CC&R Compliance

I currently live at Rancho Bella Vista South in Pinal County Arizona. We purchased our home on a short sale in a community that was not completely developed because the housing bubble had burst. The developer stopped building homes which created many vacant lots. Our community had ideas for improvements for the current residences, such as a pool but nothing ever materialized in our favor, what a surprise!!

We have been there for nearly 10 years and have gone through some health issues. My wife had surgery which left her partially disabled. During the economic decline I got laid off and found employment in North Dakota. We did some minor repairs and improvements to the property but nothing that would be considered a violation of any CC&Rs. Our house is approx. 14 to 16 years old and the paint has faded on the West side of the House. There is nothing in the CC&Rs when we originally signed requiring us to paint on a regular basis or improve the property beyond what the previous home owner accomplished. We have had some plumbing issues, electrical issues, (Still Have those) and 4 years ago our Central Air Conditioning Unit took a dump. After several repair attempts by reputable AC technicians we opted to place AC units in our windows. We got this cleared through the BOD with the understanding that it is a temporary measure and when we can afford a new system we will remove them.

Recently the economy has been turning and things are picking up. The developer has filled the lots with brand new homes. The HOA is enforcing compliance to the CC&Rs through Brown/ Olcott Law Firm. We are getting letters that we are in violation of several CC&Rs that require us to paint our house and remove the AC Units from our windows or there will be fines and fees added to our account. The BOD wont talk to us and the Law Firm will not return our phone calls. We are a single family income and these immediate repairs are a financial strain that we cannot afford. After digging into the CC&Rs I found that in Article 9 subsection 1 the HOA (Association) has the Fiduciary means and authority to make any and all property improvements for the well being of the Association, Owner and Occupants. The wording is transparently clear and now that the economy is moving in the right direction there shouldn't be any excuse as to why the Association has hired a Law Firm instead of a contractor to make these improvements to the benefit of the whole community. How ridiculous to impose fines and fees upon a financially struggling family. Can someone please explain how this is a Fiduciary Behavior for the Benefit of the whole Community.

1. You are in violation of this site's terms of service. NO names may be mentioned.

2. You are in violation of your Covenants and Restrictions re: maintenance.

3. Your economic situation has NO bearing on your contract with the other members.

4. The 'forced maintenance' refers to Association's ability to 'force you to maintain'.

5. TOUGH LOVE: It is obvious that you can NOT afford your present dwelling for whatever reason.

Time to either:

Pony up for the REQUIRED maintenance

OR

Move on down the road

Your neighbors do NOT desire to live next to your dilapidated home.

You and they have a mutual contract (Covenant) to which you can not adhere.

You WILL be forced by Court Order to EITHER

comply

OR

sell and move along.

IMO: save yourself a pile of money and grief and sell now while the market is 'hot'

or

fix the place to your community's standards

next time: CAVEAT EMPTOR

I have confronted more than one board member when they say I am in violation and in fact I am not. The police have been called to enforce overnight parking on the street only to prove that board members often overstep their authority by reading something that doesn't exist. You cannot enforce something that doesn't belong to you even if its in the CC&Rs. Company logos, company trucks, overnight parking and all around stupid issues that have no bearing on anything except they feed a delusional, imaginary position of power.
Finances have a lot to do with what can be accomplished. The very evidence that the developer stopped developing.
Pony Up??? how retarded! You obviously have no idea what the Fiduciary even means! Thanks for addressing nothing!

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So you want all members (meaning the HOA) to pay for the re-painting of your exterior wall? When the covenants (which are a contract) say you agreed to keep the exterior wall painted and looking nice?

If you wanted the HOA to be responsible for painting the exterior wall and installing central air conditioning, then why didn't you shop for a condominium some years ago whose covenants said just that? Alternatively, why aren't you lobbying your fellow HOA members for an amendment to the covenants?

Board members are stuck with enforcing the covenants. The latter is their main fiduciary duty. They cannot just hand out services to one member that they do not offer to all members. Then if they did offer these services to all members, guess what? Your share would be the same as what you are now being asked to pay on your own for these repairs.

While I may be overly blunt I am 98% correct in the statement of facts.

