RalphW2 (Florida)
Posts: 32
Posts: 32
Posted:
Anybody know?
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IS HOA an Adhesion Contract?
Started by RalphW2 • 9 replies • 1963 views
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TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Definition of Adhesion Contract from uslegal.com
First and foremost, it should be understood that any contract is typically biased to the one who wrote it. Therefore, in my opinion, all contracts are adhesion contracts. That is "a contract balanced in favor of one party over the other that one can assume it was not entered into on equal bargaining grounds."
As with all contracts, especially home purchases, one side can always refuse to enter into the contract. Adhesion contracts, based on the definition provided, "Adhesion contracts are usually formed when one person is in a superior bargaining position and pressures the other party into a contract with unfair or oppressive terms" it's, in my opinion, difficult to make a case that the deed restrictions are unfair or oppressive when the Association is under membership control.
Granted, it could be argued that when an Association is under Declarant control, that the contract could be unfair (based on votes per lot). However, nobody is forcing you to purchase the home/property and there are usually other homes available nearby.
So, in my laymans opinion, in regards to membership controlled Associations - no.
In regards to Declarant controlled Associations - perhaps (but there are other properties available).
First and foremost, it should be understood that any contract is typically biased to the one who wrote it. Therefore, in my opinion, all contracts are adhesion contracts. That is "a contract balanced in favor of one party over the other that one can assume it was not entered into on equal bargaining grounds."
As with all contracts, especially home purchases, one side can always refuse to enter into the contract. Adhesion contracts, based on the definition provided, "Adhesion contracts are usually formed when one person is in a superior bargaining position and pressures the other party into a contract with unfair or oppressive terms" it's, in my opinion, difficult to make a case that the deed restrictions are unfair or oppressive when the Association is under membership control.
Granted, it could be argued that when an Association is under Declarant control, that the contract could be unfair (based on votes per lot). However, nobody is forcing you to purchase the home/property and there are usually other homes available nearby.
So, in my laymans opinion, in regards to membership controlled Associations - no.
In regards to Declarant controlled Associations - perhaps (but there are other properties available).
BruceF1 (Connecticut)
Posts: 2,535
Posts: 2,535
Posted:
I am not a lawyer, but I suppose one could argue that it is, sort of, but what of it?
An adhesion contract is a "boiler plate" contract, or, in other words, a "standard form" contract prepared by one party that another party is asked to sign. Strictly by that definition, as I said, one might claim that CCRs are an type of adhesion contract.
For one thing, the CCRs, or Declaration in some places, is prepared by one party - the developer or, most likely, the developer's attorney and those who purchase their homes in the association are bound by the terms of that "contract" when they accept the deeds to their properties. There is no negotiation. Some CCRs even appear to be "boiler plate" or like standard form contracts. We often joke about our documents and say they came from "Documents-R-Us." Our declaration includes references to changing the boundaries between Units and common areas such as hallways and stairwells, but our Units are free-standing single family homes and those references obviously don't apply. Also, some of the sections in our Declaration are word-for-word identical to some sections in Connecticut's Common Interest Ownership Act.
But one thing that makes CCRs different from an adhesion contract is the fact that, for most of them, the provisions can be changed by the agreement of a specified percentage of the homeowners.
An adhesion contract is a "boiler plate" contract, or, in other words, a "standard form" contract prepared by one party that another party is asked to sign. Strictly by that definition, as I said, one might claim that CCRs are an type of adhesion contract.
For one thing, the CCRs, or Declaration in some places, is prepared by one party - the developer or, most likely, the developer's attorney and those who purchase their homes in the association are bound by the terms of that "contract" when they accept the deeds to their properties. There is no negotiation. Some CCRs even appear to be "boiler plate" or like standard form contracts. We often joke about our documents and say they came from "Documents-R-Us." Our declaration includes references to changing the boundaries between Units and common areas such as hallways and stairwells, but our Units are free-standing single family homes and those references obviously don't apply. Also, some of the sections in our Declaration are word-for-word identical to some sections in Connecticut's Common Interest Ownership Act.
But one thing that makes CCRs different from an adhesion contract is the fact that, for most of them, the provisions can be changed by the agreement of a specified percentage of the homeowners.
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
Ralph
Why do you ask? What are you looking to accomplish?
Thanks
Why do you ask? What are you looking to accomplish?
Thanks
LarryB13 (Arizona)
Posts: 4,099
Posts: 4,099
Posted:
Quote:
Posted By BruceF1 on 05/26/2014 8:47 AM
For one thing, the CCRs, or Declaration in some places, is prepared by one party - the developer or, most likely, the developer's attorney . . .
For one thing, the CCRs, or Declaration in some places, is prepared by one party - the developer or, most likely, the developer's attorney . . .
Based on local practices, developers seldom involve attorneys in preparing any documents. Developers are most often four-flushers willing to do anything to cut costs because they have no money to pay for anything up front. Copying someone else's CC&R's is one way to get a declaration without paying an attorney to prepare it.
PitA1
Posts: 222
Posts: 222
Posted:
if it is, so what ?
CAVEAT EMPTOR
CAVEAT EMPTOR
BruceF1 (Connecticut)
Posts: 2,535
Posts: 2,535
Posted:
Quote:
Posted By LarryB13 on 05/26/2014 10:34 AM
Posted By BruceF1 on 05/26/2014 8:47 AM
For one thing, the CCRs, or Declaration in some places, is prepared by one party - the developer or, most likely, the developer's attorney . . .
For one thing, the CCRs, or Declaration in some places, is prepared by one party - the developer or, most likely, the developer's attorney . . .
Based on local practices, developers seldom involve attorneys in preparing any documents. Developers are most often four-flushers willing to do anything to cut costs because they have no money to pay for anything up front. Copying someone else's CC&R's is one way to get a declaration without paying an attorney to prepare it.
True, but I do know that our developer did have an attorney. However, that developer actually bought the development from a previous developer who never started the project. The documents were part of the package because the original developer's name is on the Declaration. The original developer also had an attorney because that attorney's name is on the package as well, although it may simply be that the original attorney might have only filed the paperwork with the town and not actually prepared the documents.
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
Ours were drawn up by a local attorney firm the Declarant uses. The attorney's name is on them. They fit/describe our development meaning no references to things we do not have and specific references to things we do have like exterior maintenance/landscaping of each home by the HOA.
RalphW2 (Florida)
Posts: 32
Posts: 32
Posted:
I forgot I asked this, and now I can't remember why ... old age!
PitA1
Posts: 222
Posts: 222
Posted:
? what was the question ?
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