Invalidating a home owners association


07-Nov-2020 09:13

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If the lien is valid and you can afford to pay it, it may prove less costly than trying to fight it.For example, the woman in Tampa, Florida, may have found it worthwhile to pay the outstanding fees instead of losing her home. You may be withholding payment in good faith because the HOA has not upheld its side of the bargain, for example, by failing to maintain the common areas, thereby entitling you to offset some of the outstanding payments.Granting the Association the unilateral power to impose monetary fines, in the absence of official judicial due process, (i.e.- in a court, with a neutral third party considering both sides of the dispute, as opposed to an internal hearing in what amounts to HOA kangaroo court) Granting the Association the unilateral power to collect rent from a unit owner’s tenant, in the absence of official judicial due process, and perhaps in violation of the lease agreement ( a contract between owner and tenant), Granting the Association the unilateral power to foreclose a lien on private property, for unconscionably small or unsubstantiated debts, and even though the association lacks a collateral interest in the private property, often in the absence of official judicial due process, and without any guarantee that the association will sell the property at a commercially reasonable price, Granting the Association the unilateral power to suspend voting rights of its members in the event of non-payment of a financial obligation to the association, even though those voting rights are necessary to protect the private property rights of member owners, Granting special rights and privileges to the Declarant – Developer, (weighted voting interests, control of the association board, the unilateral right to amend governing documents, the right to waive payment of assessments to reserve accounts, etc.) creating a grave inequity of property rights, Attaching voting rights to property rather than to the persons who reside in a residential community, especially when equal voting rights are denied in matters involving private property rights, Granting the power of a super majority of voting interests to force the termination of the association and sale of units, and taking property without just compensation to the minority unit owners, Granting the Association the unilateral power to enforce restrictive covenants upon use of private property (such as change in rental restrictions or the right to conduct business from home), or unreasonable restrictions upon personal conduct upon private property, Granting the Association the unilateral power to impose additional rules and regulations, with no opportunity for members or non-member residents to consider and mutually agree to new terms of the contract, Granting the Association the right to unilaterally restrict First Amendment rights, including limiting resident rights to free speech and expression with regard to HOA or other political issues, restricting religious liberties that do not infringe upon the rights of others, and prohibiting equal access to common property to entertain viewpoints that oppose those of the HOA board, Granting the Association the unilateral power to Preserve or renew CC&Rs without a vote of full membership, and in the absence of official judicial review, OR Granting any group of individual property owners or any third party the right to impose a mandatory property owners’ association upon properties that are not currently burdened by such restrictions., a homeowner was alleged to have violated provisions contained in the association’s covenants.If you have any questions concerning enforcement of homeowner association covenants or for assistance in reviewing covenants and charting a course of action, please contact attorney Shannon Frank at [email protected] (812) 423-3183, or contact any member of the KDDK Real Estate Law Practice Team. Frank, a Partner at Kahn, Dees, Donovan & Kahn, LLP (KDDK), in Evansville, Indiana, has more than 25 years’ experience in the practice of business law, construction law, estate planning and probate administration, health care law, and real estate law.Shannon takes prides in giving exceptional service to her clients, recognizing that relationships with clients play a significant and essential role in providing tailored and comprehensive legal advice.

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Repay the HOA lien in full, depending on the amount of the lien.

However, despite these facts of HOA living, the courts thus far seem unwilling to entirely invalidate CC&R contracts. Obviously, following the passage of the Fair Housing act of 1968, and Fair Housing Amendments of 1988, a homeowner cannot agree – by private contract such as CC&Rs – to restrict sale or lease of a home to a person of a certain race, religious, or ethnic background.

At some point, such decisions may be overturned, but until then, homeowner consumers are stuck with these semmingly irrational decisions. the courts have demostrated a willingness to invalidate certain clauses and provisions within the CC&Rs. Nor can a home buyer or homeowner agree to any provision in the CC&Rs that would prohibit persons with disabilities, single parents, or families with children (except in officially designated housing for older persons).

The final option is to file for Chapter 13 bankruptcy.

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If the property is worth less than the amount owing on the first mortgage, the homeowner has no equity in the property.

Does this provide homeowner consumers with a viable opportunity to challenge specific restrictive covenants as unreasonable, unconscionable, or unconstitutional? So why can’t other covenants, restrictions, and powers of HOAs be challenged as unconstitutional?



I hardley ever go in there and it always makes me nervous leaving it unattended.… continue reading »


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