Perhaps the OP would like to post a link to the mentioned statute ?

from the OP's CCR's:

8.2
Lien for Assessments; Remedies; Poreclosure. There is hereby created
and
established a lien in favor of the Association against each Lot which shall secure payment of
all present and futun: Assessments assessed or levied against such Lot or the Owner thereof
(together with any other amounts levied against such Lot or the Owner thereof pursuant to the
Declaration or the Articles, the Bylaws or the Association Rules). Such lien shall be prior and
superior to all other liens affecting the Lot in question, except: (a) taxes, bonds, assessments and
other levies which, by law, are superior thereto; and @) the lien or charge of any First Mortgage.
Nothing in this Declaration shall be construed as requiring any holder of a mortgage on a Lot to
collect any Assessments. Recording of this Declaration constitutes record notice and perfection
of the liens established hereby, and further Recordation of any claim of a lien for Assessments or
other anlounts hereunder shall not be required, whether to establish or perfect such lien or to fix .
the priority thereof, or otherwise (although the Board shall have the option to Record written
notices of claims of lien in such circumstances as the Board may deem appropriate). The Board
may invoke any or all of the sanctions provided for herein, or any other reasonable sanction, to
compel payment of any Assessment or installment thereof, not paid when due (a "Delinquent
Amount"). Such sanctions include, hut are not limited to, the following:

9.1
Use of Association Funds. In addition to the powers enumerated in the
Articles and Bylaws, the Association shall apply all funds and property collected and received by
the Association from any source ("Funds") for the common good and benefit of the Property, the
Owners and the Occupants. The Funds may be used, among other things, to insure, acquire,
construct, alter, clean, maintain, supewise, provide and operate, in any manner whatsoever, any
and all land, properties, improvements, services, projects, programs, studies and systems within
the Property and the Common Areas as may be necessary, desirable or beneficial to the general
common interests of the Owners and Occupants. In connection with the foregoing, the Funds
may be used for the administratioq oftice expenses, salaries and other personnel costs of the
Association. The Association rtiay in its discretion collect and maintain Funds to be held in
reserve for any of the uses referred to in this Section 9.1.

11.3 Maintenance and Repair. Every Owner and Occupant shall perform promptly all maintenance and repair work required by this Declaration, the Association Rules, the Design Guidelines and the
Bylaws. ............

etc etc etc

http://www.rbvsouth.org/ResourceCenter/DocViewer/15835?doc_filename=rancho%20bella%20vista%20south%20ccrs-10-1-04.pdf&doc_id=254883&print=1

Based on what I read here, Pita and Augustin are correct. You need to do the work to comply with your documents OR the HOA can do it and bill you for it.

I can see no reason why your neighbors should pay to bring your house up to the standards in your documents.

It's too bad you've gone through tough times, but now that the picture has brightened and you seem to be employed, it might be worth it to get a loan to do the work required by your governing documents and then sell. With improvement in the market, you might do OK and come out with enough to buy something that suits your current life and pocketbook.

The courts interpret covenants as a contractual agreement among the members. You and I disagree.

If you want to do an academic exploration with your HOA's attorney, and then possibly in court, using something that has actual legal teeth, one approach you may wish to try is the legal principle of 'abandonment of covenants.' Courts from time to time will say that, if a covenant has not been enforced for many years, then the HOA has essentially abandoned them, and it is unfair for the HOA to suddenly start trying to enforce them. It is not a slam dunk. Still the courts have sided with HOA members from time to time claiming 'abandonment of covenants.'

I am sorry for your financial difficulties and your wife's illness.

Another practical reason actual names of communities aren't mentioned on this site is because someone in your community (like a board member) might read what you wrote and if your comments are filled with name calling, half truths and damned lies, he or she (or they) might get more upset, show it to the association attorney and suddenly you have a libel lawsuit to contend with, as well as another lawsuit to compel you to fix your property.

