Posts Tagged ‘Association’

Indiana Flag Fight

October 31, 2014

5431094_GFrom www.myfoxchicago.com

These flag disputes are common enough that they don’t usually deserve individual comment from Boise.  However, in this Indiana incident, the county prosecutor has gotten involved, and the press articulates the legal issue fairly well.  Other HOA boards should be aware of this interpretation and position:

“According to the board’s letter dated Oct. 18, the board takes the position that it has authority under the ‘time, place, or manner’ provision of the Freedom to Display the American Flag Act of 2005,” the letter reads. “In relying on ‘time, place, or manner,’ the board interprets its authority much too broadly.”

The Flag Act, Griffin wrote, actually prevents homeowners associations from enforcing most kinds of regulations regarding display of the American flag unless a “substantial interest” exists.

The picture shows a rather prominent flagpole on the lawn.  I’m sure the HOA was mostly concerned with the pole’s construction and location, not with the flying of Old Glory.  However, that probably won’t prevent the application of the Freedom to Display Act by the prosecutor.

Post-Bankruptcy Assessments

September 11, 2014

We sometimes have to have a difficult conversation with a former owner who has gone through both bankruptcy and foreclosure but still owes assessments. The conversation usually goes something like this California attorney’s article from the U-T San Diego.  I still run into bankruptcy attorneys that want to debate the point, soit is good to see at least one other HOA lawyer taking this view of it.

http://www.utsandiego.com/news/2014/aug/30/hoa-assessments-bankruptcy/

Capture

Kelly G. Richardson CCAL is Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice.

Trainwreck from Yuma

September 11, 2013

http://www.yumasun.com/articles/hoa-89558-laws-office.html

Well, I knew we’d be watching this Arizona HOA law, but I thought for different reasons.  It appears there was a successful challenge to the way that the homeowner association-related laws were passed in the middle of a bill regarding general election laws

Rocky Mountain Rumble

January 30, 2013

A law blog post from Colorado highlights some interesting HOA declaration policy.  First some background.

When a developer wants to build a condominium, he (and they are almost always he’s) starts by recording a declaration of covenants, conditions, and restrictions on the property.  In Idaho and most states, this declaration puts the property under the Condominium Act, and, as implied in the title, binds future owners to the covenants, conditions and restrictions stated.   The Colorado case highlights two common clauses.

One is an arbitration clause that demands that all disputes be resolved by arbitration rather than in the courts.  Arbitration is very much preferred by developers and builders as it is seen as much more friendly than the courts.  Conversely, associations prefer to use courts.

The second clause at issue is an amendment clause.  These allow condominium owners to amend their declarations, usually with a super-majority vote.  Developers almost always retain veto power, in one way or another, over the amendment provisions, so that owners cannot take control of  the declaration amendment process before developers are finished building and selling units, etc.  Otherwise, the developer-friendly terms in the declaration might be amended out to the detriment of the developer.  Owners are presumed to have read, understood, and agreed to all the terms included by their decision to purchase.

With that background in place, it is easier to see why the arguments made in Colorado are interesting.  Per Messrs. Berg and Mill:

Residents began reporting the alleged defects, and the Residential Association (the “Association”) retained construction defect counsel. Shortly thereafter, the Association voted to amend the declarations to remove the arbitration clause without seeking the developer’s or GC’s consent. The Association then filed a construction defect suit against the developer and general contractor.

From this association-side lawyer’s point of view, the developers’ position is nearly comical.  The developers unilaterally drafted a document with total control of the language it contains.  Then they retain absolute control of the association while they build the condominiums and sell them.  Finally they turn over the condominium to the owners’ control and exit stage left.  When the owners discover defects, they amend the declaration in their favor.  Now the developers challenge the legality of the amendment, saying their interests were not fairly represented in the amendment process.  Remember, these are the folks that drafted the entire original document with absolutely no give-and-take with the future owners.

