If you own a house in a planned residential development, you're a homeowner. All of the homeowners in the development typically belong to the homeowners' association (HOA) for that development. Membership is automatic with the purchase of a home in the development. As a homeowner and a member of a HOA, you have rights and responsibilities.

What is a Homeowners' Association?

A homeowners' association is a non-profit corporation or unincorporated association set up to manage the common property of a residential real estate development. Its goal is to keep property values and the quality of life in your condo building or subdivision as high as possible.

HOAs that are corporations are run like any other corporation, with a board of directors (elected by the members), meetings, minutes, strict record-keeping and annual budgets. HOAs that are unincorporated associations are run in a similar manner, as indicated in the articles or bylaws of the association.

HOAs are created under and are regulated by state laws. Some states require that a developer of a common interest real estate development file information about the proposed plan with the state's real estate department and get approval before lots are sold. State laws also require that the first meeting of the HOA occur within a certain time after the first unit is sold. At this meeting, the homeowners are required to elect their first board of directors for the HOA.

Elections

Homeowners have the right to elect a board of directors to lead the HOA. They each have as many votes as the number of properties they own in the development. At the beginning of the sale process, the developer typically has more votes than do the individual homeowners. However, the balance of votes changes as more properties are sold to individual homeowners.

Because the first board of directors is elected at the first meeting of the HOA, the names of candidates should be circulated before the first election. If a property owner has more than one vote and is going to use more than one vote per candidate (which is called cumulative voting), the owner must say so before the election begins.

Board members serve for the length of time indicated in the HOA's bylaws. The other homeowners can remove individual board members in limited circumstances.

Other Rights

In addition to the right and responsibility of belonging to the HOA, you, as a homeowner, have the right to:

• Use common property, such as a common clubhouse and recreational facilities
• Access any disciplinary process set up by the HOA
• Enforce any covenants or agreements that affect your property directly
• Challenge any rule changes made by the HOA

Responsibilities

As a homeowner, you have a responsibility to comply with the provisions of the declaration of covenants, conditions and restrictions (CC&Rs), which is a document that you signed when you purchased the property. The CC&Rs set out restrictions on what you can do with your property, such as what colors you can paint your house and how high your fence can be.

Dealing with the HOA Board

If you want to do something you're not sure is acceptable under the CC&Rs, rules, or you want to stop your neighbor from doing something annoying, you'll want to start by reading the CC&Rs in detail. There may also be by-laws to look through to see if your particular situation is addressed.

If the association board is not following the rules, you should talk to an individual board member and then follow the conversation up with a letter detailing the exact issue. Maybe the board members don't know that they are doing something wrong.

If you want to do something outside of the rules, you will probably have to ask the board for a "variance" and go through a formal hearing process. Getting other homeowners to support your position can be very helpful in doing this.

If the association board won't allow you a variance, you can try to change-called "amending"-the CC&Rs or bylaws. The documents themselves should detail the procedures required for changing these documents. However, the process can be expensive, and usually requires the agreement of most HOA members.

If all else fails, you've always got the option of trying to vote in new board members at the next HOA election.

Taking It to Court

If you have a legal claim against your neighbor or HOA, you have the right to sue them in court. However, suing your neighbor or HOA should always be a last resort, for the obvious reason that it's tough to litigate against someone who lives so close and you have to see everyday, not to mention the possible expense of a lawsuit and the time involved.

If you've exhausted all your other options, look for a lawyer who has experience dealing with homeowners' associations, and who encourages you to keep negotiating rather than jump right into court.

With work and patience, most HOA problems can be resolved.

Questions for the Attorneys at Halpern Rodriguez, LLP

• Do the board members of a homeowners' association have to own property in the development?
• My son broke the HOA's rules for the neighborhood swimming pool, and the HOA board told him that he could not use the pool for the rest of the year. Can the board do that?
• If the HOA board allowed my neighbor to build a fence that does not comply with the restrictions of the CC&Rs, does the board also have to give me the same kind of variance?

 

Source: Lawyers.com^sm