HOA Issues-Help

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Latest post 01-08-2008 10:20 PM by rlongenbach. 26 replies.
  • 01-05-2008 3:39 PM

    • SCRES
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    Question [=?] HOA Issues-Help

    I live in a neighborhood in SC that has a HOA. I live in a cul-da-sac near the back of the neighborhood. I put up a carport behind my fence near the rear of my property to house my boat. The HOA allows boats to be parked at the rear of property owners lots. The HOA is telling me I have to move my boat and remove my carport. I have read the by laws , convenants and restrictions of the HOA and it states that out buildings are allowed only if approved. Board members of the HOA have called me and said the carport is outbuilding and will not be approved. I know my back is up against the wall with a HOA. I aware that basically a HOA can do anything it wants to do and set its own laws. Currently the by-laws do not state that there are any fines are penalties assocoaited with breaking the covenanants and restrictions they just state that all property must be removed or can be removed by others at the owners expense. my question is do I have any outs at all with this issue? Will the HOA have to sue me to get me to actually remove the carport and boat? Again I know I up against the wall i'm just wondering if a resident of a property governed by a HOA in SC has any rights at all and if so what are some things that can be done to fight the HOA? Thanks for help.
  • 01-05-2008 4:26 PM In reply to

    re: HOA Issues-Help

    We have had many people in our s/d do the same thing. Put up a carport or other outbuilding without the approval of our HOA.

    Our board tries to work with them vs. requiring that it be torn down. Normally we ask them to submit their plans first, but if it's already been built, it's a bit late.

    They may allow you to submit the plans and get approval after the fact. That's happened several times in my s/d and normally we've given a formal approval, or done so after slight modifications have been made.

    Other times we've filed a document with the county recorder stating that they have a structure on their property that does not have approval of the HOA. Then when their home is sold, the structure must be removed, because if it isn't the new buyer can't get title insurance.

    Don't give up the ship just yet.
  • 01-05-2008 5:02 PM In reply to

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    re: HOA Issues-Help

    thanks for your thoughts. Ive emailed and called a member of the arch comm of the HOA and said I didnt mean to step on anyones toes i just didnt realize I had to submit and I would be more than happy to submit plans but they said dont bother it has to be removed. I am more than fine with removing the carport when I sell the house I'm just wondering if i dont take it down in the meantime what can they do to me as far as fines and penalties and legal actions. The by laws are silent as to fines and penalties. Thanks again
  • 01-05-2008 7:26 PM In reply to

    re: HOA Issues-Help

    They will probably put a lein on the house for amount of the fine.
  • 01-05-2008 7:57 PM In reply to

    re: HOA Issues-Help

    If they allow others to have boats but not you, that is selective enforcement, and you can fight that. Get date-stamped photos of other boats parked in the hoa to support your claim. Then ask to be put on the agenda of the next meeting, and take your proof.
    It apparently should be only the carport that is your problem, but again, if others have carports or sheds or some such, you may also be able to fight that. Did you get a city permit for it?

    You say the bylaws do not state fines or penalties associated with breaking the covenants and restrictions, they just state that all property must be removed or can be removed by others at the owners expense.
    Two things here: Many hoas ccrs do give authority for the board to enter property to repair or remove things, but the prevailing wisdom seems to be that THAT is trespassing, and NOT to be done. You could possibly post no trespassing signs, and if they enter your property, have them arrested for criminal trespass. You might still end up in a worse situation, because the local authorities may not arrest them, and the retaliation would be greater, BUT if taken to court, you may win. You also need to be sure that YOU own that land, that it is not common area. (In some places, a buyer gets only the house, not the land it is surrounded by.)
    Also, read your state law. We have a similar case in our hoa: some on the board wans to go on to someone’s property to repair something, but another member says no, get a court order. (so does the law)

    Residents in any state have little recourse against the board, but that is changing slowly. Not much can be done to fight the hoa, and whatever you do, DO NOT stop paying your dues. They can and will lien against you, and you could potentially lose your house for that small amount. In fact, write on your checks that the payment is for dues only,. And be sure to send it in plenty early.
    I don’t see that you have much to support your carport.

