Defeat your homeowners association

First, this article is written from the point of view 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 the United States today, there is usually a mandatory membership in a homeowners association, known as an “HOA.” These organizations are essentially mini-governments that possess the power to make and enforce laws, including the right to foreclose on a family’s home, townhouse, or condo.

The original intention in the creation of the HOA provided for an active participation of all members; a tight-knit community where community members dealt with common issues through the HOA offices.

Reality is nothing like vision.

Today, in most cases, an HOA is a very small number of people who actively hold the authority of the HOA in their hands, and their hands alone. Typically, these circumstances are caused by a lack of participation by the majority of the HOA members.

The lack of member participation creates a certain logic for the Board of Directors, which interprets the disinterest of the other members as the reason why they should keep the authority of the HOA to themselves. The community is divided between those who control the Board of Directors and everyone else.

For everyone else, an HOA is usually not easy to deal with. They wield the authority to foreclose on homes, impose large fines, and often control aspects of community members’ lives that typical Americans believe are a cherished private right of homeowners, such as what your children can do while playing in your own backyard.

Homeowners often find themselves in a competition with their HOA over these rights. Can I park my car in my driveway? No, the HOA says because we, a few active members, passed a law that says you can’t park a car in your own driveway unless you use it every day.

Can my kids play basketball in our own backyard? No, says the HOA, because we, a few active members, passed a law that says no basketball courts that can be seen from the street. And by the way, you are not allowed to cover that open fence to limit our visibility in your backyard because we, a few active members, have passed a law that says we have the right to see in your backyard.

Can I tint my crystals? No, says the HOA, because… Well, you get the picture.

Now the part you have been reading to find. How do you beat your HOA?

First, you need to make sure you continue to pay your HOA owed. Most homeowners fighting with their HOA over issues like a rule restricting backyard activities, use of their own driveway and garage, and denial of their planned home improvement projects , they often get angry and stop paying.

This is a mistake. Pay what belongs to you. However, you can usually skip paying those fees and fines. In California, an HOA cannot foreclose on your home based on accrued late fees, penalties, and other expenses such as ‘cost to collect’ late fees and unpaid penalties.

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. However, the resulting judgment is much more difficult to use to foreclose on your home because it does not take precedence over existing liens, meaning the HOA would have to pay off your mortgage to get your home using a court judgment. (In California, the moment you lose a lawsuit like this, go to the State Bar Association and demand Fee Mediation – HOA lawyers charge you like they are first class lawyers, but they charge their clients like if they were freshmen).

But let’s not let it get that far, shall we? Here are some basic rules to live by when it comes to your HOA.

HOAs typically do not have a duly elected Board of Directors. As soon as you get that annoying letter telling you to stop your kids from playing in the backyard, send a letter back requesting a copy of all Government Documents.

Hopefully the HOA will ignore or deny this request.

They are not allowed to deny or ignore a request for copies of Government Documents.

Get a copy of all your Governing Documents and read them to see what constitutes a duly elected Board of Directors. In those communities where membership participation has been limited to the few who want to serve on the Board, a “quorum” to properly elect the Board has generally never been achieved.

The Board, therefore, is usually in session by default.

Default Boards have a limited scope of their authority, and in some cases no authority at all.

In all your correspondence, constantly remind the Board that they were not duly elected.

Follow these basic steps;

1. Request a ‘meeting and conference’ with a Board member to discuss the issues. The HOA cannot deny your request to meet and consult. Record the meeting on video.

2. Request a hearing before the Board. Record the meeting on video.

3. Appeal the Board’s decision. Record the appeal hearing on video.

4. Request Mediation after the Board confirms its previous decision on the Appeal.

HOA board members are generally not very knowledgeable about the laws that govern the operation of an HOA. many will be familiar with the relevant parts of foreclosure law and will of course know the HOA rules and regulations by heart.

However, I have found that the Board of Directors is often unfamiliar with the requirement to meet and consult in good faith. Therefore, it is common for the member of the Board of Directors who appears to meet and deliberate, to meet but not deliberate. There is a good faith requirement that makes inappropriate the type of responses that the typical HOA Board member will provide in response to her questions.

For example; You have received a letter telling you that you need to move your 1966 Ford Mustang out of your driveway because it is not driven every day. Well, you say, “what proof do you have that he doesn’t drive every day?”

“We have an anonymous tip from another owner,” the HOA Board member replies.

“Okay, you had a complaint. But what proof do you have that the Mustang is not being 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 if the La complaint was a fact or mere opinion.So what proof do you have?

There is a good chance that the “complaining member” is none other than the very Board of Directors who simply discussed your Mustang at their last meeting. So there is no proof.

Write a summary of the meeting and conference. State that the Director was not aware of the infringement, therefore there is no infringement.

When the HOA sends you their next letter, usually a threat to move the Mustang or face heavy fines, you send a letter denying any violation exists. Remind them that they were not chosen correctly and that the outcome of the meeting and conference was favorable to you, not the HOA.

The HOA is supposed to schedule a hearing presenting evidence of your violation and then decide on the evidence and testimony provided at the hearing. Be sure to demand such a hearing and be sure to attend. It is a good idea to record the meeting on video.

It is not surprising that the HOA finds in your favor, even if they have evidence to show that there was no violation, or if they had no evidence to show that there was a violation.

Request an appeal. Be sure to attend, and yes, record it on video. At the appeal hearing, point out that the Board members were not properly chosen and did not have facts to support their earlier decision.

When the Board confirms its previous ruling, it will require mediation.

In the mediation, tell the mediator that the Board was not properly elected, did not meet and consult in good faith, held a disciplinary hearing without any evidence that there was a violation, ruled against you without any evidence that there was a violation, and upheld its decision despite the lack of evidence and/or evidence to the contrary.

Mediators will only want to split the issue in two; if you have been fined $1000, you will be encouraged to offer $500.

Denied.

Your next step is the most crucial. The HOA will expect you to pay, or in the most unlikely situation, file an action in Superior Court to enforce the Governing Documents.

Instead, you file what is called an “Injunction Order.” This is the appropriate place to appeal the Board’s decision.

While this will cost you some legal fees, it is the winning move. HOAs and their attorneys are generally unfamiliar with this particular judicial option and will be completely out of their hands when faced with an injunction.

However, the Deed Court will entertain you because you are appealing to an administrative body that has the obligation to accept and decide according to the evidence and testimony presented. And, if they fail to find based on the evidence, they can be overturned by the next higher court. In California, the next higher court above an HOA appeal hearing is the Superior Court editorial judge.

If you have carefully compiled the evidence listed above, it will most likely prevail. Fines will be reversed, late fees, etc. will be set aside, and the HOA will pay your attorney.

Thereafter, the HOA is likely to turn a blind eye to your Mustang, or your son’s backyard basketball court, and look for easier victims.