The extent of HOA intrusion into a member's life

Most members of HOAs do not realize the extent to which the courts, in their preference for the common laws of equitable servitudes over constitutional law, can affect the member’s financial obligations and freedom of choice in personal behavior.  It is only a matter of time before they will be affected, and discover, too late, the extent of the loss of their individual freedoms, and the extent of the legal power granted to the HOAs by the legislatures and courts.  Powers not spelled out in the binding CC&Rs contract that is alleged to have been openly and freely consented to by the homeowner.

A re-examination of the California appellate decision regarding the Desert Cove mobile home community is an eye-opener and a warning for all members in every state, and reveals the extent of the legal powers granted to your HOA board.  It also reveals the extent of the lack of openness or transparency by the California courts in keeping its ruling away from public awareness.  The California Supreme Court refused to hear an appeal and a request to publicize the appellate ruling.  This disturbing 2003 decision, (OSCA Development v. Blehm, E032843, Cal. App. 4th Div. 2, Oct. 14, 2003; Supreme Court denial, S120748, Feb. 4, 2004), can only be found on my website at Desert Cove.

In short, this case centered on the following question: 

To what extent can HOA members be forced to pay assessments to a country club owned by the developer, not part of the HOA subdivision, and operated as a for-profit enterprise that is open to the public?

 

Article 19 of the CC&Rs played an important role in answering this question.  Initially, Article 19 simply created a voluntary membership HOA.  And as has occurred in numerous other instances of HOA power and control over the electoral process and uneducated membership, the HOA board quickly reacted as recorded in the court decision,

Before this court issued its final opinion, the Association by majority vote adopted an amendment to article 19. The amendment includes the following paragraph: “Each owner by acceptance of the deed to the Owner’s Residential Lot, is deemed to covenant and agree to pay to OSCA Development Company or its successor in interest the maintenance assessments duly levied by OSCA Development Company pursuant to these CC&Rs.

 

The court held that,

By purchasing property within the Desert Crest community, the homeowners accepted Article 19, even as amended in accordance with the majority vote standard established by the declaration of restrictions, and are bound by the membership fees requirement. Nothing prevents the homeowners from making further attempts to change the language in either article 19 or the provision authorizing amendment.

And the court gave the following opinion,

We conclude that the CC&R’s for a residential development that require the payment of a mandatory assessment far a country club located adjacent to or within the development create a mutual relationship of corresponding benefits and burdens, and, therefore, is a covenant that touches and concerns the land. We also conclude that, upon satisfying the criteria for a covenant that runs with the land, there is no additional requirement that the recreational facilities must be owned by the homeowners or the homeowners association in order to establish its validity or enforceability. As in this case, a privately-owned country club may demand payment of the fees and enforce its lien for unpaid fees under the CC&R’s.

 

There are two important factors in this decision to be noted that have a tremendous impact on constitutional protections, and reflect a government not subject to the Constitution.  First, implicit in the above decision by the court is the legality of “ex post facto” amendments:  amendments to the CC&Rs that alter the homeowner contract and bind the homeowner without his consent to the new contract.  An action that is not permitted under the Constitution for government entities.

Second, is the reliance on “covenants running with the land”, a legal doctrine established under the real estate common laws of equitable servitudes (see Restatement Third, Property:Servitudes).  The California court applied the legalese of the equitable servitude definitions and interpretations of covenants as binding on an undemocratic governmental structure, the HOA, and on citizens being held subject to these regimes.

This is but one instance of the extent of powers granted to the HOA by the courts and state legislatures.  Powers not explicitly agreed to in the supposed CC&R contract, nor that can be found to be a reasonable expectation of board powers.

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Published in: on December 27, 2009 at 9:05 am  Comments (3)  

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3 CommentsLeave a comment

  1. If HOA members must pay for something that they don’t own then what’s next ? If the developer decides to buy a car dealership across town or even in another State and give the HOA members a $1.00 discount. Does that mean it “benefit’s them” and therefore they must pay another assesement to benefit the car dealership ?

  2. Mr. Staropoli,
    I am havinf a problem with my HOA. I have MS. I purchased a home in a deed restricted community Jan. 8, 2008. The central air conditioner was charged up to pass inspection, although my inspection report states the unit does not get as cold as it should. Well it lasted the 1st summer and after that it no longer cooled. The unit is 20 yrs old and I was advised nto to spend money on trying to repair it. My HOA printed my name, street, community and my medical diagnosis in the monthly newsletter that is didtributed to all the communities owned by Beacon Woods. The information is also available on the internet. There are many lies contained in the newsletter minutes. The HOA recorded the meeting and the President of the HOA had a problem with me recording it on my camera. I am glad I did. The newsletter also mentioned financial information that is also not accirate. They have made me a target in my own home. The world now knows a single disabled woman lives in this house. They also referred to me as unemployed, I am not unemployed. I am a retired school teacher. I was so upset when I read those minutes I cried. If you respond back to me I will send you a copy of them. I have read previous minutes from the HOA and non of them contained identifying information. By the way, I am African American. My subdivision contains 480 homes and there are only 3 black families that own homes here. I know they have violated my medical and financial privacy. Please contact me.
    Mae Kathryn Nolan
    727-378-5332


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