HOAs: The Good of the Many Versus the Rights of the Individual
Podcast episode by Shawn Glen
What are the challenges of HOAs when it comes to individual property rights versus the rights of the many members of the association. Which trumps what, the rights of the individual or the rights of the many?
What’s the purpose of an HOA? Arguably, HOAs exist to promote the good of the many. For example, an HOA can promote recreational opportunities within a community, such as providing its members with parks, or perhaps trails for biking, hiking, horseback riding or four wheeling; or maybe access to waterfront property; or promoting community events.
An HOA’s purpose may also include maintaining property values in the neighborhood by preventing nuisances. Who wouldn’t want to live in a beautiful neighborhood, with great landscaping, no trash in the front yards, no used appliances resting in the neighbors’ driveways? And who really wants to have to drive around 18 wheelers, the local concrete worker’s trailers, or dirty horse or ATV trailers parked in the roads? And isn’t it great to live in a beautiful neighborhood with obvious aesthetic standards? Architectural consistency? Shady trees in the boulevards? No houses painted a mishmash of hunter orange, virulent purple and forest green siding?
And what about other property services? Many times an HOA can obtain home services at a reduced price because the multiple lots are being served. Who wouldn’t love to get lawncare, snow removal for driveways and walkways, and biennial sprinkler servicing for a reduced price? Think of all the time you could save not having to run to the gas station for just the right lawnmower gas! And what about sitting inside sipping your beverage of choice while some energetic young person removes snow from your driveways and walkways? Wouldn’t everyone love to have the benefit of an ice-free driveway without the burden of the sore backs and arms and legs that come with shoveling your own snow? HOAs can provide security services as well, including private security guards and private fences and gates to limit entrance into your neighborhood.
However, with all these benefits come some dangers. HOA board members may not know or understand the limits of HOAs authority especially when that authority runs up against private property rights. Additionally, let’s face it it’s hard to get people to run for a position on an HOA board. Because of this, sometimes there’s a strong personality on the board, one who has visions of “what is in the common good,” who is self-confident is charismatic and has had long tenure on the board. In that case, this person cannot only have the power of the vision but also has the leadership ability and history to get up a head of steam and push his or her own vision through even when it conflicts with the board’s internal operating regulations and the private property rights of an HOAs members. Sometimes this means trouble.
All these factors could explain some of the conflict that frequently arises between and HOA board and the members of the HOA. This can result in the conflict between a perception of what is good for the many and the private real property rights of one or more HOA members.
So what trumps what: the good of the many? Or the individual rights of the few? For example, say an HOA member owns 10 acres on a mountaintop that used to belong to a logging company. Polly property owner really looked into the title of her property before she bought it. She confirmed that no easements existed on that property for anybody. After she purchased it, she reveled watching the wildlife go back and forth on the trails on her property, fishing in the streams on her property, and watching the elk and deer and moose browse in the Meadows at sunset on her property. Polly was happy to share these trails and streams with her neighbors, the other members of the HOA. She also loved that the HOA plowed the road to her house, so she could get to her mailbox when it snowed, and that her dues paid for the water that served her home.
She was unaware that Joe, the HOA president, a longtime resident of the HOA, had a wife who loved to hike. Polly was also unaware that president Joe was convinced that the HOA had easements for all the HOA members to hike on all the trails on the property of ALL the HOA members, including Polly’s. To fish in all the streams of ALL the HOA members, including Polly’s. And take their dogs and their four wheelers to the Meadows to watch the elk, the deer, and the moose on the property of ALL the HOA members, including Polly’s.
President Joe based his opinions on an old map that he and the other HOA members received when they purchased their property in the HOA. President Joe had not asked the title company to confirm exactly what the HOA owned, nor did he propose to the board that they hire an attorney to review the title report and confirm whether the board had any easements to the trails, the stream, or the meadow on the property of the HOA members, including Polly’s property. President. Joe had a vision that all the trails, all the streams and all the Meadows should be accessible to all the homeowners, including his wife who loved to hike, at any point in time.
Polly was totally unaware of president Joe’s vision.
Imagine Polly’s surprise when she returned home from work on a Tuesday night to find Pres. Joe and a group of homeowners who were excited to help improve “the HOAs trails” cutting down trees and moving dirt on Polly’s property to make a trail head handicapped accessible.
Polly was livid. Her first call was to the sheriff. Her second call was to the office of an attorney who was well-versed in real estate issues, to file a lawsuit against Pres. Joe and the HOA board. I’m glad to say the sheriff warned everyone, arrested no one, and later was invited to be the guest of honor at the annual HOA barbecue. I’m also glad to say that the attorney Polly contacted was smart enough not to jump immediately into litigating, but instead to give her client a legal opinion letter. A roadmap of the facts, the law, the pros and cons of litigating, and Polly’s legal options in dealing with Pres. Joe and the power of his vision. Polly authorized her lawyer to share portions of the legal opinion letter with Pres. Joe.
Pres. Joe recognized the error of his ways, and modified his vision. The legal opinion letter Polly shared with him let him know that he had trespassed not only on Polly’s property but also jeopardized the neighborly relationship between him and Polly. The HOA board, after reading the legal opinion letter understood that they not only needed to be more familiar with their own bylaws and CC & Rs, but also that they had the duty to protect their own real property and those of their neighbors from overreaching visions. And as for Polly: by not jumping to litigate but instead educating herself and her HOA board members, she saved enough money to put a down payment on president Joe’s property when it came up for sale.
The lesson here is this: know how your HOA works. Become familiar with its bylaws and its CC & R’s. Assume the best about your HOA members and your HOAs Board of Directors. They are usually volunteers who simply want to do what’s right. They may not know how to do their best, but they probably are doing their best. Don’t jump to litigation; instead defend your property rights with the facts and the law. And finally remember to CYA: Call Your Attorney! Have a great day.
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