Joanne McCarn owns her home, but her homeowners association has taken it over and calls the sheriff’s office if she comes near the property. What’s more, the Bridgewater Community Association evicted her tenant, changed the locks and moved in its own renter. “This is not a foreclosed house,” McCarn said. “This is still my house. It’s unfair how much power the HOA has. It’s so surreal to me.”
Everyone should be aware of the slight-of-hand redefinition of the real estate ownership known as “fee simple.” Read your deed that states the title to your HOA controlled property. It commonly says “in fee simple,” where, at the state time and in the same deed, you surrender so much of your rights and interests. And legally without the need to see, or read, or consent to this surrender. Just take your deed with that two line, un-emphasized statement that says, “subject to covenant, conditions and restrictions,” followed by “as may apply” or “if any.”
This legal real estate form of title/ownership meant an “absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of “fee,” but is used to show the fee (absolute title) is not a “conditional fee” (my emphasis). So, what does “fee simple” really mean in regard to these gross surrenders of rights and interests in your new HOA controlled home?
Returning to this nasty incident by the HOA,
In Solomon’s view [an HOA attorney], that doesn’t make it right — or legal. It’s more a measure of how complicated the housing bust has grown.
Judges rely on what rights attorneys tell them their clients are afforded under the law,” Solomon said. “If there’s no attorney on the other side to argue that it’s wrong, the judge most often takes the word of the attorney and grants the motion. Plus, these judges hearing these cases usually are not experts in real estate law.” [Nor HOA law].
Solomon and other legal authorities contacted by the Tribune say the eviction may be legal. The reason: McCarn moved a tenant into the house without paying off a lien the association had imposed. But there are no legal grounds, Solomon said, for the association to change locks and move in another tenant. The association imposed the lien in 2009, but McCarn said she never learned about it until later, when the association persuaded a court to evict her tenant for nonpayment of the rent. The association had demanded that the tenant stop paying rent to McCarn and pay it instead.
Just another “gotcha” when it comes to the powers of HOAs, protected by state public policy. Just another example of an innocent homeowner being forced to protect her rights by going to court. And hopefully, as quoted above by attorney Solomon, she brings a competent lawyer with her.