what state has the strongest owner protections

Started by LaskaS • 18 replies • 344 views

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LaskaS (Texas)
Posts: 1,025

Posted:

Hi, the more I learn about the hoa's and coa's. The more I realize that there needs to be some change. If a board is good, the system works. However, there are obviously hundreds upon hundreds of nightmare stories about rogue boards.

Augustine,or anyone else who is familiar with more than their own states laws. Which states have the strongest protections for owners. With clearly defined processes and procedures that a homeowner can pursue without having to engage in litigation. I've read before that some states give owners the right to mediation and or arbitration. Or something like that.

Florida? california? any others?

MaxB4
Posts: 3,513

Posted:

I have seen both California and Florida's and I might be bias, but California is more homeowner friendly. On the legislative side, it's a little for the HOA's and a little for the owners.

MarniD (Florida)
Posts: 39

Posted:

We are in Florida, we have great laws on the books, but there is no way to enforce them. The only option is legal and then you are spending the national debt for attorneys and the HOA will spend all the money they want to spend to fight you.

I just went to mediation which is required before you can go to court. It was a total waste of time and money, the HOA dug in and nothing was accomplished. The only advice I can give you is YOU DO NOT NEED A LAWYER at mediation, you can do it on your own. Forms are filled out and then you and the HOA pick a mediator, you have the hearing and pray the HOA will do something for you. The mediator will go from room to room, present the case and then whatever happens happens. Costs are about $250.00 per hour, and the case can be over in about an hour.

Fighting an HOA is a loosing battle. The HOA industry is full of lobbyist and money donations go to political candidates, that is all they care about. The HOA is like a little Fiefdom of those who like to tell others how to live their lives.

Case in point in our community the largest rule breakers are the board !!!! Our CCR's are not followed, they are selectively followed. Just do not buy in an HOA.

BillH10 (Texas)
Posts: 1,217

Posted:

Laska

Your own state has some pretty good protections for Property Code Section 209 Homeowners Associations, many were implemented by the 82nd Legislature in 2011.

The most recent regular session which adjourned in May also implemented changes and, for once, put in place for Chapter 81 and Chapter 82 Condominium Associations a few of the protections which apply to TPC 209 Homeowners Associations.

I have been mystified since we became involved in the HOA in which we resided in the late 90s why the Texas Legislature does not simply extend operational policies which apply to TPC 209 associations to the Chapter 81 and Chapter 82 condominium associations. For example, collections policies and order of application of payments received to past due accounts policies are applicable to both and have nothing to do with the type of property/association involved.

BillH10 (Texas)
Posts: 1,217

Posted:

Whoops, I should make it clear the protections in place are for the owners, not the Association. Although, written policies keep both parties on the straight and narrow--theoretically.

AugustinD
Posts: 3,698

Posted:

If one has to live in a HOA or COA, I want to say California, Florida, Virginia, Washington, Texas, and I think Maryland and/or Delaware laws are among the best for offering a decent chance to get action from a rogue Board on some, but not all, issues. The latter states are not in any particular order.

And yet, based on reports here, even in these states time and again HOA/COA owners and boards land in court,. Once a lawsuit has been filed, the wheels of justice move incredibly slowly and at great expense. "Justice" is rare, overall.

In my opinion, HOA/COA owners and directors should always remember the time a court case takes; the expense of a court case; the emotional toll of being disparaged by one's neighbors; the mental stress of trying to get an attorney and judge to 'understand' one (if one can even find an attorney willing to take one's case); and the incredible invasiveness of discovery (which starts instantly, with certain rules concerning preservation of emails and phone texts) on one's privacy. More often than not these realities mean everyone loses in a HOA/COA dispute. If a Board does not get this, then this does not matter. The ball is now in an aggrieved owner's court to measure how much a moral victory (at best) means. In nearly all HOA/COA disputes there is no other kind of victory to be had.