Now that that's out of the way - I am sorry for the financial situation you and your wife are in, but as you know, home ownership isn't cheap and maintenance is your responsibility. No one wants to live next door to or across from a dump - would you be saying this if your neighbor wasn't keeping his or her house in order? The board has a duty to enforce the CCRs fairly and consistently, so this IS part of their fiduciary duty. Look on this website and you will find dozens of conversations about boards who didn't do that, as well as those who seem to think enforcement applies to everyone else, except them. When you got your FIRST violation letter, that was the time to go to the board and explain your situation - perhaps all of you could have worked out some sort of schedule where the work could be completed as your finances improved.

I often heard arguments like this when I was treasurer on my board. Like you, there were people who didn't pay attention to the first, second or third letter warning them to pay their fair share of assessments (which pay for upkeep of the clubhouse, trash collection and whatever else is listed in your documents as association responsibility). Apparently they thought we'd just give up, but as soon as the first letter from the attorney showed up, they would howl and cuss, and cry. We were always willing to negotiate, but communication is a two way street - if you keep your mouth shut, we have no choice but to assume they just didn't want to pay and treat them accordingly.

And this business about the CCRs not specifying you to paint or improve the property on a regular basis? Stop with that BS - how, pray, do you expect your property values to improve if you DON'T fix the place up from time to time? All the exposure to wind, rain, sun, snow and whatever else Mother Nature throws at the house in 16 years - do you really think everything will look and operate the same as it did back in the day? When you brought this house, you became a member of the association and agreed to comply with its rules - what's happening here shouldn't be any different from what might happen to a neighbor in a similar situation.

At this point, I suggest you quit complaining about the board doing its job and concentrate on coming up with a settlement with the attorney before you have to go to court and explain yourself. Getting rid of the air conditioning units might be a start - you can always use fans to cool your home. As far as the paint job goes, check if there are organizations in your area who assist low income people with home repair - maybe you can buy the supplies and get someone to paint the house at a reduced price.
You

I want to thank everyone for their response no matter how calloused. Some of you seem to have developed the impression that I want to shirk my responsibility to make IMPROVEMENTS to my home. The difference in wording is obviously very important to proper communication. Treating the CC&Rs as if they're Biblical quotes would certainly explain why there is such a rift in understanding between homeowners and board members. Believers interpret the Bible to justify their beliefs and behavior instead of letting it speak for itself. What I am attempting to say is simple, there are provisions that outline the Fiduciary Care of the Association for the Well Being of the Whole Community that if followed would create peace with Homeowners and not legal conflicts draining the money of both Homeowners and the Association, legal action is not the only action available. Law firms address what the Association shows them.
Any HOA that is quick to point out violations believing they have exhausted their avenues of Fiduciary Care by sending notice after notice isn't familiar with the only purpose of the CC&Rs and shouldn't be in that position of service. Those board members should be removed as the best interest of the WHOLE COMMUNITY isn't their priority. Most HOAs don't offer any resources for Homeowners to secure reputable Contractors or financing for large repairs or improvements. When a homeowner responds, "I don't have the money" believe it or not the threat of legal action doesn't magically produce it.

I saw a response where someone stated that the Association could make those repairs with the understanding they set up a (BILL) payment plan with the homeowner. THIS IS EXACTLY WHAT SHOULD BE DONE IF THE HOMEOWNER IS CURRENT WITH THEIR ASSOCIATION FEES AND HAVE COMPLIED WITH OTHER NOTICES OF LESS SIGNIFICANCE. The Standard of Fiduciary Care extends beyond the legal arena.

Most of the responses project the heartless attitude of most Board Members. Comply or else!!!! We don't care how and offer no resources to homeowners for the repair, maintenance or improvement to the property.

Article 9 subsection 1 seems to address what the full responsibility of the Association is and who it is meant to serve.

I read somewhere else the statement that the Association through the enforcement of the CC&Rs maintains the value of the property. This couldn't be more wrong. Unless you were blind or not born yet the Housing Bubble burst and thousands if not millions of homeowners living in Master Planned communities became upside down in their mortgages as the result of economic collapse. The CC&Rs did nothing to ensure the value or sale of those properties. In Arizona alone it was estimated that over 60% of the homes within HOA Governed communities sat empty! It is a common misplaced belief that HOAs somehow maintain property value!

