I’ve Got a Bone to Pick With My Homeowners Association

Many of you have probably lived in a condominium or single family detached home that was governed by a Homeowners Association (HOA).

HOAs proliferated in this country beginning in the 1960s because residential developers wanted to get around county density laws. Without getting into the nitty-gritty details, let’s say a developer bought a 40 acre piece of property and wanted to build 80 homes on it. Due to density laws governing the county where the land was located, the developer may have been restricted to building only 50 homes. The creation of a Homeowners Association gave the developer the ability to circumvent the county regulations. If a new development agrees to be governed by a set of private rules and to forego certain county-provided services (street maintenance, garbage collection, and so on), then the developer could basically ignore county density laws and squeeze more homes into the property he owned.

They further proliferated in the 1970s after the passage of the Clean Water Act, which mandated that storm water in new developments be dealt with through planned detention. HOAs had to be formed to deal with the water runoff caused by the new development and had to be kept in place to maintain the detention areas after the development was completed.

Developers are wily fellows, though. Although the reason for the creation of HOAs were economic (in favor of the developer) and environmental, the developers sold the concept of HOAs to potential homeowners differently. They encouraged homeowners to get excited about HOAs because they would give the neighborhood the ability to control certain aspects of the appearance of the homes in the neighborhood, thereby helping to protect the value of their homes.

Developers could easily persuade potential homeowners to “buy into” the HOA by telling a horror story of the neighbor who works on junk cars in the driveway or the one that litters his lawn with pink flamingos. Or perhaps with a story of a neighbor who decides to paint all of her storm shutters in an electric lavender shade. Don’t let that happen to you, the developers say. Participate in this association and everybody will just get along and maintain their homes in a consistent and value-maintaining manner. Everybody will get along better. Trust us.

The HOAs form Boards of Directors that are put in place to “oversee” the running of the HOA. They also put contracts in place that are referred to generally as Covenants, Conditions, and Restrictions, or CCRs. Everyone that buys a home in a neighborhood or condo complex governed by an HOA must sign and agree to the CCRs as a condition of closing. You want to live here? You agree to our rules. Very simple.

Most people don’t bother to read these documents carefully. Why would they? They are so excited about their new home that they don’t take the time to read through all of the “legalese”.

But they should. Here are a few examples of CCRs that appear in many HOA documents:

  • Homeowners are not allowed to display flags of any kind on the exterior of their homes
  • Homeowners are not allowed to display signs in their yard, with the exception of “For Sale” signs specific to the marketing of their home, and only then when the signs are of a style approved of by the HOA
  • No significant modifications can be made to the exterior of your home unless they are specifically approved of by the HOA’s Architectural Committee

I could go on, but that’s a good sampling.

But, you say, a couple of those are unconstitutional! They restrict my right to free speech! Those must be illegal!

Think again. When you buy a home or condo in a subdivision of complex that is governed by an HOA, and you sign the CCRs, you give up some of those rights. Often you don’t even realize that you’ve given the rights up in the first place until you receive notice from your HOA that you are in violation and that you have X number of days to “cure” the infraction or face potential fines or other forms of “corrective action” that the HOA can take.

So, you say, these guys can’t take these rights away from me! I’ll sue these bastards or I’ll just ignore them. No court would uphold this kind of baloney.

Think again. HOA documents are generally “lawyered up” very well and because, once again, you agree to abide by them when you sign off on them when you buy the home in the first place, don’t bring a legal action against your HOA unless you are prepared to:

  1. Lose.
  2. Pay your own legal fees, those of the HOA, and all fines associated with your scurrilous behavior.

OK. With all of this as background, here is my personal situation.

I purchased my single family home about eight years ago. It’s in the Brookhaven area of Atlanta, and the subdivision is rather small, with only 13 total homes in it. I have been a “good neighbor” during this time, since I don’t dry my clothes on a clothesline (verboten), have an RV parked in front of my house (strictly disallowed), or have “I love Obama” signs in my yard.

I have never heard a thing from my neighbors, with the exception that several years ago I installed a stone path and lighting through my extensive garden that surrounds my house. It was done very tastefully (“Better Homes and Gardens” would have been proud of me). But I made the error of not consulting with the Architectural Committee before performing the work. As good luck (this time) would have it, the neighbors universally approved of the project and so I was given a mere “tut tut, shame on you” verbal rebuke and that was the end of that.

