Pink Flamingos and Purple Houses

One of the first things contributors here like to offer the dazed, confused and bewildered questioners that come to this forum looking for answers in the morass of community associations law is a link to a particular state's laws on the subject. While kind, it is probably more effective to suggest Alka Seltzer and a nice long vacation, preferably somewhere far, far away from any mention of covenants, restrictions and lawsuits. Perhaps it is not well known, or well understood, that most condominium acts do not actually mandate restrictions, but simply allow developers and boards to impose restrictions that run with the land and do not conflict with already established laws. Some take half a stab in the direction of owner protections, but they are not enough to have any clout with the dog catcher, never mind the courts. A few states, California comes to mind, have tinkered with their laws so much, that there is no hope of understanding them, let alone comply with them. Compliance in those states seem to be accidental events and then only when the stars are fully aligned.

For reasons well understood by developers and their attorneys, as well as their accountants and yacht brokers, the state laws benefit only ... the developers. Historically, there seems to have been some befuddlement in the leading legal minds on why these restrictions needed to be encoded like DNA in the governing documents long after the developer had sailed off and the association had firm control. After totally exhausting every possible reason why restrictions might be a good thing, the leading legal lights have finally concluded that restrictions probably aren't a good thing for most living creatures, except developers and association attorneys. And even some of the latter have had to admit that all is not well in Oz after the the Oz HOA took the Wicked Witch of the West to court for leaving her broom overnight in the driveway without a permit.

Wayne Hyatt has been beating the reform drum for almost a decade. A former president of the CAI and a well known developer's lawyer, his advocacy for community association reform is as startling as it is welcome.

An alternative governance approach involves the creation of a more legitimate governance structure than the current corporate model and recognizes the difference between regulation and prohibition. Such a new structure contemplates that the initial governing documents will contain only a limited number, perhaps a severely limited number, of prohibitions and restrictions, including only those restrictions that the developer believes to be vital to the overall community development plan. Wayne S. Hyatt, Balancing Community and Governance: Reforming the Community Association, Presented at CNU 2000 Congress for the New Urbanism, Portland, Oregon, June 17, 2000.

He still has some developer issues to work out, but for the most part, it's a good beginning.

As Mr. Hyatt also helpfully points out, restrictions are bad for property values and tend to give to the whole industry a black eye, where black is not one of the authorized or preferred colors. So what is holding up the change, you may well ask? For starters, boilerplate documents, inertia, an entire trade association called the CAI and the vendors it serves.

What I want to know, is if pink flamingos and purple houses are every homeowners nightmare, why won't just two rules pretty much cover it all? 1. No pink flamingos allowed on lawns or within sight of living humans and 2. No houses may be painted purple.

For those wondering, I am on the covenant reform committee for my condo association. I'll let you know how it goes.

Donna, I apologize. I think my intent was to open some eyes to what I see as the absurdities of community associations, and it came out sideways. Sometimes I imagine an alien being from another planet observing people who buy a house or a condo and then pay the people who govern the place $230.00/month (in my case) to restrict their every action for nonsensical stuff like limiting the number of potted plants on a patio wall or placing a chair under a tree in the common elements to read a book on a lazy summer afternoon. Then it gets worse and the aliens watch the governing bodies fine the person additional monies for breaking these rules, threaten them with attorneys or actually use the owners money to sue the owner. This is all on top of paying the ordinary taxes on both the restricted home and the common elements to the governing municipality.

I mean, what kind of people think this is a great way to live? When people buy a house, they are usually making a housing choice, not a governance choice. The latter is imposed on us through adhesion contracts, meaning that there is no bargaining going on between a prospective buyer and the governing authorities. It's take it or leave it. Housing being what it is, especially in the urban sunbelt areas, there is no real choice when that is the only choice we have unless we want to live 75 miles away and commute 3 hours round trip every day.