State laws, from worst to not quite as bad, based on reading posts here and looking at the statutes (if the statutes exist):

Massachusetts and New York (worst)
Pennsylvania IIRC due to permitting and maybe even encouraging closed meetings, unless the governing docs say otherwise. For god's sake.
Ohio, also for allowing closed meetings for god's sake, unless the governing docs say otherwise.
Michigan
Illinois
Tennessee
Idaho and Colorado
Missouri (what statutes?)

We really need something like a gage that for each state measures:

-- ease of obtaining records

-- ease of forcing open board meetings

-- ease of forcing fair elections. Fair elections are everything, as LaskaS knows.

Most intelligent response to a rogue board I have seen in the last few years:

A fair housing violation was alleged. The owner and I reviewed real-life examples of the timeframes for getting some justice. The owner and his wife wisely decided to settle quickly with the HOA, and moved. Much credit to the HOA for making a decent (not great but not terrible), offer to the owner. (And congratulations HOA: You just forced a great couple out of your community.) This outcome was troubling to me and yet, I know in my heart that the choice the owner and his wife made was 110% brilliant. I think every seasoned attorney I know (a bit) and respect would agree.

KerryL1 (California)
Posts: 14,550

Posted:

Not having read them myself, we used to have a couple of really knowledgeable AZ posters. Form what they wrote, it seems AZ might be among the top 10 in being Owner-friendly.

I actually think IL statutes support owners pretty well too.

AugustinD
Posts: 3,698

Posted:

I agree with KerryL1 about Arizona.

Plus Arizona's ombudsman yada sounds to me like the most effective of any of the few states that have ombudsmen. Arizona seems very serious about keeping HOA/COA disputes out of the courts and yet getting resolution for all parties involved.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By LaskaS on 03/10/2022 9:39 PM
Hi, the more I learn about the hoa's and coa's. The more I realize that there needs to be some change. If a board is good, the system works. However, there are obviously hundreds upon hundreds of nightmare stories about rogue boards.

Augustine,or anyone else who is familiar with more than their own states laws. Which states have the strongest protections for owners. With clearly defined processes and procedures that a homeowner can pursue without having to engage in litigation. I've read before that some states give owners the right to mediation and or arbitration. Or something like that.

Florida? california? any others?

To me, Owner Protections really means what methods of remedy does a homeowner have? Most states have a ton of laws about open meetings, required document disclosure, blah blah blah, but there's no process or authority to enforce.

For example, in Idaho, even though there are clear and definitive statutes, the only way to press an HOA that is willfully violating them is to sue them as a contract dispute. Even though they are violating state law and NonProfit Corp Acts, the Secretary of State's office says its not their problem, its just a contract dispute between you and the NPC.

To add more to it, most HOA contracts you sign have a statement saying that you will pay for the HOA's legal fees...so that sucks.

It looks like Colorado has recently implemented an interesting solution
https://yourhub.denverpost.com/blog/2021/11/why-hoa-legislative-reform-is-needed/285827/?fbclid=IwAR1c2SKTKD6UubmP2kz61GhYjVWq3SJAH41zfV1u48YJS-A0v1tVXN0pprU
Implementing an out of court dispute resolution process within the State HOA Office. This need has been documented in several State studies as proposed in several Bills (but killed). Nearly all HOA homeowner complaints shouldn’t be referred to our court system: they are simple, not litigious, not criminal and involve easy solutions to violations in HOA law and HOA governing documents. The cost to taxpayers for this program is zero. Cost to HOA to homeowners to implement no more than $1.50 per home per year. The savings to HOAs and homeowners in avoiding court and legal costs would far exceed the cost to administer the program.

LaskaS (Texas)
Posts: 1,025

Posted:

Bill I agree completely, I see a lot of protections in 209 that would be very helpful if they also applied to condominiums.

LaskaS (Texas)
Posts: 1,025

Posted:

Adam and others, I agree, statutes and rules and bylaws and declarations mean nothing if a rogue board can do pretty much interpret vague bylaws in a manner that would allow for their actions. with no fear of being personally liable. The expense of litigation discourages individuals from seeking to pursue litigation.

the comments about mediation are useful, thanks.

when a rogue board can manipulate the election process, this pretty much removes the ability of owners to change the board.

I would like some kind of statute that would allow access to the association attorney if owners making up 10 or 20 percent of the membership sign petition of some sort.

A lot of the things I bring up, any attorney, serving as an advisor and not an advocate , would be able to properly inform the board,,"you can't do that"

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By LaskaS on 03/11/2022 3:25 PM

I would like some kind of statute that would allow access to the association attorney if owners making up 10 or 20 percent of the membership sign petition of some sort.

A lot of the things I bring up, any attorney, serving as an advisor and not an advocate , would be able to properly inform the board,,"you can't do that"

You're proposing something like an in-house mediator, with attorney's credentials, having no one in particular as a client but rather being paid to... mediate disputes, with loyalty to the law and the covenants.

Sure.

Same for AdamL1's interesting report on what Colorado is doing.

There's even a serious name for these suggestions (that aim to keep disputes out of court): Alternate dispute resolution. It's a movement, really.

LaskaS (Texas)
Posts: 1,025

Posted:

Thank you augustine. Yes, something like manditory alternate dispute resolution with an impartial paid official. The 10% or 20% of owners signature requirement I suggested would ensure frivolous complaints don't waste association resources.

Frivolous of course is subjective.

But there needs to be some way for an owner to dispute a fine or charge in front of someone objective. Currently the right to appear before the board when a fine or charge is in dispute does not account for biased, less than objective boards. The people or persons handing down the fine or charge shouldn't be the same person or people who hear and decide on the appeal.

I also really like the texas 209 addition that allows homeowners to utilize the jp courts if the board refuses to abide by the covenants.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By LaskaS on 03/11/2022 7:09 PM

I also really like the texas 209 addition that allows homeowners to utilize the jp courts if the board refuses to abide by the covenants.

What section of 209?

AdamL1 (UnitedStates)
Posts: 559

Posted:

I wonder if any States have a code that says something like Allowing a Member to sue for breach of contract for an automatic $500 judgement if proven. Basically, some sort of "bounty" punishment if an HOA acts out of line.

For example, a Homeowner requests records and documents. The HOA refuses. The Member can submit some short paperwork to the Court for a summary judgement, and the HOA gets a fine.

MaxB4
Posts: 3,513

Posted:

California has such a ticket:

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5235#axzz2CR2ljirY

Civil Code §5235. Enforcement of Inspection Rights.

(a) A member may bring an action to enforce that member’s right to inspect and copy the association records. If a court finds that the association unreasonably withheld access to the association records, the court shall award the member reasonable costs and expenses, including reasonable attorney’s fees, and may assess a civil penalty of up to five hundred dollars ($500) for the denial of each separate written request.

(b) A cause of action under this section may be brought in small claims court if the amount of the demand does not exceed the jurisdiction of that court.

(c) A prevailing association may recover any costs if the court finds the action to be frivolous, unreasonable, or without foundation.

BillH10 (Texas)
Posts: 1,217

Posted:

Adam, see below

Sec. 209.017. JUSTICE COURT JURISDICTION. An owner of property in a subdivision may bring an action for a violation of this chapter against the property owners' association of the subdivision in the justice court of a precinct in which all or part of the subdivision is located.

Added by Acts 2021, 87th Leg., R.S., Ch. 951 (S.B. 1588), Sec. 21, eff. September 1, 2021.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

The bottom line is unless one is willing to take legal action of their own, no state is going to protect you.

AugustinD
Posts: 3,698

Posted:

Florida HOA Act FS 720 on denial of HOA records:

A member who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply with this subsection. The minimum damages are to be $50 per calendar day up to 10 days, the calculation to begin on the 11th business day after receipt of the written request.

Florida Condo Act FS 718 on denial of records:

The failure of an association to provide the records within 10 working days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this paragraph. A unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply. Minimum damages are $50 per calendar day for up to 10 days, beginning on the 11th working day after receipt of the written request. The failure to permit inspection entitles any person prevailing in an enforcement action to recover reasonable attorney fees from the person in control of the records who, directly or indirectly, knowingly denied access to the records.

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