As time has passed, most everyone in the neighborhood has similarly been what could be classified as a “good citizen”. There hasn’t been much need to scrutinize the behavior of the owners too closely, since everyone has been doing what they ought to be doing.

For the most part, that is.

One of the owners in the neighborhood is, like me, a single man. He is not super keen on maintenance. It’s not like he’s let his house start falling down. Far from it. But he has a koi pond in the back of his house that no long has koi in it. This has been a problem because of mold, aroma, and the attraction of bugs. He’s also not been great about maintaining flower beds and this sort of thing.

Nothing major, but the HOA finally determined that enough was enough with this guy.

In an effort not to come across as practicing “selective enforcement” of the CCRs, the HOA formed a Covenant Oversight Team (“COT”) to review the exterior of everyone’s homes. The COT reported its findings to the HOA Board, and letters were sent out to all of the homeowners, letting them know what “issues” needed to be corrected.

My list was somewhat short. I was asked to repair and repaint my mailbox. No big deal. I was asked to pressure wash a portion of the curbing in front of my house. A bit of a nitpick, maybe, but still OK. I was even asked to “remove spider-web in the corner of window on the front of the house”. A nitpicker’s nitpick to be sure, but since it took me all of two seconds to remove with a broom, I decided to just live with it.

One thing stood out on the list, however.

The HOA said that my satellite dish was obtrusive and needed to be relocated or removed.

Now all of us have driven by the homes, particularly in rural areas, with large satellite dishes in the front yard. Or we have seen the person with an ugly looking dish on the front corner of a roof that detracts from what would otherwise be an attractive home.

In my case, my dish is mounted on the side of my home, adjacent to my HVAC units. It is far from obtrusive. In fact, it’s completely impossible to see the dish when standing in front of my house. I have a huge holly bush planted just to one side of my garage on the side of the house where the dish is. The bush completely obscures one’s view of the dish. It is possible to see the dish, but in order to do so, you have to walk well down to the front of my neighbor’s house so as to get a viewing angle sufficient to see the dish.

This is absurd, I thought.

I had no idea how right I was. It turns out that the FCC passed a little law in 1996 called the Telecommunications Act of 1996. The law was passed, in part, because over-zealous HOAs were telling condo and homeowners everywhere that they had to remove their dishes. It turns out that the communications industry is very powerful indeed and successfully got the law enacted because it prevented governmental or private agencies such as HOAs from restricting consumers’ rights to receive a television signal.

Not only that, but the law makes it extremely difficult for HOAs or similar groups to put any kind of restrictions on the placement of dishes unless they represent a safety concern or they somehow harm historically protected areas. Since dishes must be placed in such a manner as to allow a “clear view of the southern sky” in order to get a strong signal, HOAs cannot force homeowners to relocate them if the new location would result in a diminished signal. HOAs also cannot force homeowners to install expensive landscaping of any other expense that is greater than a nominal one to shield the dish from view.

Essentially, the result of the law is to chalk one up for the good guys, the homeowners.

I sent a letter to my HOA notifying them that I was going to address all of their “concerns” with the exception of the dish. I told them that if the association was real concerned over the appearance of the dish, I would happily consider any prospective landscaping that the HOA wanted to install–at their expense–so long as I had full approval rights over what was to be installed.

The HOA responded fairly quickly. They said that the neighborhood really wanted to “work with” me on the issue and that if only I would install the landscaping, everything would be fine.

I indicated that the FCC ruling prohibits the HOA from forcing me to incur that expense and I reiterated my willingness to do so at their expense. They declined.

I have subsequently sent two more messages to the HOA. One was a nice note that once again reiterated my position and that also included pictures of landscaping (from my local Hastings Garden Center) that I would happily approve of if they footed the bill for the installation. I received no response. The second message was sent just to the president of the HOA. I indicated I did not want to get into a contentious and protracted scuffle with the HOA, but that I was within my rights and if they were not able to see that the law, in this case, protects me, I would have no choice but to “hunker down”. Again, no response.

