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Beware The Associations - Part VI

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Contributed by: Jan Jackson on 5/19/2008

Boards of directors of homeowners associations (HOAs) have the power necessary to become "little dictators" because the entire HOA Industry will support them -- whether they are right (making lawful decisions and taking lawful actions within their HOAs) or wrong (making decisions and taking actions within their HOAs that may be contrary to the law). They can do that because no governmental group with the authority to stop them -- executive, legislative or judicial -- will do so.

So, when one buys into a housing development that is run by an HOA board of directors, one is almost assured of becoming a social and financial "slave" to that HOA's board for as long as they live there.

Can't a homeowner fight back, you ask? Sure, if homeowners like losing their shirts in many, if not most, of the lower courts which appear to be in collusion with the rest of the HOA industry.

Then what's a homeowner to do? Is their only choice to sell and move? Perhaps losing a lot of money in doing so? Yes, IF the homeowner can find a suitable house or condo that's not in an HOA -- which is next to impossible these days because most, if not all, state legislatures have mandated that all new housing developments will be run by (what turns out to be) lawless members of almost any HOA board of directors.

Then can't a person just buy a piece of land and build his own house on his own property? Yes, if a person can find land, anymore, that's not owned by a real estate agency or a developer or a building contractor who will conform (because they want to, ie, lots of big-time money in their pockets when they do) to their state's legislative mandate to incorporate that tract of land wherein an HOA board of directors will run it lawlessly.

So, what IS a homeowner to do about the terribly destructive (ecologically and financially) homeowners associations in this country today?

Well, homeowners can support, or actively work toward, abolishing homeowners associations all over this nation. The time appears to ripe, right now, to do that (go to the American Homeowners Resource Center (AHRC) at www.ahrc.com and read what's currently happening in the HOA industry (which includes news regarding Community Association Institute (CAI) lawyers-lobbyists and many prominent and not-so prominent public officials who give every indication of being corrupt to their very cores).

And Colorado appears to be part of that sordid national picture.

Jan

How Associations Are Governed

Homeowners' associations in California are governed by various California Civil Code sections, California Corporations Code sections, and their own governing documents, including the articles of incorporation, by-laws, and the declaration of CC&Rs. They are operated under a board of directors. Increasingly, homeowners pay dues for the association to be managed by property management companies. [fn35] These companies routinely restrict owners' rights to use their property as they desire. No license or certification is required of the people who manage the property management companies. [fn36]

Community associations are usually organized as nonprofit mutual benefit corporations with the powers and duties of such corporations. [fn37] Unless the governing documents state otherwise, the directors have authority that includes:

1) the powers granted to a non-profit mutual corporation, except as specified; and
2) standing to enforce governing documents and bring suit to recover damages to the common areas and separate interests.[fn38]

On January 1, 1986, the Davis-Stirling Common Interest Development Act became the primary governing law over homeowners' associations. The purpose of the Act was to consolidate all statutory law governing common interest developments into one area of the Civil Code, from section 1350 through 1376.[fn39]

The Davis-Stirling Common Interest Development Act contains an extensive definition of the terms in section 1351 of the California Civil Code.[fn40] " Common interest development" ("CID") encompasses four different types of developments: common interest subdivisions, condominiums, planned developments and stock cooperatives. Because condominiums and planned developments are more prevalent, the discussion in this article will be limited to them. [fn41]

The Davis-Stirling Act was the outgrowth of the California Assembly Select Committee on Common Interest Subdivisions, chaired by Assemblyman Larry Stirling (R-San Diego) during the 1983-1985 legislative session. It was co-authored by Assemblyman (now Governor) Gray Davis, signed into law in October 1985,[fn42] and became effective January 1, 1986.[fn43]

The Act gave homeowners' associations the standing to sue for CC&R enforcement, and the standing to sue individual owners for failure to maintain their units if damage attributed to a unit impacted on common areas or is "integrally related to the common area.[fn44]

The Act empowered associations with the right to defend and settle lawsuits as well as to be a party to arbitration and mediation.[fn45] It gave associations the power to levy regular and special assessments sufficient to perform their obligations under the governing documents.[fn46 ] It authorized associations to lien property for unpaid assessments and the right to buy and sell personal property.[fn47] The Act also authorized associations to obtain attorney fees and the costs of collecting assessments from homeowners.[fn48] Those costs include the amount in default, late charges, interest, and all reasonable costs of collection, including title company charges and attorney fees.[fn49] The association also has the right to claim prevailing party attorney fees and costs in an action to enforce the governing documents.[fn50]

The Act also provided authority for associations or owners of separate property interests to amend outdated CC&Rs through court intervention.[fn51]

(continued in Part VII)

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Jan Jackson

Florissant , CO

Jan Jackson has posted 471 stories and 37 comments since joining on 9/14/2005. Jan Jackson 's average story rating is 4.5.

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