    There are houses here that are sold with I think it’s called “non-conforming” additions, which basically means the owner did not get a city permit when he added that addition.
    What a purchaser needs to do is to call the city and find out what they need to do to get that approved..

    Do you have any state agency that handles complaints between owners and the hoa? More states have such an agency because of the growing problems.
    Emails and phone calls have NO weight. Put your request into writing, send it certified with a return receipt requested. Then, if it goes to court or administrative hearing, you have proof YOU tried to correct your error.

    If the documents are silent, they should not be able to fine or penalize you. FWIW, it is my understanding that hoa fines are not collectable or enforceable because this is contract law, and generally a board will not spend the money to sue for small amounts, and are not legally collectible at sale, either. But do be sure of that. Remember, some states DO allow liens to be placed for fines, so be sure of your status. Check the state law.
    There is a forum at AHRC that you might post this question. It is for homeowners questions such as this. You may get more knowledgeable help than I have given.
    http://www.ahrc.com/new/index.php/src/news you have to register, but that’s painless.
    I am not lawyer, and have no idea of what I’m talking about, so do not trust my response.

  • 01-05-2008 7:57 PM In reply to

    re: HOA Issues-Help

    That would depend on state law. SOME states DO allow that, so the OP needs to read the law.
  • 01-05-2008 8:13 PM In reply to

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    re: HOA Issues-Help

    They will probably put a lein on the house for amount of the fine.----

    How do they determine a fine if there is nothing in the bi laws about fines? Do they just randomly pick a number?
  • 01-05-2008 8:30 PM In reply to

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    re: HOA Issues-Help

    well I certainly do appreciate all your information. right after i got off the intial call from "board members" i went down to walmart and bought no tresspassing signs and violators will be prosecuted and secured all around my fence. like u said who knows if this will do any good. My dues are $100 a year and i have front and back copies of all my cleared checks in my safe and my dues have never been late my wife is a notary public and when and i hand deliver my dues and have them stamped date of receipt. I have examined the by laws with a fine tooth comb and they are in deed silent as to fines and penalties. I plan to find a attorney ASAP that is not a member of the CAI or whatever that organzination is called. I have checkd court records and the land is indeed owned by me. Ive also thought about taking out restraining orders on every board member in the nieghborhood i will check with attorneys and the local government to see if thats feasible. Thanks again for your thoughts.
  • 01-06-2008 11:50 AM In reply to

    re: HOA Issues-Help

    I have examined the by laws with a fine tooth comb and they are in deed silent as to fines and penalties.

    Again you said the above. The bylaws are only one of several documents. What do your CCR's say regarding that? You might find that under Board rights, or enforcement, or some such. What do your archetectural rules OR your ccr violations policy say regarding fines, or other documents?
    If NONE of them adddress fines--oh, do be sure you have all the updated and most recent copies of all your docs. Our archetectural policy is being re-written. The member has been working on it for several months, and should be available soon, BUT the fines are defined in the CCR violations policy paper.

    I plan to find a attorney ASAP that is not a member of the CAI or whatever that organzination is called.
    It is CAI, and that is a wise decision: they are anti-homeowner. Be careful you do get an att who is knowledgeable about contract law, as this is a contract problem.

    I have checkd court records and the land is indeed owned by me.
    BUT many hoa ccrs give permission for the board or appontees to go onto that land to check for violations or do work such as repair or remove. It is that that at least some even hoa board members say is trespass and should not be done, to get a court order. OUR (CAI) att said to go onto the land to do the repairs. Then if the ho said anything, to leave and get a court order. One of our BM's is resisting, saying that even the city does not trespass for health reasons, which it does not, so the hoa should not trespass either, and to get a court order.

    Ive also thought about taking out restraining orders on every board member in the nieghborhood i will check with attorneys and the local government to see if thats feasible. Thanks again for your thoughts.
    Check to see if there is any alternate dispute resolution (other than binding arbitration) available in your state. Go to the http://www.chore.us/ site for more homeowner help.
    How old is your hoa? Do you know the date it was incorporated?
  • 01-06-2008 1:29 PM In reply to

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    re: HOA Issues-Help

    the CCR's have a section called enforcement. It states that if a violation has occured the board will send the homeowner 3 letters in 30 day intervals. if at the end of that 90 day period the violation is not corrected civil action will be taken in a court of law. ---

    the HOA begain October of 1990.

