Power Of Attorney For The HOA

I had mentioned once before that my neighborhood amended their documents back in 2006 to bar sex offenders from ownership of a property or residency back in 2006. While I was doubtful of the legality of such a restriction barring ownership, I was curious about another provision. In all the restrictions I have ever read I have not really seen one in which a HOA is granted power of attorney over all the properties in the neighborhood regarding sex offenders (at the owner's/resident's expense) and that they are not obligated to actually do a background check or be held liable.

Here is the wording from the relevant paragraphs:

C. Each owner hereby appoints the association as the owner's attorney-in-fact for the purpose of commencing eviction proceedings, executing any and all documents pertaining to the proceedings or performing any or all responsibilities as may be required or necessary to be performed pursuant to this Section 24. This power of attorney is expressly declared and acknowledged to run with the title of any and all Lots and will be binding upon the heirs, personal representatives, successors, and assigns of the Owner.

and

E. The association will not be liable to any Owner or anyone occupying or visiting the Properties as the result of the Association's failure to evict an individual in violation of this Section 24. The Association shall have the right but not the obligation to conduct background investigations in any databases or registries as needed to ensure compliance with this Restriction.

I had read this as saying that basically the association gives them authority to evict homeowners who are believed to be sex offenders. An earlier paragraph states the various relevant statutes that a owner would have to violate but it also allows for the banning and eviction of individuals who have not been convicted of crimes and have had their adjudication withheld. Coupled with the final passage where they are not obligated to do background investigations and this amendment basically reads that the association can evict anyone they deem undesirable.

Any thoughts?

Kevin,

What document is that in.

I also don't believe the Association would be able to act as attorney in fact for anyone who didn't vote or voted against such a provision. Those who moved in after the amendment would be a different story.

Note, if it's not in the CC&Rs, I doubt it's enforceable.

When one grants power-of-attorney, the attorney-in-fact becomes obligated to perform in the best interest of the grantor and not in his own best interests. A cause of action would arise if the association, exercising this purported power-of-attorney, acted in a manner that was hostile to the interests of any homeowner.

Let's suppose I am a sex offender and I purchase a home. The HOA is now my attorney-in-fact pursuant to the cited clause. The HOA cannot lawfully evict me as that would be a situation where the interests of the principal (me) and the self-interests of the attorney-in-fact (the HOA) are hostile to each other. No court would allow the HOA, acting as attorney-in-fact, to proceed against the homeowner in an action that would not be in the best interest of the homeowner.

Bottom line: This Power-of-Attorney clause was a bad idea.