Archive for the ‘Current Events’ Category

Post Falls American Flag Flap

July 10, 2014

It’s the season of the Fourth of July, so of course we had to have an HOA versus American Flag story. Unfortunately, this year we had one right here in the Gem State. Post Falls, Idaho, to be exact.

It is never a good idea for an HOA to try to interfere with a homeowner’s right to fly Old Glory. This applies doubly when he’s a dapper veteran like Mr. Benham of Post Falls.
images

The local news picked up the story and the HOA wisely sounded the retreat. The President made a personal apology to defuse what was quickly becoming a heated problem. Allie Norton puts it thus:

Although Benham wasn’t complying according to Fieldstone rules, which he agreed to when he bought the house. the board let it go. Benham is happy that they did, but would also like a written apology so he can show all veterans.

Ms. Norton does not mention if the HOA’s threat to use fines was legal under Idaho’s new fine laws.

http://www.kxly.com/news/north-idaho-news/vet-gets-apology-from-hoa-over-american-flag-flap/26753948

Advertisements

Governor Otter Signs Idaho’s HOA Fine Bill Into Law

March 20, 2014

Yesterday, Governor Otter signed SB 1310 into law.
003blue_sm

The law will take effect this July as Idaho Code Title 55, Section 115 (I.C. 55-115).
A brief legislative history of the bill is available here.

However, it is interesting to see how quickly a bad experience of one homeowner can result in a new law if the conditions are right.

Here is a timeline of events a little more thorough than the legislative history.

August 2013, according to Senator Rice’s testimony before the House, an owner in Caldwell, Idaho has a lawn that went yellow. She made some effort to fix the problem, but still got fined.

On Monday, November 4, 2013, Senator Rice posts on his blog that he had “been receiving complaints about homeowner associations and specifically management companies abusing homeowner associations in subdivisions.” He asks for comments/input from the community.

Up until February 2 , 2014, Senator Rice meets with constituents and the National Association of Realtors working on his Bill.

When it was ready for the Idaho Senate, Senator Rice includes the following statement of purpose:

RS22743C1
Currently Home Owners Associations enforce covenants and restrictions in subdivisions by fining
individual home owners for violations of such covenants and restrictions. Frequently, these fines
are levied despite home owner attempts to comply with the covenants, and without any process
other than a letter informing the home owner that they will be fined. The fines are then enforced
through liens on the home owners real property. This bill puts reasonable requirements in place
that protect the home owner from arbitrary and capricious actions by the home owners association
and provides a set of standards that courts can use if there is a dispute regarding the validity of the
fine in a subsequent lien foreclosure action.

On February 7, 2014, Senator Rice’s Bill is presented to the Senate Commerce and Human Resources Committee. It passes easily.

On February 27, 2014, Senator’s Rice Bill passes on the floor of the Senate with a unanimous vote.

Local media is supportive of the bill.
Capture
A poll of newspaper web readers in Idaho shows a 60-40 split on whether HOA’s add value to property. I like comments made by a local board member.

CaptureHR
March 7, 2014, the House Commerce and Human Resources Committee reads and passes the bill on to the House floor.

March 12, 2014, the Bill passes on the house floor.
1310 Vote

March 19, 2014, Governor Otter signs the bill.

Now the clock is just ticking until the law goes into effect as our new Idaho Code S. 55-115. That leaves just over three months for all of Idaho’s HOAs to get their fines into compliance before the law is effective. I’m sure we’ll be busy here at VF Law with our HOA clients. We had a good turnout at today’s lunch among managers interested in discussing the law, and next week Vial Fotheringham Boise is hosting a free training for Board members (Thursday 7 pm) at our office. Drop by if you’d like.

Event Details are here

The Realities of CCRs (Local op-ed)

March 14, 2014

A local HOA president has written with great perspective about SB 1310, which recently was voted into Idaho Law.
Capture

In particular, I liked these thoughts:

In my experience, getting people to step up and serve has been a real problem. Homeowner associations are required to have an annual meeting to go over issues concerning the community, the budget and to elect officers. It is very difficult to get the required 10 percent of homeowners to show up. Time is valuable, so it is easier to pass the responsibility off to someone else and say rules are unfair.

Our subdivision maintains over 5 acres of so-called common areas for these purposes. We are taxed internally and pay to maintain these common areas by our HOA dues. What would happen if the city had to maintain it?

Fifth Annual HOA Forum a Hit

March 10, 2014

Saturday morning we hosted Vial Fotheringham’s fifth annual Spring Forum here in Boise. We’ve been doing these every year since we opened the office here. This year we had the most attendance ever: about ninety participants, I think. It was a good time. We had a lot of questions come up about SB 1310. We also discussed governing documents, managing HOA money, maintaining common area and common property, construction defects, vendor contracts, keeping common area secure, and document retention policies.

The firm will have slides available, and if you are looking for information for next year, it is easy to get on Vial’s email invitation list. Check here: http://www.vf-law.com/events/idaho for information about our free monthly training meetings, our Idaho binders, or about next year’s forum.

Capture

I suspect we will be doing quite a bit of education work about the new fine law once SB 1310 becomes Idaho Code Section 55-115. Next week, we will be hosting some training sessions for managers and owners to get ready.

Idaho House Commerce & Human Resources Committee Gives Thumbs Up To SB 1310: Moved to Floor of House

March 7, 2014

On Wednesday, March 5, 2014, the House Commerce and Human Resources Committee heard Senator Rice of Caldwell present his Bill, SB 1310. Senator Rice, the witnesses, and the members of the committee seemed to agree on the need for some legislation in Idaho for homeowner associations, and on the importance of fines and proper fines only. There was some testimony that the specific language of the statute was not clear enough, however in the end the bill was given a “Do Pass” recommendation and sent to the House Floor for a third reading and approval.

CaptureHR

The entire hearing can be heard here: http://lso.legislature.idaho.gov/MediaArchive/ShowMediaByCommittee.do. However, you must select the appropriate “standing committee” of the House and correct date to download the file.

Today, Friday March 7, SB 1310 was on the House’s calendar for a third reading, but the House did not get past the education bills also on the calendar. Perhaps it will be taken up next Monday.

New HOA Law For Idaho? SB 1310 passes unanimously.

February 28, 2014

ope-capitolWe have been hoping for new HOA laws in Idaho for some time. It looks like we may have some on the way.

Senate Bill 1310 passed the Idaho Senate unopposed yesterday. If it becomes law, the Bill would appear in Idaho Code Section 55-115, and would make it illegal for a homeowners association to assess fines against homeowners unless certain conditions are met.

In particular, the HOA’s CC&Rs must allow for fines. The HOA’s Board must vote for the fines and the owner must be given written notice and an opportunity to cure the violation.

These are all logical and fair restrictions, and are consistent with how HOA law has developed in other states. However, it would have been nice to see a broad HOA law drafted rather than simply having one issue legislated at a time. This is a good start, though.

I will try to post a more thorough analysis of the law and its consequences for HOA boards in Idaho in the days to come.

The bill itself is posted here.

17 55-115. HOMEOWNER’S ASSOCIATION — PROHIBITED CONDUCT. (1) As used in
18 this section:
19 (a) “Homeowner’s association” shall have the same meaning as in section
20 45-810(6), Idaho Code.
21 (b) “Board” means the entity that has the duty of governing the associ22
ation that may be referred to as the board of directors, executive board
23 or any such similar name.
24 (c) “Member” or “membership” means any person or entity owning or pos25
sessing an interest in residential real property or lot within the phys26
ical boundaries of an established homeowner’s association.
27 (2) No fine may be imposed for a violation of the covenants and restric28
tions pursuant to the rules or regulations of the homeowner’s association
29 unless the authority to impose a fine is clearly set forth in the covenants
30 and restrictions and:
31 (a) A majority vote by the board shall be required prior to imposing any
32 fine on a member for a violation of any covenants and restrictions pur33
suant to the rules and regulations of the homeowner’s association.
34 (b) Written notice by personal service or certified mail of the meeting
35 during which such vote is to be taken shall be made to the member at least
36 thirty (30) days prior to the meeting.
37 (c) In the event the member begins resolving the violation prior to the
38 meeting, no fine shall be imposed so long as the member continues to ad
39 dress the violation in good faith until fully resolved.
40 (d) No portion of any fine may be used to increase the remuneration of
41 any board member or agent of the board.

