny lease language between a homeowner and a potential renter and evict said renter for violations
Including language to grant the power of self-help (enforcing provisions) without notice to homeowner and charging homeowner for self-help
Prior to the Board attempting to submit our old neighborhood to the POA, there were already several examples of abuse of power
A neighbor had $500 of unpaid dues, she was unable to pay due to medical reasons, the Board and the HOA attorney assessed an additional $800 fees. The neighbor attempted to pay, because she was $200 short, the HOA garnished her wages, leaving her with $1 in her checking account and no way to pay for food for her children. The current amount she owes the HOA is over $5000. This all began with $500, the rest are penalties and attorneys fees.
A house was struck by lightening and partially destroyed. During the rehab of the house, the homeowners added on an additional room in the attic, because they didn’t seek prior approval, the Board extorted $5,000 from the homeowners by threatening a lawsuit
What to do? Call your state representative and urge them to pass a Homeowner Bill of Rights (https://www.google.com/search?q=homeowner+bill+of+rights) in your state.
If you live in GA, and I’m assuming other states are the similar, according to GA code Title 44, Chapter 5, Section 60, Subsection 2, you could work to terminate your Covenant. “...at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant…Such document shall be recorded…within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document”