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When I signed my mortgage there was a document about the HOA. it is also part of the deed, so automatically it conveys.
And penalties for non performance or non compliance with a contract absolutely are recognized by contract law. To state otherwise shows your ignorance and simple minded windmill tilting against HOAs in a thread that specifically stated was not a debate about HOAs. But whatevs.
When I signed my mortgage there was a document about the HOA. it is also part of the deed, so automatically it conveys.
And penalties for non performance or non compliance with a contract absolutely are recognized by contract law. To state otherwise shows your ignorance and simple minded windmill tilting against HOAs in a thread that specifically stated was not a debate about HOAs. But whatevs.
You did not sign any contract regarding restrictive covenants. They are not negotiable - they are treated as burdening the property you purchased. They aren't "part of the deed" - the deed was subject to them.
Penalty clauses in contracts are typically disregarded unless they can be interpreted as liquidated damages. HOA "fines" are not liquidated damages and are typically purportedly created through documents such as "resolutions" promulgated by management companies, HOA attorneys, and unscrupulous boards.
The management company has contracted with the HOA to collect a late fee if a homeowner is late. So the management companies are looking for ways to pyramid up junk fees. They promote "fines" and the "priority of payment scam" for the purpose pyramiding up junk fees to the detriment of their client HOA corporation as well as the homeowner. The management company uses the priority of payment scam to divert assessment payments and apply them to say a nominal "fine". This leaves the homeowner in arrears on paper which in turn creates a "late fee" for the benefit of the management company. Next the management company-aligned HOA attorney sends a letter because he's been "informed" by the management company that the homeowner is in arrears. The HOA attorney charges attorney fees to the homeowner and demands the homeowner pay the HOA attorney plus management company junk fees in order to avoid foreclosure.
The whole purpose of fining was to create a multiple debt situation on paper that the management company could then manipulate using the "priority of payment scam" (which you promote) to generate fees for itself and the HOA attorney.
If you want to pursue your theory there is no reason why an individual homeowner could not likewise "adopt" their own resolution concerning their property that provides for "fines" against other residents and the HOA Corporation. Many deed restrictions contain unenforceable provisions. Just because something is written doesn't make it so. Unfortunately there are lots of nimrods that believe if they put it on paper and get it filed with the county clerk it somehow becomes valid or enforceable.
Even if one were to deem a charge to be a liquidated damage rather than a penalty, the way it is enforced is going to court. Unscrupulous boards and vendors like to think they are the court or law enforcement empowered to interpret deed restrictions, impose a "fine", and enforce through foreclosure. The management company and HOA attorney are doing it for profit. Board members engage in it due to delusional egos. The fact that they try to entangle bogus charges with assessments to benefit the management company and HOA attorney indicates that the HOA really doesn't need those assessments it claims it needs to have foreclosure power in order to ensure collection.
This isn't a "debate" about HOAs. This was a response to your push to claim "fining powers" on behalf of an HOA. Your proposal did not address the OP's inquiry.
Last edited by IC_deLight; 12-17-2015 at 07:01 AM..
Location: Stuck on the East Coast, hoping to head West
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Quote:
Originally Posted by North Beach Person
Have you read your CCR documents, they usually spell out what the Board can do and the process.
A couple questions:
Repave the driveways or just seal them. A total repaving isn't typically needed unless it's falling apart. Be careful of this one, you may get hit with not a paving but a total tear out and replacement with pervious materials (it's Maryland and I've seen it happen down here the last couple years).
The non-enforcement is another issue. Sometimes a group of owners can ask the Court (District I think) to force the Board to enforce the CCRs. That's dicey and can blow up with the Court dissolving the Board and appointing a receiver to manage the HOA. That's typically would be a lawyer with nothing but billable hours to send.
Yeah, I've been reading thru CCRs and bylaws. This Board is, quite simply, not following them.
I don't care as much about non-enforcement although I find it annoying.
I think they are going for a total tear out and replacement. The Board president mentioned that she has a friend who does this so maybe she can work out a deal. I can't wait.
I live on a shared driveway and our ccrs do clearly state that the six houses that share the driveway are responsible for upkeep, etc. We previously sealed them. It turned in a nightmare because one of the homeowners on my driveway was a hold out. It took a lot of effort to get him to help pay for the project.
I don't know what happens if not everyone agrees. This is not addressed anywhere. This could be a real problem b/c the hold-out home owner just re-paved his individual driveway portion and not the shared portion.
Trouble with suing an HOA or a Condo is the homeowner suing pays 100% of cost of his lawsuit In your case you own 1/100 of the HOA so you pay 1/100 of the legal fees on that side too.
Now if legal fees add up on HOA or they have to make a pay out they are obliged to disclose why. In this case their neighbor sued them and to cover it an assessment is happening. They will give your name out.
And by the way, on-going litigation many banks wont lend while it is going on.
it is a nuclear solution best used in fraud, theft, gross incompetence of the HOA not in minor matters.
Start a facebook page or blogger.com page for free. Send a post card to everyone in the HOA letting them know about it. Get people talking. This is how change happens. You need a large amount of people to agree with you and only a few of you need to take action. You can easily do it anonymously if you fear retaliation.
I think this is a good route to take. Publicity, publicity, publicity.
Doesn't mean it will be "pretty", and I think you need to get a good assessment of how the overall community is feeling about all this. In my HOA, at least at this point in time, the community values "getting along" and doesn't want to elect anyone who is not of that mindset. That will change when a special assessment comes...and it will.
I think this is a good route to take. Publicity, publicity, publicity.
Doesn't mean it will be "pretty", and I think you need to get a good assessment of how the overall community is feeling about all this. In my HOA, at least at this point in time, the community values "getting along" and doesn't want to elect anyone who is not of that mindset. That will change when a special assessment comes...and it will.
Actually right now there is a case in a Trump condo where a owner created a web page to air dirty laundry about condo and he is being sued big time.
I don't think that will solve it. The person should run for President if he wants to change things or at least join board. Even if it is a coupe where secretly he gets votes and proxies behind the scenes
There are people being sued for starting a fb page or a truthful unedited for content newsletter.
As far as suing. Especially with a year left, Bande1122, try to avoid the suit. In many areas there is an unwritten but still spoken awareness for a court not to deal with HOA laws.
There is an unspoken agreement...or sometimes spoken...for law enforcement of any kind to lay low on HOAs in many cases. HOAs keep residents fairly content with less effort on the part of the municipality and law enforcement. Some take care of their own roads, some have security. The amenities keep people entertained while not taxing the county pools and parks, and at the same time, HOA residents still pay for the county amenities. So munis have it made and very few want to disrupt that. I find the fire dept is very helpful when needed. But even LE will attempt to put a resident off in some areas by saying well it's private property so you'll have to be there with us...and many people don't want to be on the scene of a problem with the officer so they say never mind. And,the odd thing is, I have known an officer to actually accept that. Never mind is okay.
So it is possible you could have a lot of expense and anxiety with little result.
Interesting. Thanks for showing me the error of my ways.
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