new episode: HOA Horror Stories (on Youtube)

In my opinion this youtube video repeatedly asserts, in different ways, that covenants are dumb. To me, it demonstrates ignorance of real property law.

The courts for over a hundred years have said covenants are contractual terms. Boards have a legal duty to enforce covenants. To me, whoever scripted this video is saying that contracts cannot legally exist. This is nonsense.

I think the part that has some value starts at about 7:30. For the next few minutes, the video provides some information about the HOA's foreclosure on an apparently mentally ill HOA member's home. In 2010, the man burned his home down, dying in the fire. I think the following is a much comprehensive and even-handed reporting of the facts: https://www.starnewsonline.com/article/NC/20100904/News/605065184/WM.

The situation with this North Carolina HOA member is interesting because it indicates the challenges amateurs, on a HOA board and even with the assistance of an HOA attorney, have in dealing with someone who is mentally ill.

Excerpt from the starnewsonline article:

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Court documents show [the North Carolina HOA] followed the law and used it to recover unpaid fines. But neighbors said the homeowners association was too hard on Darius, and they weren’t sure he understood his situation.

“Peter isn’t 100 percent there,” said a neighbor, Adam Reebel. “Everybody in the neighborhood is of the opinion they pushed him too hard.“

Quirky handyman or nuisance?

Darius’ neighbors said he kept to himself and tinkered with lawn equipment in his garage.
He would often be seen riding his blue Earth Cruiser on Putnam Drive.

Darius also built a gazebo and made planters from unused plastic drainage pipe.

“He had more stuff than the association really allowed,” said Henry McCallister, Darius’ next-door neighbor.

Darius always offered to help his neighbors if he saw them working outside, said Reebel, who lived near Darius for more than three years.

Darius’ sister, Isabel Curran, is listed as his power of attorney. A man who answered the door at Curran’s listed address said he didn’t have any comment about Darius or his death.

Jennifer Harjo, New Hanover County’s public defender, recently represented Darius in a criminal case that a prosecutor dismissed. She enjoyed her interactions with Darius, and they kept in touch after the court case.

Harjo said Darius complained about [the HOA] and asked for her help in the civil lawsuit, but Harjo couldn’t help him because she represents clients in criminal cases. Darius met with her after the fence and steps he had built were removed from his home after a court ordered them removed.

The steps had lifted Darius to unreachable parts of his house, letting him clean his windows and the outside of his home.

Harjo said Darius had trouble speaking and could be easily intimidated, which frustrated him.

“There was some limitations, deficiencies, that should have been obvious to anybody,” Harjo said, adding Darius didn’t always project pleasantness. “Any intelligent person would recognize it for what it was. It was not evilness, but him not understanding.”

Darius’ troubles started with a notice from [the HOA].

Gary Clemmons, [the HOA’s] attorney, said the notice told Darius to remove the shed, white picket fence and planters. Darius didn’t remove them, so [the HOA] held a hearing in 2006, which would have let Darius explain his decorations and present evidence. Darius didn’t attend.
A state law called the Planned Community Act requires a notice and hearing before a homeowners association board fines a homeowner.

After Darius missed the hearing, [the HOA] began fining him $100 a day for the violations.
When [the HOA] put a lien on his home in December 2008, Darius owed $4,438. [The HOA] filed a civil lawsuit a week later to recover the fines and other costs.

By May 2009, Darius’ tab hit $11,276 despite two payments totaling nearly $50,000. But after each payment, the fines continued, burying Darius. Also that month, a judge ordered Darius to remove the white picket fence, shed and planters and to pay [the HOA].

Darius didn’t pay, and a year later, Darius owed $24,591 before his home was foreclosed to satisfy the court’s judgment. Darius never hired an attorney and argued his own case during court proceedings, Clemmons said.

Henry Herring Jr. bought the home during a public auction earlier this summer for $83,578, according to New Hanover County tax records. The price was less than half the appraised value of $179,233.

Clemmons said he encouraged Darius to get a lawyer throughout the court proceedings, and he said the judge was patient with Darius, explaining procedures and proceedings. In prior criminal cases, Darius was never declared incompetent and was legally presumed to be capable of handling his affairs, he said.

“The court really went out of its way to help Mr. Darius,” Clemmons said. “It’s tragic. I hated that happened.”

The Planned Community Act allows associations to use foreclosures to satisfy homeowners association liens, according to a state House committee’s proposed findings. But the findings note: “The foreclosure statute was never intended for this purpose.“

Last January, state legislators began studying homeowners associations and how they’re governed when the House Select Committee on Homeowners Associations first met.

Legislators found few options for people who want to challenge actions by a homeowners association. The committee’s proposed findings state “the only recourse currently available to homeowners in most cases” is to file a civil lawsuit.

But lawsuits are expensive. The homeowner would have to pay for his attorney, while also paying dues to the homeowners association. Those payments could be used by the association for its attorney.

The committee also found poor accountability and consumer protections. No state agency regulates homeowners associations. The state Attorney General’s office takes complaints about homeowners associations, according to a committee report, but the office can only recommend better education before moving into a community governed by a homeowners association.

Fortin, of the Community Associations Institute, disagreed with the House committee’s findings.
People move into homeowners associations and agree to the covenants, knowing their neighbors face the same rules.

