HOAs: communal properties

Let’s take a look at this topic from the average home buyer’s perspective, and not a legal one. This is a valid approach pertaining to the buyer’s lack of legal expertise and understanding.

The legal myth that you own your home in fee simple absolute is false, since the law now talks of property interests separately from ownership or title. That is, you may own the property but have very little property interest rights, as we see with HOA property ownership.

Each homeowner in an HOA has a property interest in the common property as well as in the private prperty of each of the other owners. If you don’t believe that, then why are you held to a decision affecting your private property based on a vote, a low as 51%, of your neighbors, that you did not consent to? Similarly, you affect the property interests every other homeowner’s private property.

I referred to this as a communal social and political structure — you all don’t need to eat in one big common mess hall to be in a communal society. Look at it this way, the communal interests are very much like community property rights between husband and wife — what one does affects the other. So, too, with your fellow HOA members.

One homeowner argues that each homeowner within the HOA holds an interest in each of the other owners’ private property, but it is not an interest per se as it is an interest in how the properties are maintained and how they appear from an aesthetic perspective. I think the argument can be made that CC&Rs that require the votes of others on how you paint your home or how you maintain your landcaping definitely “touch and concern” your land. Also, being able to park any vehicle on your driveway, would also touch and concern your land.

Such restrictions are covenants and therefore touch and concern your land, making home ownership in an HOA much like being married to your neighbors.

Were you told of this legal relationship? Did you fully comprehend the consequences of your “agreement”? Were you told that the proper approval of an amendment to the CC&Rs can substantially change your property interests, contrary to your wishes, like join an independent country club?

Published in: on July 18, 2005 at 4:41 pm  Leave a Comment  

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