Posts Tagged ‘HOA’

Virginia is for lovers of HOAs

November 6, 2014

5456d6dcd74b5.imageSo two things jumped out at me from this article by Ted Strong in Richmond.  First,  it’s a great article on HOAs.  It isn’t often that someone captures the quasi-governmental role that associations end up playing in modern communities:

associations are nearly ubiquitous for new residential housing in the Richmond area, embraced by developers as a way to handle long-term care of common amenities and by local officials as “mini-governments” that can help maintain order and property value.

Second, the underlying dispute was regarding an in-home day care center.  It looks like the HOA took a position in the county conditional use permit hearings, but did not take any legal action based on its covenants alone.  I don’t know if this is the case in Virginia, but here in Idaho the association could have done both.  So it is possible the HOA decided to back down.

I have had a number of boards ask me about this type of situation.  It can be difficult to definitively define the line between residential and commercial use.  Day cares are one tough call.  Frequent “AirBNB” landlords can be too.  A case of low income housing was just in the news too.  The Board would need to carefully review the specific language in their restrictions and probably look at other uses in the community as well before deciding.

Anyway, this Virginia case isn’t going anywhere, but HOA news lovers should be watching that Volt case in Waterford CA.  I’ll comment when it all plays out a bit more.

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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.

Delaware Adopts HOA Ombudsman Approach

October 21, 2014

Delaware recently adopted a new law that establishes a position of ombudsman for homeowners and homeowner associations and other shared ownership schemes in Delaware.  The purpose of the law was to resolve disputes:

These communities are created by legal documents drafted by the developer and are intended to be managed by those living in these communities. This system can create difficulties for those living in these communities, especially when disputes arise.

As discussed in local coverage, the Delaware office would resolve disputes between boards and homeowners.  However, the office outlined in the law not only resolves disputes, it also provides education, provides election monitoring, accepts complaints, instigates investigations, and even publishes rules and procedures for the state.

It is an interesting approach.  I’m not sure if it would ever fly here in Idaho.  It is difficult to know if the idea would be seen as “big government.”  However, an ombudsman certainly could allay fears (justified or not) that HOAs have too much power, and could help keep minor neighborhood disputes out of court.  Perhaps this is why some other Western states have also opted for ombudsman positions.  For instance, in Nevada the ombudsman is copied on association lien filings as a form of review. In Arizona, the ombudsman plays a dispute resolution role. Colorado has an ombudsman as well, although it seems to be more advisory.  An hoa blog tried to collect comments on the practice, here, but did not end up with a definitive list.

Delaware Sources:

http://legis.delaware.gov/LIS/LIS147.nsf/93487d394bc01014882569a4007a4cb7/e0c652a7baefac6485257c39006eb432?OpenDocument

http://www.delawareonline.com/story/news/local/2014/10/20/ombudsman-weigh-homeowner-association-disputes/17639817/

Superliens and HOA foreclosure in the news

October 16, 2014

A pair of Wall Street Journal bits today– a blog and a paywall-protected article– discuss HOA foreclosures.  An association can, in Idaho and most states, foreclose on its assessment liens.

What is unusual is that the blog actually looks at the rationale behind HOA foreclosures instead of taking the usual populist anti-HOA tone.  In doing so, the blog reports an argument that we have had to make many times in our own office:

“The problem is that [some] lenders aren’t doing what they need to be doing. They’re not fulfilling their obligation. All they need to do is fulfill their obligation in paying the assessments or to exercise their right to foreclosure in a timely manner,” says Ms. Bauman.

Most of this WSJ coverage is about states where HOAs have a “super-lien” that allows an HOA to get its money from foreclosure before the banks even get paid.  We don’t have that here in Idaho, where most CC&Rs explicitly subordinate the HOA’s liens to purchase price mortgages.  However, HOAs in Idaho also face the same banks and the same problems with foreclosure.  An idaho HOA in extreme cases may even see advantages to foreclosing subject to a mortgage, just to help the process move along.

The blog:

http://blogs.wsj.com/developments/2014/10/14/why-homeowners-associations-want-to-foreclose-on-homes/ 

The article:

http://online.wsj.com/articles/foreclosure-dispute-pits-mortgage-lenders-vs-investors-1413321865

PS, Ballard Spahr posted about similar super-liens in Colorado, recently:  http://www.jdsupra.com/legalnews/implications-of-a-homeowner-association-92787/

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/

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

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.
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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

New HOA Fine Law Is In Effect

July 3, 2014

So, Idaho’s new fine law is in effect, and hopefully our local HOAs are complying. We have had a spate of coverage regarding the new law. I noticed this on KBOI news the other night, but just got around to finding the link online. As usual, the comments are a mix. A ton of people rant about HOA problems, and one or two post thoughtful posts about how HOAs help their property value.

http://www.kboi2.com/news/local/New-law-to-tame-down-HOAs–265157441.html

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Boise State Public Radio covers Idaho Fine Law

May 28, 2014

http://boisestatepublicradio.org/post/new-idaho-law-aims-curb-power-homeowners-associations

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.
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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?

Something to Watch In Arizona… SB 1454?

June 21, 2013

 

http://www.sfgate.com/news/article/Brewer-signs-community-association-bill-4613339.php 

 

Update: Bill text

http://www.azleg.gov/legtext/51leg/1r/bills/sb1454s.pdf