Where Your California Bar Membership Won’t Get You…

June 19, 2013

In a week marked by an interesting US Supreme Court ruling on “the right to remain silent”, California’s Fourth District Court of Appeal has found that an owner’s right to attend an HOA meeting does not equate to the right to bring counsel along.

I find this especially interesting as the owner is an LLC, not your average Joe.

http://www.metnews.com/articles/2013/sb061913.htm
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20CACO%2020130522049.xml&docbase=CSLWAR3-2007-CURR

New Mexico Gets HOA Reform

June 11, 2013

New Mexico recently adopted an act to govern some basic homeowner association functions. The Act  goes into effect on July 1, 2013.

New Mexico Capitol

New Mexico Capitol

I have not reviewed the Act in depth, and I am not very familiar with the law of New Mexico. However, it appears that the Act addresses a number of concerns local to New Mexico, for instance relating to water shortages. The Act was adopted in addition to a condominium act. The topics addressed in the Act’s title are a good measure of what is covered:
PROVIDING FOR THE FORMATION AND MANAGEMENT OF PLANNED
COMMUNITIES;
REQUIRING NOTICE AND OPEN MEETINGS;
PROVIDING FOR DISCLOSURE OF RECORDS;
ALLOWING AUDITS;
PROVIDING FOR ATTORNEY FEES;
REQUIRING DISCLOSURE OF HOMEOWNER ASSOCIATION INFORMATION TO PURCHASERS;
LIMITING RESTRICTIONS ON THE INSTALLATION OR USE OF SOLAR COLLECTORS AND WATER CONSERVATION MEASURES.

A number of these provisions would be very helpful in Idaho, where we have little clear law addressing homeowner rights, association obligations, or water conservation.  However, the New Mexico statute language seems very much focused on establishing homeowner rights at the expense of all of the other interested parties.  For instance, the law “providing for attorney fees” simply broadens attorney fee provisions to always award attorney fees to the prevailing party if the declaration provides attorney fees to any party.  It would have been more helpful to HOAs, in my mind, to establish a broad right to attorney fees for enforcing HOA rights found in any declaration.  These fees are often what keep homeowners from being able to enforce declaration provisions at all.

 

Good local commentary is found here:  http://www.abqjournal.com/main/208656/biz/new-law-affects-homeowner-associations.html

The Act text is here: http://www.nmlegis.gov/lcs/handouts/ERD%20-%20Homeowner%20Association%20Act.pdf

 

Minor Amendment to Idaho’s Condominium Statute Passed

March 25, 2013

OLYMPUS DIGITAL CAMERA

Idaho’s legislature has been busy this year.  The notably long legislative session has been dominated by healthcare, taxes, and education.

However, along with the politically-charged bills, a small functional amendment has been made to Idaho’s Condominium Act, I.C. 55-1505.

The amendment permits for allocation of common area costs based on total square footage of the units.  This is a common practice among condominium documents, and so the amendment recognizes the practice as legitimate.

Here’s the heart of it, which was passed today in the House:

2013 Amendment

http://www.legislature.idaho.gov/legislation/2013/S1111.pdf

Florida’s Freeway to Foreclosure

February 7, 2013

In a move that would recognize the value HOAs and condo associations add to their communities, Florida is considering a bill that would fast-track association foreclosures.  This would get defaulting/nonpaying owners and slow-to-foreclose banks out of the picture faster and allow the community to ensure that properties are marketable.  Hopefully the result would be a decrease in unkempt, deserted properties stuck in legal limbo for months and years.

It will be interesting to see how it all plays out.  There are some that challenge whether it is fair to require the owner to pay all back assessments in order to challenge the assessment foreclosure in court.  It seems to me that the law should simply distinguish between regular assessments and special assessments, for which the owner had title notice and should pay, and any limited assessments or fines piled on top of that.

Ranking: Brevard top U.S. spot for buying a foreclosure

 

http://www.orlandosentinel.com/business/os-overdue-hoa-bills-20130206,0,2306446.story