I’ll have to try to get a copy of the opinion and briefing, but it sounds like the Colorado judge got it right, finding that there was no language in the Declaration requiring developer consent to amendments, so the owners were free to amend the Declaration under its explicit language.  Good luck to those condo plaintiffs in Colorado fighting the good fight.

http://www.lexology.com/library/detail.aspx?g=b768d3c2-c021-4701-83eb-59bdc1998b87

 

All-You-Can-Eat Politics

October 18, 2012

The other morning I was driving my kids to school here in Boise, and I was surprised to notice that a political sign right outside my neighborhood was not a political sign at all.  It was a sneaky ad for Tucanos restaurant.  Now, I love Brazilian barbeque, and I like a good funny ad, but immediately after I chuckled I started to think, not about grilled pineapple, but about whether advertisers were really permitted the same leeway in placing signs as political candidates are granted.

The Albuquerque Tucanos is also apparently actively campaigning, and the local news covered the issue: http://www.youtube.com/watch?v=YsdW1arRFe4 .  I did not see media coverage here in Boise, even though we got the same ad coverage.  I suspect the answer is the same here:  This is just littering.

It is election season, and those signs are everywhere here in town.  I’m not going to discuss what individual property owners do on their own land, as that is a topic for another day, but HOAs often own prominent roadside common area.  HOAs are just like any other owner, and they can enforce sign-placement laws.  In Idaho, those laws are here: http://legislature.idaho.gov/idstat/Title18/T18CH70SECT18-7029.htm.  So an HOA should act like any other responsible property owner and make a decision to clear the signs off or let everyone have their say.

The law:

18-7029. PLACING POSTERS OR PROMOTIONAL MATERIAL ON PUBLIC OR PRIVATE PROPERTY WITHOUT PERMISSION. It shall be unlawful for any person to erect, install, attach or paint, or cause to be erected, installed, attached or painted, election posters or signs upon public or private property, real or personal, in the state of Idaho, without permission from the owner or occupant of such property, and it shall be unlawful for any person to place or leave any literature or other political, promotional or sales materials upon public or private property, real or personal, in the state of Idaho when the owner or occupant of such property, by a sign conspicuously posted on the property, or by other written or audio communication to such person, has forbidden the placing or leaving of literature or other political, promotional or sales material upon that property. Provided, however, that the granting of such permission by any public utility company on behalf of any candidate for public office shall constitute the granting of like permission by such public utility company to all other candidates for the same public office. Any violation of this section shall be a misdemeanor.

HUD Duh

September 5, 2012

OK, OK, I know.  Sometimes those fair housing issues are complicated.  Maybe there’s a close call.  Sometimes the HUD case inspectors  seem to have it out for you and the HOA.  But once in a while you just have to wonder what is going on with the American educational system.  Today Tampa area’s Townhomes of Kings Lake  gets the wag of the finger.

Tampa Bay Times

As reported by the Tampa Bay Times, who, as far as I know, has no reason to make a Gibsonton HOA look any dumber than the facts require, this association tried to enforce an occupancy limit and policy on a tenant family of eight, saying they “had too many kids.”  It sounds like the family has other issues going on, but from an HOA best practices point of view, this is not good.   Not good at all.

This is not a hot-button cultural question balancing on the definition of a family.  This is just plain, old, well-settled, illegal discrimination.  Don’t do it.

-J

Going Up In Smoke

August 20, 2012

I just spent a great weekend in Idaho’s Sawtooth Mountains.  Wow.  It was sunny and warm, and the water was glacier-blue and clear.  This blogger’s photo makes it look too dark:

Great blogpost on US States

Unfortunately, there is a serious forest fire nearby.  It isn’t even the Idaho fire you have heard of.

The Halstead fire has burned close to 90,000 acres of beautiful central Idaho mountain land.  I’m sure the locals are glad that their communities are not in danger, but one Stanley business owner I spoke to was very troubled that the media coverage of the fires was keeping their bread-and-butter tourists away.  Instead of tourists, there are large field full of firefighters, who, by the way, seem to be doing a great job.

When these massive fires burn wilderness, it is bad enough.  When they turn on neighborhoods, it can be tragic.  Sometimes HOAs on the edges of Boise are affected.

Besides addressing the obvious questions of sustainable locations, what can HOAs do to prepare for the unexpected?  Obviously, they can make sure that they are insured as required by their governing documents and by common sense.

Some associations also make plans for emergencies by organizing the neighborhood in advance.  Appointing block captains, getting resources from groups like CERT and making first-aid training to local residents can also help.

