by Destin Valine, esq.

Buying a house within an HOA

Most people think that dealing with an HOA is a necessary evil on their path to dream-home-ownership. It’s the perfect passive-aggressive tool to make sure your neighbor mows his yard. You always keep your yard mowed, so you’ll never run afoul of those rules, right?

We are very busy people. It is only natural to cut-out activities that are time consuming or don’t seem to yield benefit. Reading the HOA guidelines might seem arduous and unnecessary. But reading the rules to your future neighborhood can help you avoid an expensive mistake. Hidden deep in these documents can lurk strange, idiosyncratic rules that could bite you when you least expect it. It is terrible to come home and find taped to your door an HOA violation notice, giving you a few days to cure something you didn’t even know was wrong to do, and promising huge fines if you don’t.

Buyer’s access to HOA documents on a pending purchase come in three flavors. Either, as in many states, the state’s residential real estate purchase laws require a seller to provide copies of HOA documents to buyers. While, in other states the state-level Realtor’s association has promulgated forms that include this right. Otherwise you can use your own forms or customized contracts to opt-in. Nearly everything is subject to contract, and this is a valuable buyer’s tool.

(2) If the Property is a condominium or is located in a planned development or other common interest subdivision, Seller has [3] Days After Acceptance to request from the HOA (C.A.R. Form HOA1): (i) Copies of any documents required by Law; (ii) disclosure of any pending or anticipated claim or litigation by or against the HOA; (iii) a statement containing the location and number of designated parking and storage spaces; (iv) Copies of the most recent 12 months of HOA minutes for regular and special meetings; (v) the names and contact information of all HOAs governing the Property (collectively, “CI Disclosures”); (vi) private transfer fees; (vii) Pet fee restrictions; and (viii) smoking restrictions. Seller shall itemize and Deliver to Buyer all CI Disclosures received from the HOA and any CI Disclosures in Seller’s possession. Buyer’s approval of CI Disclosures is a contingency of this Agreement as specified in paragraph 14B(3). The Party specified in paragraph 7, as directed by escrow, shall deposit funds into escrow or direct to HOA or management company to pay for any of the above

Sample from California’s Promulgated Form (emphasis added)

Your entry into a neighborhood with an HOA places you in a contract with the association. As a party to that contract you have rights and responsibilities. Understanding the responsibilities, you’ll need to undertake can save you from grief and regret. Read carefully, but do not fear. Most HOAs have modest requirements and fair redress procedures. But what is fair? What do you need to look out for?

Pet problems

In Roswell, Georgia a family was informed by their HOA that their family’s pet chickens must go. (http://www.cbs46.com/story/33367963/roswell-family-told-to-get-rid-of-pet-chickens) In an action started by their HOA, they were told to rid themselves of their pets within 10 days. Failure to do so would result in a $100 per day fine until the chickens were gone. Chickens in Roswell were allowed by zoning. In fact, the HOA documents didn’t specifically disallow chickens from residents’ property. What gave the HOA the right to make this demand? A provision in the covenants that required homeowners to request approval before placing any style of outbuilding on their property. The chicken coop was such a building. Arguably, the chickens also don’t qualify as a “common domesticated animal.”

More important to note from the vague language of the HOA documents: what qualifies as an outdoor structure? A treehouse? A utility shed? A chicken coop? A doghouse? A child’s playset? And what exactly qualifies as a commonly domesticated animal? Surely a cat and dog. Chickens? Snakes? Ferrets? Mice? Birds?

Even if you have an approved domesticated animal, don’t think you’re out of the woods. Some HOAs control the breed of dog you can own. In South Carolina, a woman was forced to gather the signature of local veterinarians to prove that her beloved pet pup was not the feared pit bull someone on her block thought it was. http://www.live5news.com/story/32808138/resident-fights-hoa-on-pit-bull-ban-argues-her-dog-isnt-a-pit-bull.

Let’s assume you have a dog, an approved animal, and your dog is not on the HOA’s banned breed list. But, while you are at work, he barks when the UPS guy drives down the street. An idiosyncratic neighbor could claim your animal is a nuisance. That neighbor could report your dog to either the HOA or the police, or both. When the police cite you for the actions of your dogs, constitutional guarantees kick-in. But, HOA grievances short-cut due process protections afforded by government civil forfeiture procedures. You agree and are bound to these short-cuts, the HOA guidelines for grievances and appeals, through your privity with the association as recorded against your deed. You agree to allow the association to enforce civil penalties, escalating fines, and even forfeit. Not only can these rules be pricey, they can shift the burden, requiring you to show proof why your beloved pet should not be seized. It’s important to know what the situation that you are getting yourself and your pets involved.

My wife and I are dog lovers. It is terrifying to think that we could lose our buddies because they couldn’t behave themselves to an abstract and amorphous “community” standard. When you check the animal provisions of your HOA make sure you (and your animals) can live with the rules.