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Posted By BrianP19 on 01/09/2024 9:48 AM
1. Unlike DS... non DS HOA members can not go to small claims court when the HOA does something wrong.
First, if the owner v. HOA dispute involves money below the small claims threshold, then small claims court has jurisdiction.
Second, where money is not involved but instead, injunctive relief is sought, the D-S statute gives small claims court jurisdiction only in elections disputes and records inspection disputes.
Third, are your bylaws really so vague that they are difficult to use as a weapon for enforcement of xyz? If so, understood. Some HOA byaws
are terribly lightweight.
Fourth, I agree a close read of several D-S statute sections indicates that determining whether the statute applies or not is open to debate; depends on the finer legal points; and would likely require a ruling from a court. If the Declaration speaks to this rental, or the easements clearly qualify under the D-S statute, then from where I am sitting, the D-S statute applies. Unfortunately I am just some internet punk who is not going to finance the lawyer and possibly lawsuit that likely may be needed here to settle this.
Fifth, for the D-S statute to apply, why have this requirement for a HOA to have some kind of "common interest"? I can see HOAs with rigorous covenants benefiting from more regulation via the D-S statute. I would hypothesize this: The D-S statute came into being in the 1980s, when developers were not as regulated in general. The latter means developers did not write as many covenants because cities and counties had fewer regulations. Back then, I doubt cities and counties required "HOAs"the way cities and counties require HOAs now. Hence back then perhaps non-common-interest subdivisions often did not even have boards and were not even incorporated. So why regulate them with a statute?
