WHAT YOUR HOMEOWNERS ASSOCIATIONS CAN AND CAN NOT DO
Have you ever heard the statement: When you marry someone you also marry the family? In a way, when you buy a house, you also buy the problems with the homeowners association. Home owners association have two edges, they can be a powerful tool for homeowners to preserve the value of their properties, or...they can be a nightmare.
I bought my second home about 3 years ago. I live in a nice, quiet neighborhood surrounded by families, where only the men work and the women stay home. I am not that lucky, my husband abandoned us three years ago, and I am the only income in my household. Me and my 16 year old learned to live within a very tide budget, because my ex-husband does not pay child support either.
We take care of our yard, the best we can. However, when we moved here, we didn't notice the bad quality of the land in this subdivision. Weed grows overnight everywhere, and it is so strong that even when one of my neighbors covered his yard with plastic one time (out of desperation I guess) the weed grew right through the plastic! The grass won't grow regardless the effort and the chemicals you use to help it grow. Nothing seems to work to correct this problem!
A couple of years ago, I received my first letter from the HOA, and I felt like some kind of criminal. Whoever wrote the letter threatened me with fees and penalties, if I didn't do "something" with my yard. According to the letter, I was obligated to make my yard look attractive to the eyes of potential buyers for the other units being built in the subdivision.
My first reaction was complete panic, especially when I read about the fees and penalties. Living in a tide budget, I couldn' t afford any additional expenses (like sod) to keep my yard "attractive", and nevertheless to pay the fees mentioned on the letter. The following week, me and my son were on our hands and knees on the yard, trying to plant some flowers. My son cut the grass, and we spread some mulch around the trees. We thought we had accomplished a wonderful job!
Or so we thought, because a week later another letter arrived this time even nastier than the first one. "We noticed you left the garbage can outside overnight, even when the garbage was picked up yesterday", and then they proceeded to warn me again about possible fees, if this violation was not corrected immediately. At this point I felt targeted, was anyone just watching my house 24/7 to catch me on something?
The following month I receive a third letter in reference to my yard again. This time they stated that due to non compliance to the first letter, I would be penalized 100 dollars, for every day the violation was not corrected. At this point I was in tears, and grabbed the phone to call the HOA. As usual, the answering machine picked up. A sweet old lady's voice, advised me to leave a message, and said at the very end "God bless you". I thought that was kind of sarcastic, taking in consideration the way they were constantly bullying me.
I left a very short but firm message, I said: "I would correct the problem the best I can" and I added that I couldn't pay any fees, "I am going through hardship, and what you are doing is harassing me, if this continues I will get a lawyer. And by the way,,, God bless you too!" I concluded.
A complete silence followed this message for a month or two. No more letters and no phone calls either. Until one afternoon, when while checking my mail box, I found an envelope from HOA. I couldn't believe my eyes! They had placed a lien on my property for unpaid fees. The fees were 2,500 dollars! Were they out of their mind? The notice of lien was attached to the letter, advising that if the fees were not paid accordingly, they could start foreclosure procedures on my home!
This time, I contacted a lawyer who advised me that the HOA could, indeed, enforced the statement on the letter. It was a “free consultation”, so I couldn't get any more information on how to proceed with this problem, unless I paid 150 dollars per hour for legal advise.
Overwhelmed, I decided that the best way to handle it, was to go in person to the HOA, and try to straight out this problem once and for all. As I suspected, an old lady was the only one in the office, and when I told her who I was, her smile just erased completely off her wrinkled face: “So, how can help you today?” She asked.
I started telling her about my hardship. I requested for the penalties to be abated, and also for the lien to be removed. Her eyes got bigger behind her thick glasses, and with a big old smile she said: “Not possible”. By the time I got home, I have decided I was going to fight back even if I had to pay an attorney.
I stayed awake all night searching for information on the internet. I found out that fighting an HOA was more complicated than I had thought. I read somewhere, for example, that Home Owners Association are corporations, which means they are protected against law suits. Literally, it read: “Associations provide services, regulate activities, levy assessments, and may, as delegated by the states legislature, impose fines. Unlike a municipal government, they are not subject to the constitutional constraints that public government must abide by. A homeowners' association can enforce its actions through the threat and levying of fines, and private legal action under civil law” (http://en.wikipedia.org/wiki/Homeowner_association)
In other words, I was pretty much helpless on what they wanted to do to me. I was on my own, and with no money to pay the fees.
WHAT TO DO
Despite all my efforts to legally fight the HOA decision, my problem remained the same for 4 more months. Then, I realized that the only possible way to solve this situation, was to appeal directly to them through the Association's Grievance Committee. I prepared my own case with the allegation that I was going through hardship, and that I wasn't the only member of that community suffering the same problem with the lawn. I took pictures from different houses which lawns were as pitiful as mine, and I even called one of those lawn services companies, to do a free analysis of the dirt on my yard. By the time I got the results of the analysis, and put all my paperwork together, I received another letter from the HOA. The letter stated that my fees had increased due to late payment. However, there was no more threatening of foreclosure.
I found out that as long as I was still owing a mortgage to the bank, who was the first lien in my property, they could not overlap their right to foreclosure. In other words, the property was still owned by the bank, so they could not take what was not mine yet. Feeling a little bit better about the whole situation, I made an appointment with the grievance committee to appeal my case. They took 2 months to respond, only to tell me that: “Unfortunately, they were not able to reconsider the decision, and they suggested for me to pay the fees as soon as possible, to avoid future additional penalties”.
Today, 2 years later, I wish I would have had better legal advise about the whole situation. After I had to agree to make monthly payments for 2 years to comply with the fees, I found out that the HOA did not have the right to force me to place sod and flowers on my yard. They also did not have the right to impose fees based on an irrelevant request, and therefore they did not have the right either, to put a lien on my property. I could have sued them back then, but unfortunately I could not afford an attorney. A word of advise? Invest in one if you ever have this problem. There is a 50/50 chance that you might win the case, and if you do, then you can charge the HOA with the court and attorney fees as well, just like they do. Don't let your HOA bully you, they are supposed to work for you, not the other way. Make sure, you know your rights as a homeowner, and DO NOT let them intimidate you!
Remember, they have the time you don't, to write letter after letter to you, but that doesn't necessary mean, that what they say on the letters is legal. And if you are a future home buyer, please read carefully the part of the HOA in your documents before you sign anything, you might be buying a house, but in reality, the HOA will rule what you can, and cannot do with your own property.