    Thanks for your help.
  • 01-06-2008 4:01 PM In reply to

    re: HOA Issues-Help

    the HOA begain October of 1990.

    READ your ccr's regarding termination!!!
    You may be reaching the point--usually about 20 years from the time the Articles of Incorporation were recorded--at which the members get to vote on dissolving or extending your hoa.

    If you are, consider getting on your board and work towards that. Or not, and work from just an owner pov. It may be easier if you are on the board.

    Ours has some tricky requirements, but the most difficult may be to get the 90% of total votes cast in affirmation of dissolving. We will work to reduce that number to a more reasonable one. We have a deadline to vote within several months of that date, and meet other requirements.
    You may need to educate the members as to the civil rights etc given up when buying into a corporation.

    Again, I really don't know what I'm talking about, so do NOT rely on my words.
  • 01-07-2008 10:50 AM In reply to

    re: HOA Issues-Help

    Now here's my $0.02:

    While fines may not be included in your governing docs, look for something about attorneys fees.

    If they take you to court for installing a carport without permission, and the docs very clearly have a process to get permission, the odds are in the HOA's favor to win, and if they win they will probably get attorneys fees added to the amount of judgment against you.

    Most of these are in the CC&Rs, not in the bylaws or rules (about attorneys fees and architectural protections).

  • 01-07-2008 10:54 AM In reply to

    re: HOA Issues-Help

    READ your ccr's regarding termination!!!
    You may be reaching the point--usually about 20 years from the time the Articles of Incorporation were recorded--at which the members get to vote on dissolving or extending your hoa.

    Most of the CC&Rs I have read allow for this, but don't mandate it.

    It's written to be like "The term of CC&Rs shall be XX years, at which time, shall be automatically renewed at the same amount unless a vote of the membership to dissolve the HOA is taken with at least 90% (should be 100%) of the members eligible to vote voting to dissolve etc. etc. etc."

    The point of the above is that someone has to do the work to call for the vote, it doesn't say the members MUST vote.

    Getting 90% of the members to vote on any HOA item is extremely hard work. Especially if you have a decent amount of off-site owners.
  • 01-07-2008 12:38 PM In reply to

    re: HOA Issues-Help

    "The term of CC&Rs shall be XX years, at which time, shall be automatically renewed...unless a vote of the membership to dissolve the HOA is taken with at least 90% (should be 100%) of the members eligible to vote voting to dissolve etc. etc. etc."

    Ours says basically the same thing. BUT, our tally is 90% OF THE VOTES CAST at an election held for such purpose within 6 months prior to the experation of the initial effective period or any XX year extension. 90% OF THE VOTES CAST, NOT 90% of membership. (we have other requirements to meet, also, within the 6 mo prior to and after the affirmative vote) and we will work to reduce that 90% to more like 50.5.

    You need to be aware that rogue boards will hide that termination information, and not set up or allow a vote. Not many people read or work to understand what the ccrs are and mean, so rogue boards get away with a lot of things.
    (I didn't, until I discovered that hos lost homestead exemption rights AFTER I purchased here.)
    This terminatioon vote could easily be one item the board would hide.
    SO read and work to understand your termination section, talk to your neighbors re that info, and be sure the vote is done at the proper time. Do not rely on the board to be upstanding, you see how they are treating you now (By refusal to approve even after you remove the cp, then submit plans). Since they have done this to you, they have probably done similar to others previously, or will if they get away with doing it to you.

    You may have to work for months beforehand to be sure the vote is done in the proper time, so do not tarry. If you have 20 years, it may be that your vote should take place sometime in 2009. That gives you about a year to inform the other members and get things set up, maybe over the board's objections.
  • 01-07-2008 3:44 PM In reply to

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    re: HOA Issues-Help

    Now here's my $0.02:

    If they take you to court for installing a carport without permission, and the docs very clearly have a process to get permission, the odds are in the HOA's favor to win, and if they win they will probably get attorneys fees added to the amount of judgment against you.

    no mention of atty fees any where in the CCR's or the by laws. and ive checked in SC HOA's cant recover atty fees from PO's. Thanks though for you $0.02.
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