Posts Tagged ‘Declaration’

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

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Residents of Idaho’s “Pro-Gun” Citadel To Be Tenants, Not Owners/Members Of An HOA

January 31, 2013

So, the recent news stories speculating about pro-gun groups creating a gun-loving safe-haven in Northern Idaho are hard to miss if you happen to live here in Idaho.  It’s one of those regional things.  Due to not-so distant history, Idahoans are sensitive to words like “compound” and “extremist”  when used in conjunction with their state.  Imagine, for instance, if you were a resident of Waco and wanted to open a new church.  You’d just be sensitive about the words you use.

To show that this isn’t purely nativist paranoia, one of the speculative out-of-state pieces is illustrated with stock photos of SWAT teams …

Anyway, this story was interesting to me because I wondered if the Citadel was planning to use restrictive covenants to create this particular compound in Idaho.    HOAs and covenants could be used to create all kinds of political, environmental, or age-related communities, I suppose.  Another out-of-state paper indicates that this is not the approach the Citadel is taking.  Instead, it looks like a lease is going to be used.  While this would allow for maximum flexibility and eviction power, somehow perpetual tenancy doesn’t seem consistent with the life, liberty, and pursuit of happiness ideals the Citadel proposes.  Aren’t homeownership and private property rights just as fundamental?

Sources:

http://www.oregonlive.com/mapes/index.ssf/2013/01/proposal_for_idaho_survivalist.html

http://www.digitaljournal.com/article/341291

http://www.imperfectparent.com/topics/2013/01/15/idaho-commune-will-only-allow-families-of-gun-toting-patriots/

http://www.business2.com.au/2013/01/the-effect-of-homeowners-associations-on-sustainability/

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

 

Tea Parties, On The House!

October 22, 2012

As a follow-up to my prior post, the little granddaughter in Georgia gets to keep her pink playhouse.  The association has dropped its suit.

A Ditch Runs Through It

August 14, 2012

Ok, I admit it, the fly fishing photo is a red herring.  Idaho is well known for its fly fishing, but it ought to be just as well known for its amazing irrigation systems.  These canals, and the institutions that maintain and operate them, allow thousands of us to live and farm in what was once a rocky desert.

In Idaho’s Treasure Valley, the canal system and farmland that it supports is steadily being moved, buried, and reshaped into HOA-governed slices: many what the New York Times called “a quintessential slice of American suburbia.” Some Idaho associations run irrigation or well systems, so irrigation is a central part of their role.  However, for most suburban HOA-dwellers and boards, this engineering marvel is a scenic backdrop, but not much more. This should not always be the case.

When a developer moves in and builds homes where there was once open farmland, the canals are buried, put in pipes, or put into concrete spillways along major roads.  Sometimes the open canals get attention when a child is tragically swept away, but usually they remain in the background for suburban and urban (sic) Idahoans.

But buried or not, canals require maintenance and care.   Often large volumes of water flow through these arteries.  Roots can catch onto debris and block the flow of water.  Clogged canal pipes can flood and damage homes and property.

Idaho code requires the owners of the canals–irrigation companies–to maintain their canals:

42-1204. Prevention of damage to others. The owners or constructors of ditches, canals, works or other aqueducts, and their successors in interest, using and employing the same to convey the waters of any stream or spring, whether the said ditches, canals, works or aqueducts be upon the lands owned or claimed by them, or upon other lands, must carefully keep and maintain the same, and the embankments, flumes or other conduits, by which such waters are or may be conducted, in good repair and condition, so as not to damage or in any way injure the property or premises of others.

Idaho caselaw has interpreted statute to mean that when a landholder puts a canal into a pipe, the landholder becomes responsible only for any increased maintenance costs.  However, these questions are usually not left to statute or courts.  When a developer seeks to move or bury a canal, the easement-holding irrigation company most likely will require a “license agreement.”  These license agreements are recorded documents in which the developer will take responsibility to maintain the now-buried canal.  The developer, in turn, may pass this duty along to the association in the CC&Rs.

If the CC&Rs of your Association require the Association to maintain a buried irrigation pipe, the Board should have a plan in place to regularly perform this maintenance.  Not only could an Association become liable to downstream water users in the event of a disruption of water, but it could find common areas and private lots swamped in the process.

Jeremy

Some History and Background: