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Posted By WilliamK8 on 06/12/2021 7:18 AM
check out this quick video [snip] HOA Horror Stories #1 https://youtu.be/PM90HNrXrjg
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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