1.
It sounds like you have more faith in your take on things than you do the responses here. Do you really need more input? Or do you just want to vent because you disagree with your HOA's Declarant?

2.
Maybe the most important point here that has not been made is that your HOA is still under Declarant control. The courts are pretty generous to Declarants when they are trying to sell homes. The Declarant generally has more powers than the Board that takes over subsequently. This is because the Declarant is a business trying to sell homes and make a profit. The courts recognize this and so are pretty generous to Declarants and not so much the Members.

This is a very weird thread .... could someone summarize what DanielM16 is trying to say? I just don't understand.

DanielM16 - you could take a shot at summarizing, as well.

Thanks ...

I think I get it - it IS a weird thread.

One of things about this forum that would improve it is to try and answer questions, then generally agree there is no goodness that will come of continuing to entertain the weirdness, then a quiet agreement to simply stop posting on that thread.

Although, I would LOVE to hear the true outcomes of some of the weirder threads.

Pit has left us a g win, but his remarks are important, Daniel: "Please quote the actual document you claim says they are responsible for YOUR maintenance.

Kerry, again I reiterate that folks only choose to hear what they want. I don't believe I ever said my home routine maintenance is the responsibility of the HOA or anyone else. I thought what I said was that they have a Fiduciary Care to USE THE FUNDS in such a manner that BENEFITS THE WELL BEING OF THE WHOLE COMMUNITY.

Communication seems to be key when it comes to being involved with an HOA. It appears that the most popular stand among board members is to use the funds collected strictly for their office up keep and the common use areas and legal fees even though there are clear provisions that those funds are to be used for the entirety of the WELL BEING OF THE COMMUNITY INCLUDING OCCUPANTS. I am unable to see how hiring a law firm benefits the whole community when the person(s) they were hired to force compliance is a part of that community. IT MAKES NO SENSE THAT THE MORAL AND ETHICAL BEHAVIOR CAN ONLY BE DEFINED AS TAKING LEGAL ACTION UPON SOMEONE WHO CANT AFFORD THE IMPROVEMENTS WHEN THERE IS A CLEAR AND PRECISE PROVISION THAT THOSE FUNDS ARE TO BE USED FOR THE ENTIRETY OF ALL PROPERTIES WITHIN THE COMMUNITY.
Article 9 subsection 1 of the CC&Rs for my community plainly outline that the USE OF FUNDS IS FOR THE ENTIRETY OF THE COMMUNITY. Most of the response I am receiving seem to be from SC. and Florida. I don't know if the CC&Rs are common place or if they are unique from one place to another. My home is in Arizona and the CC&Rs have clear and precise language to the point that the USE OF FUNDS is the BENEFIT THE WHOLE COMMUNITY FOR ALL PROPERITIES INCLUDING THOSE THAT HAVE OCCUPANTS. I am asking if the CC&Rs are so misunderstood by other communities throughout the country. I will never live in another HOA Community once I sell my home and move on. There is the obvious conflict that only the HOA has the proper understanding of what procedures are to be accepted and applied for Compliance but when homeowners read it they come away with something entirely different and are treated as if we are morons. Without Home Owners there is no community, Duh!!!

I have had it out with the President of my HOA because he called the Police to have my Company truck towed from in front of my house for having a Company Logo and also being parked overnight. The Police Officer immediately put him in his place even though he was quoting the CC&Rs attempting to enforce compliance to something the Association has no jurisdiction over. It is a ridiculous thing to create such a conflict thinking that the CC&Rs are a criminal code if violated in the smallest way.
Another example is dog poop in the common areas. Clearly an HOA obligation to keep and maintain. I told my kids to make signs and start a little cash business by calling themselves Poop Patrol. They posted the signs on the mailbox where everyone goes. We then get A letter stating we were violating the CC&Rs by posting the signs so they removed them. Sending a bill to the HOA for clearing the poop of the common areas didn't go over well either since they claim they didn't hire us. Compliance goes both ways. Just because you're a board member doesn't give you a badge to enforce every violation believing its a criminal offense. I wont post any further comments as it is obvious no one from Arizona seems to want to touch this.

Must have been all the love and support from South Carolina.

Addition by subtraction.