Posted on 08/08/2004 7:12:27 PM PDT by marshmallow
CHULA VISTA, Calif. - As millions of Americans have moved into the nation's 260,000 privately run neighborhoods, they've been hit by rules on pets and door colors and hemmed by restraints on landscaping. If they're late with their dues to maintain common areas, sometimes for as little as $120, the associations, backed by a network of property managers and attorneys, can foreclose on their homes.
Cases like this have galvanized homeowners seeking to change the legal system governing what has become the fastest-growing neighborhood lifestyle in the country — neighborhoods run by private associations.
Despite a growing backlash, lawmakers throughout the nation have failed to make major changes. California, however, stands on the verge of banning foreclosure entirely in many instances, making nonjudicial foreclosure more difficult and rolling back the fee system that makes foreclosure lucrative to a small cadre of lawyers.
If approved this month by the Legislature and signed by Gov. Arnold Schwarzenegger (news - web sites), these changes will reshape how these neighborhoods work, especially how they collect their dues once residents get behind or don't pay.
Homeowner associations have boomed over the last three decades, largely because of fewer services provided by cash-strapped local governments and consumers who want rules to govern their neighbors' aesthetic tastes.
Like California, associations in Florida, Texas, Arizona and Nevada all have authority to ultimately collect their members' unpaid assessments by selling their homes. Combined, the five states have more than half the nation's supply of association-governed housing.
In Las Vegas, Judi Burns lost her $130,000 home when a judge upheld her association's March 2000 foreclosure sale over unpaid dues of $300. In Arizona, Evelyn Lyles nearly lost her home over $393 in unpaid monthly assessments. An anonymous donor paid when media accounts of the pending foreclosure described her battle with breast cancer.
Unlike municipal governments coping with late property tax payments, studies show that homeowners associations are quicker to seek foreclosure and for sums far less than the average late tax bill. Mortgage lenders also typically wait longer to foreclose and work harder to find alternatives, says Doug Duncan, chief economist of the Washington, D.C.-based Mortgage Bankers Association.
California lawmakers aim to rein in what critics call "foreclosure factories," law firms and collection agencies that earn $1,500 to $2,000 filing nonjudicial foreclosure proceedings against homeowners behind on dues.
"They go in there and find a resident who gets a little behind and hit him with an assessment, and then tack on thousands of dollars in attorneys' fees," said Evan McKenzie, an Illinois political science professor who wrote the 1994 book "Privatopia," a history of U.S. homeowners associations.
An unofficial survey of California's homeowners association lawyers released in June reported 19,450 foreclosure filings since 1999 in California and 145 homes sold for unpaid assessments.
Homeowners' association attorneys vigorously defend their practices and cast late-paying homeowners as the bigger threat to association life. Some say lawmakers are responding to a disgruntled 3 percent of homeowners.
But the California legislators is days away from passing legislation to throw out foreclosure entirely as a method for homeowners associations to collect debts under $2,500.
It's a bipartisan movement, motivated in part by the high-profile cases of Colburn and retirees Tom and Anita Radcliff, who for a late payment of $120 lost their $285,000 home in Calaveras County, the Sierra Nevada foothills setting for Mark Twain's celebrated Gold Rush jumping frog story.
Associations "need to look at other debt collection procedures before they go to these extreme measures," said Democratic state Sen. Denise Ducheny, the leading force in California behind curbing foreclosure powers.
Molly Foley-Healey of the Virginia-based Community Associations Institute, the national lobbying arm of private communities, called California's approach an anti-consumer bill masquerading as a benefit to consumers. She said homeowners will quit paying dues up to $2,500, forcing associations to punish other residents with higher dues to make up losses.
Nationally, CAI officials and homeowner activists are also watching, knowing California's reputation for change that often spreads to other states.
"If California succeeds in this, that's going to send shock waves across the country," says Marjorie Murray, lobbyist with the Congress of California Seniors, which sponsored the bill because many retirees live in private communities. Among its other supporters: the 36 million-member American Association of Retired People.
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Seems like a good cause. Some of these homeowner associations are out of control.
I don't know - I have mixed feelings about this. On the one hand, I don't like the control that these associations sometimes weild over their constituency. But on the other hand, people have chosen to live under these conditions and have agreed to them. What this law seeks to do is to circumvent the contract that people of sane mind knowingly entered.
And every one of those matters was comprehensively covered in the papers at closing.
If they didn't read them, CAVEAT EMPTOR.
If people are not under duress to pay their maintainance fees, many won't. Then the Association goes bankrupt and the water sewage and garbage pickup for everyone in the neighborhood stops.
