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You're still avoiding a simple question. I am telling you point blank that my neighborhood CCR does not have provision to fine people for certain things or to place a lien. If you would cooperate on this question I'd be glad to send you a link to the document. My question is, do you think it is proper for the law to allow MY HOA to fine people and place liens that lead to foreclosures for items in the CCRs that do not specify fines and liens are allowed? I think this is a simple question. And yes, we were formed before 1999....
The law allows practically anyone to sue anyone for anything. There isn't anything you can do about that. However the bigger question is what is their chances of winning that lawsuit. If you believe they have overstepped their bounds because there are no CCRs that cover this then call their bluff. You can ignore their threats, take it to a lawyer and tell them to stop with the threats, or try to work it out in a friendly manner.
The law allows practically anyone to sue anyone for anything. There isn't anything you can do about that. However the bigger question is what is their chances of winning that lawsuit. If you believe they have overstepped their bounds because there are no CCRs that cover this then call their bluff. You can ignore their threats, take it to a lawyer and tell them to stop with the threats, or try to work it out in a friendly manner.
Laws sometimes change but should not change to such an extreme to impose undue burdens on folks that didn't exist before. This is the point GCHARLOTTE is stressing and yantosh22 you are not specifically answering the question.
It is an unfair law to RETRO stuff that didn't exist before and the BEFORE is what you CONTRACTED for. It's like saying you paid $10 last week for an item that now costs $12 and the folks that charged you are going to come after you to pay the $2 for this weeks price difference..No difference in what THEY are trying to do with fines, liens, etc.. my example is a little skewed but it certainly puts the perspective of the whole deal. That is the cost of last weeks WHY are you wanting me to pay THIS weeks price when I already PAID..PAID was the contract closure. You can't come after me this week for last weeks price..
I am not ignoring it. I already said that retroactive taking of property rights is generally not allowed and I don't believe the state allows this in this case. This doesn't mean they can't still try to sue you but if the law doesn't allow it, they will lose their case in court. They may also be liable for damages to you depending upon the circumstances. They may also get additional rulings against them. Going to court should not be taken lightly by either side. It means that both parties lose all control over the outcome.
You have not given us information in this topic that explains clearly what you are facing. In fact some of your responses are quite bizarre given what is usually a pretty simple subject. I recommend that you seek out a lawyer who can help you.
I am not ignoring it. I already said that retroactive taking of property rights is generally not allowed and I don't believe the state allows this in this case. This doesn't mean they can't still try to sue you but if the law doesn't allow it, they will lose their case in court. They may also be liable for damages to you depending upon the circumstances. They may also get additional rulings against them. Going to court should not be taken lightly by either side. It means that both parties lose all control over the outcome.
What happened after that last case I posted is the General Assembly changed the law to allow fines for areas that specifically did not mention them in the CCRs. I think this is unconstitutional but I think we're basically on the same page. In other words generally taking of property rights is not allowed.
So the law used to read that if the CCRs did not allow for fines and liens on something then they couldn't fine or lien if the HOA was created before 1999. In 2004 they changed the law in response to a supreme court ruling to say if the CCRs did not say otherwise then they are allowed to fine.
This is an industry victory and in fact the industry wrote the law. Right here in Charlotte mostly.
What basically happened is HOAs couldn't get CCRs amended by 80% in order to fine when the CCRs didn't allow for them so they simply lobbied and got the law changed. This means that today, right now, you can read CCRs in older neighborhoods that have no mention of fines. If you are not aware of the 47F loophole then too bad. I'm sorry but I don't think you should have to be that smart in order to compare neighborhoods.
The lawfirm that takes credit for this also used to charge me $100 everytime I called them to discuss the first time they tried to do the lien bit. The Appeals Court in NC made them knock that off (Reid v. Ayers, 531 SE 2d 231 - NC: Court of Appeals 2000). The idea is you can't charge someone for legal fees until you win the case. What they were doing is charging everytime you contacted them to discuss it and then not allowing you to pay the original balance until you paid the legal fees too. This also violates the 10% rule for collections or at least at the time.
This is what the court said:
"In closing, we believe the tactics used by defendants in trying to collect these delinquent assessments were indefensible, whether done in ignorance of, or disdain for, the law"
They are talking about the same law firm that wrote 47F. And it's the same lawfirm that maintains several shadow companies for HOA foreclosures one of which they never filed annual reports with the NC secretary of state which dissolved one of the companies for that.
As long as these guys are a big player in Charlotte, anyone in an HOA should be aware of them. Not because HOAs are necessarily evil but because management companies often make mistakes and lawfirms can have "ignorance of, or disdain for, the law".
And here's a ruling about the law change that allows fines and liens if fines and liens are not mentioned in pre-1999 CCRs:
"All of the events in question occurred after 17 July 2004, when the Act was amended. Accordingly, we hold that petitioner does have the power to levy fines against respondent, to file a claim of lien, and foreclose upon that claim of lien."
- RiverPointe Homeowners Ass'n v. Mallory, 656 SE 2d 659 - NC: Court of Appeals 2008
The homeowner in this case (who appeared pro se, poor thing) made the mistake of only going based on CCRs and not reading every case decided by the appellate courts in NC. She did not know that the attorney she was facing actually worked for the same lawfirm that wrote the law, made sure the law got fine tuned in their favor and was slapped down by the appeals court as quoted in my last post.