I should also mention that in addition to performing significant due diligence on this topic, I have also consulted with a good buddy of mine who also happens to be a real estate attorney. He has assured me my position is righteous.

So at this point, it would appear that “it’s ON”.

I don’t know why it is that some people, particularly ones that have been given some modicum of power, can’t see when they are licked and just give up the ship. You would think that these people could see that if this were a game of poker, I have a royal flush and I am showing them my hand before they are asked to call the bet or fold. But no.

A certain Mr. T-ism occurs to me. Something about pity.

7 Responses to “I’ve Got a Bone to Pick With My Homeowners Association”

  1. clipclop Says:

    “I’m going to float like a butterfly and sting like a bee.”

  2. Lee Roi Jordan Says:

    I think I may have previously mentioned that I’m an Alabama fan. As such, I don’t have a clue what you are talking about with a satellite dish attached to your house. I get some nice shade on my trailer from my dish in the summer, but if I stuck the trailer on it (or vice versa) it would not be good for anyone.

    That said, I think I can relate to your HOA situation, only we use different terms. In my county we call your HOA Board our county commissioners and your COT is called the sheriff’s office. We even have a counterpart to your attorney friend. The white guy that works down at the Racetrac knows some latin (things like ipso facto and e.g.). We were impressed so he’s now the county attorney when he’s not selling lottery tickets or fireworks.

    Anyway, we’ve got a guy like your pond fellow. Last month, a muskrat (it might have been a polecat – it’s hard to tell which it is when their dead bodies swell up) crawled into his pond and died. It smells so bad that nobody’s wanted to fish there since and the fool won’t wade in and toss out the body so the feral hogs can have at it. We were sitting in the county commission meeting complaining about having to find a new fishing hole when our county attorney came up with a great idea. We could kill two birds with one stone, ipso facto (none of us could figure out what that last part meant – maybe your attorney friend can tell you since it sounds like something a lawyer would say).

    Even though he works at a gas station, his plan was ingenious. Living on down past the pond guy, near the county line is the biggest, snivelling complainer in the whole county. He complains when it snows. He complains when it doesn’t snow. He complains when the grocer has ice cream and he complains when the ice cream is gone (our grocer likes ice cream so like Al Pacino in Scarface, not all of the product makes it all the way to the grocer’s freezer section). Anyways, our attorney says that we’ll just send out dead polecat letters to everyone in the county. The cleverness of the idea took a while to sink in. Another of the commissioners wondered what would happen when we all ignored our dead polecat letters. Then we all caught the joke. The snivelling complainer would not just ignore the groundless letter. He would first start to pace. Then he would break into a sweat and begin to look for ways out of his predicament. He would get his own legal advice (the barber has a certificate on his wall with some fancy writing so our guess was that he would go to him). In the end he may even call the governor or our congressman. By sending out letters to everyone, we could get rid of the dead polecat and get to enjoy watching the snivelling complainer’s torture.

    Anyhow, I imagine your situation is nothing like that. Keep diggin up those bones.

  3. deepsthboy Says:

    Lee Roi, it sounds like you live in a real nice area of the state. Too few Alabamians have local fishing holes so convenient to where they live. I hope you appreciate your good fortune.

    Regarding your “dead polecat letter”, I think the idea is ingenious. But there is no comparison to my personal situation. For the two to be analogous, it would pre-suppose that the members of my HOA Board are as connivingly devious and astute as you and your friends. That would not be the case.

    Sometimes a preemptive ass-whuppin’ is a necessary precaution.

  4. Lee Roi Jordan Says:

    Boner, I’m sorry your crowd does not know the difference between ipso facto and dipso fatso. If your board needs help with their snivelling complainer, our commission meets formally the second Tuesday each month and we meet informally at the barbershop every Thursday morning for checkers. If your attorney friend needs any more “of counsels” (at least ones that don’t constantly move from state to state so you can’t remember where to find them), our buddy at Racetrac only works weekends.

  5. deepsthboy Says:

    Your willingness to pitch in is duly noted and greatly appreciated. My HOA president called yesterday and was at least quasi-conciliatory. I suppose we shall see. It could be some good old fashioned southern-style “justice” is called for here.

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