If you buy in a controlled neighborhood, you do not have a clear title to do as you please. Just as when you buy in a city, the zoning board and local agencies have control of what you do. The difference is that your neighbor can't bribe the majority of members of the association to let him convert his place to a pig farm. He probably can bribe a city or county zoning board. That's what campaign contributions are all about.
SO9
These are essentially pseudo-governments and they ought to be treated as governments as far as the Bill of Rights is concerned.
We need a Forum just for people that want to sign away their Freedoms and those people that want to or simply must be Do Gooders or Nanny Cops and for the good of everybody can simply cook up more "Laws" like the seat belt law with catchy little slogans "Clickit or Ticket"
Just make everything illegal and let the Nanny Cops, Do Gooders and Home Owner Associations issue permits.
The entire middle market in most areas is PUD. Almost every new neighborhood is PUD. There is no almost no choice in the marketplace.
Where's the choice in that?
I'm a free marketeer, and I'm surprised these communiites are even constitutional, as they impose a perpetual burden on anyone who owns the property....AND any time they change the rules to adversely affect a property owner without compensation, it could be construed as a "taking" that is unconstitutional.
...Not to mention that I resent the little tyrants whose only ego boost in life is bullying a homeowner.
I know I'm not on solid legal ground, but PUDs absolutely suck.
Now THAT is the thought of the day.
Even though I don't smoke, and hate paying taxes, I would gladly spend whatever they are charging for cigarettes these days to burn "NAZI SLOGANEER" into the flesh of whoever coined the slogan "click it or ticket."
I believe in personal responsibility. Don't buy a condo if you can't afford to pay the dues!
Yup. Sanctity of contract is all well and good, but as the poster pointed out, these things waddle and quack like a government.
Where is personal responsiblity in this? It's just liek any other bill!
At the time of escrow you are given the CCRs ... the rules. If you don't agree to them, don't sign/ When you sign you are honor bound to live by them. It's like any other legal contract.
Then why sign the CCRs? When you sign you agree to abide by them. Sounds like backing out of a contract to me.
If this article is correct, it appears to be the first resort.
That aint right.
Sounds like a bad contract when someone with cancer and experiencing a bump in their revenue stream can have their house sold out from under them. Some other alternative must be available, but it won't be sought out by those making millions filling liens against tardy homeowners.(see: Greazy, quick-buck making lawyers)
Small claims court. It is a simple process and does the dinq's credit rating no good if he looses.
While I'm all for paying ones bill on-time - being able to foreclose on a home and ruining a persons credit for $300 is ridiculous.
They are free market.
There is no 'taking' as they are simply exercising a right granted them by the property owner in his Deed of Title.
The Constitution has nothing to do with it as that is a prohibition of a taking by the government.
They impose NOTHING on the property owner. The property owner voluntarily accepts these limitations on his title in exchange for services.
If you don't like it, find an isolated house in the country with no utility services and buy it.
So9
I live in one of the fastest growing areas in Florida (the fastest by the latest report I saw). Housing developments are going up like crazy (30k new homes over 5 years). Every single development has a homeowners association and most of the nicer developments that are around prior to this surge in growth also have associations.
Eventually any place worth living in my area will be under housing control. The neighborhood we live in that didn't have an association recently got one. Funny thing is, I have no idea how it happened since I did not, nor did any of my neighbors receive a chance to vote on, or speak out on this.
I'll put my Cigar out in his eye for you, will that work?
This is near and dear to my heart right now as I live in a 6 unit townhome. One owner is older and on a fixed income ... but we are all having to pick up the delinquent dues of a 30-something divoricee.
When you don't pay your bills, the full extent of the law should apply.
It's called personal responsibility. If people CHOOSE to enter into the contract then they must live up to it.
The fact that a contract can be written in such a way as to restrict a property owner (yes, even volunatarily) is IMHO against public policy and unconstitutional on its face.
And as another poster pointed out, once you've moved in, the HOA might as well be a government and perhaps should be treated as such. If HOAs were treated as governments, any property restrictions they enact beyond those in place at the time of sale without compensating the homeowner would ineed be takings.
And your final sentence is the whole point. It's what tyrannical governments always say to their uppity people.
I shouldn't have to sign away a portion of my property rights to live in a decent neighborhood (in fact, I would argue that the constitution prevents me from doing so). Currently, there is very little real choice. In some parts of the country, there is absolutely NONE.
I know the logic isn't all there, but again I'm surprised HOAs with foreclosure power were even allowed to come into existence. But then agian, I'm also surprised that special tax abatements for companies that build new factories or even just keep employees where they are are allowed, as they represent takings from all other property owners who have to shoulder the tax burden shirked by the tax-abated company. To me, the unconstitutionality of tax abatements is a slam dunk.
You are on a roll tonight.