I am not ignoring it. I already said that retroactive taking of property rights is generally not allowed and I don't believe the state allows this in this case. This doesn't mean they can't still try to sue you but if the law doesn't allow it, they will lose their case in court. They may also be liable for damages to you depending upon the circumstances. They may also get additional rulings against them. Going to court should not be taken lightly by either side. It means that both parties lose all control over the outcome.
You have not given us information in this topic that explains clearly what you are facing. In fact some of your responses are quite bizarre given what is usually a pretty simple subject. I recommend that you seek out a lawyer who can help you.
You keep saying "responses bizarre, bewildering" when I've been quite FACTUAL.
The problem was trying to find out how an HOA is implied from a CC&R that doesn't have HOA stuff in it. What I realized from discussion is the use of the EASEMENT as being determined as HOA language. And as you have said already and I totally agree with..EASEMENTs are for RIGHTS and not contracts basically. These easements are for only 2 of the 34 lot owners.
It is out of the ordinary for sure what has happened to us in the neighborhood. The group decided overnight that we had HOA language based on the easement saying 1/34th. That advise came from Carolina Association Management.
You missed the posts that already mentioned I have a lawyer and that he wrote a letter to keep the lien from taking place. It was determined we owe nothing and the amendment they signed we don't qualify for.
Great stuff has been coming of all this discussion. But I must say most of the discussions really don't apply to us..but nice to know! Some stuff I have no clue as to what you are talking about. I think I'll always use this thread for great reference point. Thanks!!
.....
"All of the events in question occurred after 17 July 2004, when the Act was amended. Accordingly, we hold that petitioner does have the power to levy fines against respondent, to file a claim of lien, and foreclose upon that claim of lien."
- RiverPointe Homeowners Ass'n v. Mallory, 656 SE 2d 659 - NC: Court of Appeals 2008.....
I read through that court decision and I understand your point of view now. However the court ruled that the change to the NC law was not taking one's rights under the US Constitution as it only provided a method for a HOA to collect fines and past due dues. (where it wasn't already specified or forbidden) In this case, it does not appear the homeowner was contesting the violations had been made, but she had decided it didn't matter because the CCRs didn't specifically state they could file a lien to collect the fines. Note: the homeowner was representing herself (no lawyer) in an appeals court. I think the lessen to be learned here, is if the homeowner had decided to respond to the original complaint, she could have saved herself a huge amount of time and money.
Note that this is still consistent with what I have been stating, but you and I were on different pages. I was arguing that you first had to see if the HOA even has any legal authority over you as found in the deeded property records. Not all HOAs have this, and hence are pretty much toothless. Usually the difference will be if they collect dues or not.
I read through that court decision and I understand your point of view now. However the court ruled that the change to the NC law was not taking one's rights under the US Constitution as it only provided a method for a HOA to collect fines and past due dues. (where it wasn't already specified or forbidden) In this case, it does not appear the homeowner was contesting the violations had been made, but she had decided it didn't matter because the CCRs didn't specifically state they could file a lien to collect the fines. Note: the homeowner was representing herself (no lawyer) in an appeals court. I think the lessen to be learned here, is if the homeowner had decided to respond to the original complaint, she could have saved herself a huge amount of time and money.
Note that this is still consistent with what I have been stating, but you and I were on different pages. I was arguing that you first had to see if the HOA even has any legal authority over you as found in the deeded property records. Not all HOAs have this, and hence are pretty much toothless. Usually the difference will be if they collect dues or not.
I don't know what the underlying issue was but the same lawfirm tells me that in order for me to find out if I'm in violation I'd need to sue and they'd take it to the appeals court. Not a nice bunch though they all seem to wear their faith on their sleeves which is another reason to run away.
I think it would be good if there was some sort of formal disclaimer that came with buying into an HOA neighborhood that explained these risks. I don't think most people would think they could be fined if the CCRs didn't say that was the case. You shouldn't have to have a lawyer for that.
I hope everything worked out for that person as I hope it does for the OP.
Some closing attorneys do a better job at informing than others. At least we have the internet now compared to trying to search this stuff in person going through actual deed books ten years ago.
My closing attorney didn't mention any of this but a neighbor's has everything printed out including the CCRs that was provided to him at closing.
Finally, this neighborhood had several builders and there are multiple CCRs. But the management company only has one you can download which implies everyone is the same.
I don't know why things are so sloppy and sometimes secretive. Hopefully one day I can help shine light on these types of things so people can be better educated. Not take sides, just show people what's up including which HOAs are faster on the trigger to FC.
I would say that you should investigate this before you even make an offer on a place. Closing time is way too late. Deed restrictions affect your usage of the property and anyone purchasing a home should understand if there are any before making an offer. It's not just HOA issues, but you could have a utility easement where you were thinking of putting a pool or a storage shed. It could be these easements might make the property worth less to you.
I wouldn't fault the closing attorney. I would fault the real estate agents who presented the property. They should have told you about these issues and helped you to obtain the CCRs before you made an offer on the place. Given they are making 6% on the deal, it's not unreasonable to expect this from them.
Happy to say as of Friday , March 11 NO lien put on our home. Not heard from lawyer yet..Wonder if he will respond?? Not required but nice to know!!
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