We had our "disaster" election 4 years ago, and after two rather bizarre years of Presidential cluelessness, managed to get him to resign the night before the special recall meeting. But apparently you can't go home again, especially when a CAI lawyer is now attending all the board meetings. Prior to the disaster election, the BOD had spent their time and efforts on maintaining the grounds and infrastructure, rather than the behavior of the residents. There were years where our legal expenses equaled zero. It was believed that if we were old enough to have a mortgage or outright own our condos, we could behave appropriately and settle any differences amongst ourselves. And not knowing any better, that's pretty much what we did. Until just recently when the housing bubble burst, we had almost 40 years of putting a sign out one night and selling the next day. Even now, we have not had a drop in our values, nor has the neighborhood we are in. We're urban, eclectic, diverse and until recently, relaxed.

When the latest bright thoughts of the attorney and his new rules hit the pavement in March, so many of us notified the BOD that we were coming to their next meeting they had to hold it by the pool to accommodate all of us. What came out was not a bitch session about the rules, but a lot of reflection on what happened to the community spirit that all of us had appreciated so much. Some said they were thinking about moving and others kept asking, why are we doing this. The attorney volunteered it was because our governing docs said we had to. And that's the reason for the covenant reform committee. I read everything I could get my hands on regarding community association governance, and after months of reading, I have to admit that I was shocked at what I found out.

There is no need for the dissension, disputes, conflicts, lawsuits and assorted other, sometimes brutal, control of people in homeowner associations. We are not such idiots that just by moving into one requires a multitude of rules and regulations that encompass at least three sets of governing documents and two sections in a states code of laws to control our behavior. I don't blame the boards of directors, either. They are untrained volunteers that are guided by the professionals who seem to know a lot more about what the babble means in the governing docs than they do.

The thing is, most people don't move into a community begging for rules. Much of the time, they are shocked at the rules they find. And if the purpose of those rules is to maintain and enhance the value of the property, well, let's just say that the absolute best that can be hoped for is that the rules won't reduce the value. And really, the best way to maintain that value is to put the money into the grounds and infrastructure of the community, not the attorneys and courts, which is where much of it is going now.

Looking at the bigger picture is disconcerting, also. We're raising a whole new generation of kids that believe the best way to deal with people, who may also be our friends and neighbors, is to report them to a Board of Directors.

Maybe some people feel better when there are certain rules and regulations that restrict behavior, and don't mind if their own behavior is restricted because it's more important to restrict their neighbors. I don't mean to disparage their thinking, but there should at least be a choice between the two types.

I don't know how Mr. Hyatt's influence has worked out. The irony is that he is the registered agent on our 1977 version of the bylaws and articles of incorporation, which was apparently before he saw the error of his ways. I'm looking for anyone that might provide some sort of template for us to follow in our governing docs. So far, all the best and bright legal lights want to change the laws of the states, which I'm not against. But in the absence of any compelling evidence that such change is forthcoming, we are reforming our covenants so that we don't go through this again.

Thanks for listening. And again, I apologize if I sounded hostile. It was not my conscious intent. And I welcome any and all comments, pro or con, to my arguments.

I agree with Glen although I tilt more strongly towards Common Areas being the source of the problem.

Nearly all HOAs have Common Areas and, when you share ownership of something, you are forced closer to those people than if you don't. Corporate regulation (a.k.a. representative democracy) isn't that fair to individuals or minority groups; the majority can abuse individuals and the minority. But nobody's figured out a fairer way to do it.

Since Common Areas often surround and border privately-owned areas, regulations act as a way for the Common Areas to do what homeowners do for their own private property: enforce their rights to enjoy their property free from annoyances and abuses by their neighbors. Even if you don't live in your HOA, you have a right to force your neighbor not to park in front of your driveway, clean up unsanitary piles of trash on his property and not scream profanities at your guests. You get the City and the police to enforce your rights.

Belonging to any group is an eyeopener, isn't it?

This could have just as easily been, "Associations are full of willing participants, some willing to volunteer and the rest willing to criticize."

Five percent of particpants in any given group are naysaying, critical malcontents who are sure that they are smarter, faster and prettier than the rest...but they bring nothing to the table. Well, if you're lucky, it's five percent.