Fees and assessments pay for roads, clubhouses, pools and other neighborhood amenities, Fortin said. If people don’t pay, they hurt the neighborhood.
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“They’re not robbing or cheating the government or some big corporation,” Fortin said about people who don’t pay fines and dues. “They’re picking the pocket of their neighbors. It’s critical that people be held to their obligation to pay for these expenses.“

Despite that obligation, Fortin said, homeowners associations need to work with homeowners who owe money, especially during the recession.

“An association doesn’t want to foreclose on a property,” Fortin said. “That doesn’t do them much good in this market.”
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There is no doubt that an HOA can be an absolute nightmare for homeowners. However, this video is so one sided and gives absolutely NO details on what really happened that it simply comes across as HOA bashing. There may be some real truth behind the video but it fails to document it well.

It comes down to the basic understanding of HOA's work versus ASSERTION/OPINION on how they work. Did not view the video but from the statement alone of "Mentally handicap person being fine $100 is trying to take advantage of the handicap" is off base/reality. That ASSSUMPTION and ASSERTION alone is showing the lack of knowledge of how fines work.

Fines are nothing more than a PUNITIVE step to correct a violation. It is NOT nor EVER considered a Profit. You break a rule you face the consequence till you resolve the violation. The HOA can choose to fix the violation themselves and send you the bill for it. If you refuse to pay it, they can put a lien on your property for that bill. So I am sure your going to tell me how "unfair" that is yada yada...

Well a HOA is ONLY funded by it's members FOR it's members. The ONLY income it has is collecting dues. It is to collect as much in as it takes to operate and cover it's expenses. Fines or late fees are NOT considered "income". Liens and foreclosures are just "stop the bleeding" steps. Most states are NOT allowed to foreclose for fines. They may be able to lien. However, that is depending on how they apply the dues etc...

An owner in clear violation of the rules how do you recommend correcting? Would you not want fines available? Plus if someone is NOT paying their dues. Do you NOT want legal options to collect??? Well those LEGAL options are to lien or foreclose to collect.

So I don't see a HOA being "abusive" simply because they want/need a violation fixed or dues paid. Tell me how that is beyond comprehension?

The person that produced this video is likely an anarchist a hater of all authority. JMO.

That's admirable of you to ask. Though I am not persuaded the HOA directors need exculpating. I would report pretty much what the article I linked reported.

If you want to be a journalist, maybe reproduce some of the responses here, from experienced, long-serving directors, about how a Board should respond in a situation like this.

I thought the HOA attorney's comments were interesting. I thought he came off well, in a manner that seemed honest, genuinely sympathetic, but on the side of the covenants. I do not know if it was an act, but if it was, I think it was good public relations work on the HOA attorney's part.

Ditto what JohnT38 asked.

I agree as the fining can be capricious and vindictive.

If you eliminate the option of foreclosure for non-payment of fines, you're left with liens or removing access to amenities. Some states require a minimum debt level before you can lien, many communities have no amenities to withhold. If there are no negative consequences for non-payment of fines, they're worthless and should be done away with altogether. Then what? A Wall of Shame? Ritual shunning?

If a useful tool isn't working properly, fix the tool - you don't chuck it out the window and stand there empty-handed.

I agree Cathy. Someone once said HOA's are like walking into a Walmart and randomly picking a group of people to share a bank account with.

TOTALLY AGREE! Whoever thought that this was a good ought to be shot. The Board even needs to know more than the Property Manager!

One of the week's gems, as far as I am concerned:

For HOA/COA directors, I'll take a group randomly chosen from WalMart customers/cashiers over a group randomly chosen from Fortune 500 CEOs.

I wouldn't choose either (it's the "random" part, not the groups).

The only qualifications for buying a home are having enough money and being able to sign a valid contract. Buyers aren't required to show that they have what it takes to be a competent board member or to even understand why this matters - and this is the pool from which board members are chosen by people who mostly don't understand why it's important.

Sheila said a mouthful: people treat buying a home like buying groceries. And HOAs/COAs are so much worse, because you don't only own property, you're also the business partner of a bunch of strangers. I'm surprised things work as well as they do as often as they do.

I second that!

It’s not nonsense. It gets some things wrong but much of what she says is correct. I don’t think buyers are remotely interested in self management but they do like pools and playgrounds, so yes - developers do install those things to help sell.

Assessments do maintain the operation and expenses of the association. Incorporation is necessary (although not to collect assessments).

The developer does pay all expenses at first, and many continue to pay them ( to keep dues artificially low to sell houses but that’s another topic). Dues aren’t paid to the developer of course but to the association.

And absolutely most problems in an association can be blamed on the membership.

Melissa gets picked on a lot here. She doesn’t always give entirely accurate info but her post wasn’t nonsense.

Sure, I agree the man was mentally ill. For goodness sake, he burned himself down in his home, I believe because he did not want the HOA to have the home. Which by the way, did what to the guy who had bought the home at auction? Have you sympathy for the purchaser's financial loss (unless there was insurance)?

Humanity. Hmm. Lots of folks are dying nationwide and worldwide. I cannot afford to help all of them. To whom do I give my time and effort? You're saying that, if I lived in this HOA, I should give my time and effort to folks like this gentleman, whom the court will not declare incompetent, hence the guy can just go on making irrational decisions? Hmm.

People did in fact address the board trying harder and being more patient.

I get that you want all human suffering to stop. There are no easily implementable solutions.

Say, what's wrong with being called a journalist?

I fail to see how the BOD did not realize they had a "crazy" on their hands and try to be a bit more understanding/sympathetic instead of relentlessly pursuing him.