So, when you are not out enjoying Idaho’s beautiful wilderness areas this summer, take a minute to think through how your neighborhood prepares for major disasters. Oh… or host a firefighters bbq!

Jeremy O Evans

 

HOA is where the heart is: Association as community

August 16, 2012

Not all homeowner associations take on extra responsibilities, but when one does, it deserves some kudos.  The Opequon Meadows HOA in West Virginia is stepping in to help pay expenses for their uninsured, unemployed neighbor who was killed in an auto accident.

Originally from Jamaica, Richards had lived in the Opequon Meadows subdivision north of Martinsburg for about 20 years, Denise Winslow, president of the HOA, said in a telephone interview Wednesday.

“He worked at the tannery in Williamsport (Md.), but when it closed, he lost his job,” she said. “He had no life insurance. He took any local jobs. He struggled through life.”

Winslow has met with the family and they “have absolutely zero resources,” she said. The family cannot afford the $6,000 to bury Richards, she said.

The HOA plans to make a cash donation and Winslow has reached out to community members to donate funds for the funeral expenses, she said.

Nice work.  That is certainly above and beyond the call of duty.

 

Las Vegas’s HOA Scandal: Bringing Out The Best In HOA Crooks

August 10, 2012

I have argued before, and often, that we need more laws in Idaho for homeowner associations and condominiums: Just a few guidelines to keep boards, accountants, and managers on the straight and narrow.  So, when the hokey pokey that is known as the Las Vegas HOA Scandal (it looks better in neon) came along, I thought I’d found a gift that would keep on giving.  Fake elections with straw buyers and counterfeit ballots, millions stolen, suicidal lawyers, all this needed was a some official cover-up, and you’d have a world-class headline.

It made my job easy.  Throw up the latest development, and “jackpot!” Arguments for reform don’t come much easier.

The problem is that Nevada already has HOA legislation.  A lot of it.  If anything, Nevada’s law only drove the sheisters to new levels of creativity.

Here in Idaho, we don’t get big HOA scandal headlines, because our scammers are low-profile and uncreative.  All you have to do to skim a little off the top is write some checks, take some vacations and spend as you go.  If the board is not paying attention, you can get away with it for years.  When you get caught, it is barely news, because who hasn’t heard of a treasurer or manager running off with association funds before?

In the Gem State, you are on your own.  But don’t pack for Idaho yet, potential scammers.  That can cut both ways.  We also love our guns.

Imagining HOAs’ Future

August 7, 2012

A while back, I enjoyed author Neal Stephenson’s imagining of a United States where neighborhoods exercised virtual national sovereignty, with extreme border security and visa requirements restricting even the movements of a high-speed katana-wielding pizza deliveryman.  While this would certainly be an unexpected evolution of today’s covenant-based associations, there has been some evolution of HOAs over the years.  I sometimes wonder how HOAs will evolve in the near future.

First, I think we can all agree that homeowner associations are inherently conservative organizations.  They are based on covenants conditions and restrictions that are recorded on real property and that often remain unchanged for decades.  Usually CC&Rs can only be amended by a supermajority of the owners: an action that takes coordination, participation, and consensus.

It is no surprise then,  that HOAs are not weather vanes of social change.  Instead, we see conservative covenants challenged by owners with particular agendas, be they environmental responsibility, political activism, or the like.  Those who challenge covenants no doubt see precedent set in federal legislation that has retroactively outlawed covenants creating racially segregated housing communities, age-specific restrictions (except in retirement communities) and other fair housing issues, in addition to less-obvious federal rules regarding satellite dishes.

It would be interesting to see if HOAs could play a leading role in even more politically-charged social areas.  For instance:

  • Could an HOA ban undocumented residents?
  • Could an HOA ban guns of any kind?
  • Could an HOA require smart meters, solar panels, or laundry lines?
  • Could an HOA dive into the marriage debate?

Of course, we always advise our clients to avoid issues that might lead to litigation.  But that doesn’t mean attorneys can’t enjoy imagining legal problems yet to arise.

Update: These Colorado HOA attorneys just blogged about another social topic:  smoking bans.