But isn't it also government control when the government takes control over the HOA's or outlaws gated communities? Not that I would ever live in one or sign such a contract --- but it seems others should have that right if they want it.
No one is forcing you to sign. If you sign, then you have agreed to the terms. And there is nowhere in this country where you are
FORCED to buy into a home owners assocation.
No one forces you --- you can buy a home outside a gated community --- where there's no one telling people when to cut their grass or pay their dues. You can buy your home where you can have 3 junk cars in your yard or hang your laundry out whereever you want it. You can have freedom still. I do.
Don't sign the CCRs if you can't or won't pay. It is a contract.
What do you call a decent neighborhood? If you want to live in a neighborhood where every one keeps their lawns a certain way, everyone has grass, -- you have to force that because otherwise you might have people that let weeds grow instead of grass or feel like keeping some old cars around.
Not to mention that there are some people who don't mind signing a contract agreeing to the CCRs and then break them. Their word is worthless.
In terms of new construction, we're almost there now. Is some parts of CA, you can't buy a new home that isn't PUD.
At the current pace, the only places that aren't PUDs will be inner-city places where no one in their right mind would live if they had a choice.,
And this leads to an interesting point: The HOAs are effectively controlled by the builder/developer, who by imposing the PUD never really relinquished control of the property. Our area has only a few major builder/developers, who IMHO are indirectly turning into the landed aristocrats of old.
When every desirable place has a PUD imposed on it, a very few will effectively control the many.
It seems to me about the same as joining a convent or monastery and giving up your rights to own anything --- the government should allow you to do that if you chose. The government should not take away our free associations rights.
You should hook this gal up with a guy who can help her pay her dues. That's what us 'guys' do so well. :^)
Great points. You are so on fire tonight it's scary.
And the ninnies who run HOAs, who are essentially politicians who weren't good enough to get elected in the city (so they moved to a place where they could get their jollies pushing people around), will jump on the chance to ban firearms. They're just waiting for the next Dem president to get elected to make it happen.
Don't sign any contract you do not intend to abide by. It sounds as though you have no qualms about signing with no intent to abide by the terms.
From what I've read, this group and their enormous stable of attorneys are the worst culprits. I have some personal experience with them, also. I bought into a community association years ago after carefully assessing the very moderate and agreeable types of rules, voting procedures, etc. Then the board linked with this CAI.
Within two years the board, management and employees have become very clique-ish and the rules have grown oppressive. We have many part-timers with weekend homes here and it is next to impossible to contact them and rally neighbors to do something about the board or elections. But those homeowners DO get the community newspaper mailed to them, a newspaper run by the board and crammed with their slanted, self-serving propaganda.
Not realistic. In the meantime we have problem.
If enough people refuse to live in a gated community then what you say can't happen. Here it seems a lot of people are lining up to get into those --- but there is a group that is trying to block them from building any more gated communities in this area because they're wrecking everything.
It is pitiful! Not worthy of personal responsiblity.
Fight against HOA if you will, but don't buy one and break your word.
Oh, puh-leeze. The terms of a "contract" that says that a bunch of bullies can whimsically decide whether the paint color you want for the outside of your house is acceptable or not are unconstitutional on their face.
Or whether a freaking outside storage shed has enough trees planted around it to make it "compatible" with the rest of the neighborhood. What complete bullcrap.
None of that has anything to do with paying bills for common areas (which I pay, of course). But even there, if the HOA stops maintaining the pool or greenbelt, I should have the right to stop paying without facing quickie foreclosure and punitive litigation by the HOA.
The whole issue is about whether you really have control of your property. When all decent areas are PUDs, we won't.
I would agree that's unfair. Just don't buy a home in one of those places if you don't like the rules --- I wouldn't. But then you have to risk neighbors living a certain way that you might not like and you have no control over them --- but it's good because they have no control over you.
Clearly you and your pal have no qualms about putting pen to paper and signing a contract without any intention of fulfilling the contract. Your word is worthless. You are without honor plain and simple ... and I avoid people who are not truthful. You are not.
Two problems:
- Many people don't understand the consequences of the PUD overlay when they close on the home (it's one of a couple hundred docs you sign at closing, and no one reads them all word for word).
- Others understand it, but are willing to sign away their rights. because they think the PUD is the magic formula for a community with like-minded neighbors, etc. (give me a break), and (in hindsight) an arrogant sense of exclusivity.
And I will have to admit that in my late 20s I was in the second group. And I was wrong.
To me --- I would suspect I might be getting into a gated community of some kind if there was a common pool instead of individual ones, if there was a common look to the neighborhood instead of lots of individuality. If I read something saying I had to have some kind of lawn or keep my grass mowed, I would think twice. I think you can get suspicious just by driving down the street where you are thinking about buying.
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