Fed up with developers?

You are so right. Covenants are written by the developer. While prospective owners are led to believe that the covenants are designed for the long-term good of the community, such as to protect property values, the self-interest of the developer is always evident.

Yet, years later, when the developer is out of the picture, owners are saddled with outmoded, unworkable deed restrictions that are nearly impossible to change. In addition, fees are set unrealistically low during the development period (such as no reserve fund allocations).

About half of the provisions of covenant documents I have studied are unenforceable. They are among the worst output of the legal profession. (I is one, so I can legitimately criticize my own.)

We are now in a period of serious economic contraction. Owners are beginning to realize that when times are good they reap the benefits of living in a covenant community, but when times are bad, they must share the burdens. And sometimes the burdens are overwhelming.

By the way, "George," in case you missed my previous two requests,

Are you a lobbyist?

Are you using this board as a pseudo-focus group?

Mary,

I'm a bit confused..you say it isn't the developers who draft the covenants but the attorneys but then you say the developer "picks an chooses" which articles they want to include...which is it?

No, our city/county zoning officials do review that CC&Rs are included. Some "boilerplate" aspects are somewhat mandated by our over-arching community development plan. Ours is called something like Mission 2020, or something like that.

There are certain minimum "requirements," much like binding elements with commercial development.

When the developer submits his project plan, copies of the CC&Rs are to be included.

Now, granted, I don't believe the zoning board reads each and every CC&R, I think they just scan for pertinent minimum "requirements."

So the CC&Rs can be MORE restrictive than what our Zoning department allows, but not less so.

The comments in this thread confirm that the notion of a homeowners association is still a grand work in progress, both in law, and in our society.

Increasingly, local governments mandate homeowner associations as a condition of development. Local governments see homeowners associations as a means to assure the provision of municipal services without increasing taxes. In effect fees and assessments replace taxes and associations become private governments.

For the most part, developers have a free hand in drafting covenants to shape the community for maximum marketing (and profit) impact. However, covenants are extremely difficult to change (both an advantage and disadvantage), meaning that homeowners are saddled with an ongoing community concept that is not of their own making.

Covenants can effectively prevent a community from evolving naturally over the years according to the wishes of owners. They become anachroistic communities, fixed in time and created by a developer who is not longer in the picture. A prime example of this is the generalized covenant prohibition on solar panels and clothes lines and satellite television antennas. Many such covenant restrictions no longer make sense in a rapidly changing modern world.

Despite the protestations of a few to the contrary, homeowners associations act as if they are private governments using their powers to enforce rules and dictate behaviors. The source of this power derives from the covenants.

There is much concern about covenants being contracts of adhesion, written initially to favor the developer and then to favor the assoication over the individual homeowner. The buyer essentially has no choice and no ability to negotiate terms. Adhesion contracts have great value in promoting effencies in commerce, but there is a question as to their value when used in smaller scale commerce. Courts have held that each real estate parcel is unique which calls into question the desirability of adhesion contracts.

One of the key issues is the ability of a potential purchaser to shop around to find the most attractive covenants. Since covenants are typically mandated by municipal authorities, and since most covenants are boilerplate, a prospective purchaser has little choice when seeking to purchase a new home.

As a result, we are seeing a literal explosion in state regulation of homeowners associations as power abuses and the are brought to light. Florida, and to a lesser extent California, have effectively decided to highly regulate homeowners associations as if they were chartered governmental bodies.

Perhaps the biggest problems is the lack of due process and the lack of an accessible, inexpensive judicial system to adjudicate disputes. Effectively, an association board of directors make the rules, enforces the rules and doles out punishment with no adequate checks and balances, no separation of powers.

The problem of state regulation becomes the traditional bugaboo that "one size does not fit all." What works best for a high rise condo on the beach does not work well for a suburban single family residence community. What works for a 4,000 unit mega association, does not work for a 10 unit townhouse association.

In trying to get a handle on homeowners associations, researchers, legislators, and lawyers have cast too large a net, using such terms as "common interest developments." Although homeowners associations share some elements in common, there are vast, vast differences among them.

What is needed, I think, are different laws for different folks. A uniform set of laws will not solve the challenges facing homeowners and homeowners associations. And both the legal profession and social science researchers need to disambiguate their approaches, splitting out the various kinds of association into more useful distinctions.

George makes some very astute observations. And one, I might add, I've heard many times on various HOA forums here in AZ. As I see it, nothing is going to change until such time as it is determined exactly what HOAs are and whether CCRs are contracts (adhesion contracts??) or just deed restrictions. I know some courts have referred to them as contracts but I've been told that in most instances they apply property law instead of contract law when rendering their decisions. Are HOAs state governments or private corporations? All these questions need to be answered b/4 any effective changes are made. AZ has jumped on CA & FL's bandwagon of overly legislating HOAs. From what I hear he FL agency resp. for overseeing HOAs is not doing their job; the NV ombudsman program failed miserable and AZ's attempt to adjudicate HOA complaints through the Ofc of Administrative Hearings has been recently ruled unconstitutional (AZ constitution). In the meantime problems abound in all these states, and many others (Texas big time!!). So what is the answer to this delimna caused by this animal we dub HOA????

Robert,

I just want to add something to your thought process about Florida.
It is a whole different animal from many other States. Number one, the State is FULL and I mean saturated with Lawyers wanting to bleed all of the seniors who live in the State. at any and every opportunity HOAs are prime candidates, full of millions of transplants in HOAs. The Ombudsman program suffered because of the lack of State money. Originally there were several districts set up but budget cuts removed too many of them. The case loads were overwhelming and because of it being in it's infancy, there were too many inconsistancies, along with the Statutes being too vague, it is in it's failing stage.

Well Michele,
No matter how immensely you might disagree he is under no obligation to tell you anything nor is anyone else if they don't want to, and if they did, how would you vet his credentials. I may have some idea about your motivation and you may question mine, but that's about as far as it goes.

His last post about the state of HOA's in this country speaks of great knowledge and good sense. Is he right? who knows but he is able to articulate pretty much how I feel from what my exposure has been. Hard not to credit a post like this. We all earn our way to post here on this board. If we didn't occasionally make sense we would be short lived on this site.

Michele,
I am just trying to get at what kind of data anyone would try to use that would depend on who said what on this site. We represent no Official establishment data, we represent opinions and that is what George offers also. Why would anyone pay a Lobbyist to collect what we have to say? What possibly wrong could be wrought from what we say or anyone else on any run of the mill talksite. Like it or not, but by agreeing to post on this site, it could be that all these words belong to Hoatalk. I doubt Hoatalk would want them or care if anyone used them.
Of course I could be way out in left field, but I must like it out there, or I would not go there so many times.

Michele,

I don't see what difference it makes if he is or is not a lobbyist. I must be missing something. To question a person's ethics without any proof seems a bit overboard. We are all adults and can accept or reject what George posts. Give it a rest.

It's very clear, I believe.

If he is a lobbyist and is using us as test subjects for various topics and/or legislation, that's fine, but to do so without first informing us that is what he is doing is what I consider to be unethical.

I have no problem with lobbyists.

I do have problems with people being sneaky about it.

I am not addressing one singular post, but taking his history of posting as a whole.

So I asked.

Because he doesn't ANSWER me isn't necessarily unethical.

But BECAUSE he doesn't answer, it speaks volumes.