Paint house, make HOA pay?

Started by RZ • 8 replies • 5297 views

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RZ (Arizona)
Posts: 51

Posted:

Who knew owning in an HOA community could be so exhausting?

Here is my question: inspired by the guy (a few posts down) who is being told by his HOA that he must repaint his house.

Our CCR's call for painting every five years, paid by the HOA through our regular dues. We are going into our 7th year now and the place is really showing it.

The problem is now we do not have the money to paint without breaking the bank. Also, the Board would never get a special assessment as each owner would be in the 3k range, the community would never go for it. Indeed it would be foolish to paint right now because we would have no money left for emergencies.

That said; our homes need painting and outside maintenance now. The CC&R's clearly state it is the HOA's responsiblity and says home are to be painted every five years.

Not to sound cynical, but aren’t rules the rules? Aren’t time frames...time frames?

When it is time to trim the palms or some owner responsibility issue, the Board is quick to fire off a letter giving a deadline. I don't recall them ending with; "only if you can afford it."

Realistically, who knows when, if ever, painting will take place? One option is to turn the option/mandate to paint over to the owners, but that is decision for another day.

My question is: If I propose to professionally paint my unit (using the published paint color, brand etc.) what are the odds I could recoup my cost legally? In other words, are the CCR’s a one way contract, or can a homeowner enforce the regulations and time frames back on the Board?

Using the above trimming palm tree example- If an owner does not trim their palms, the HOA hires someone and them bills the homeowner for it.

If “we can’t afford it right now” is a valid HOA excuse, why is “I can’t afford it right now” not just as valid for the homeowner?

I would be reasonable; I would not expect a full check in the mail. Maybe I could deduct a portion from my HOA fees until I am paid back?

Anyone ever heard of homeowner success in this area? Are the CC&R’s a one way street? Seems to me one could go to court and enforce it as a breach of contract.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By RZ on 07/05/2010 11:59 AM

Seems to me one could go to court and enforce it as a breach of contract.

Just so we're clear; you want to go to court and force the HOA to special assess you $3,000.00 to paint your house???????

Studies show that 5 out of 4 people have problems with fractions

RZ (Arizona)
Posts: 51

Posted:

Not exactly. Let me clarify:

I read a few posts down titled "HOA forcing us to paint house". A member was frustrated that his HOA was "forcing" him to paint his house.

It just got me thinking are CC&R's a one way enforcement? Understand that in my personal HOA, our monthly dues (by CC&R's) are supposed to pay for exterior paint and trim every five years. Our members pay in good faith knowing that their homes will be painted every five years.

That led to the next logical question- if an HOA can force a homeowner to repaint his house because they think it needs it(such power derived from the CC&R's), would the same not be true for a homeowner who demands the HOA follow the CC&R's as well?

So it is a little more involved than some resident up and demanding his HOA pay to paint his house for 3k. I think it is an interesting scenario.

Three basic thoughts:

1. If the CC&R's state clearly that homes will be repainted every five years, is that an enforceable mandate?
2. Just because the HOA does not have the funds- does that negate the CC&R's? Therefore, as would the HOA, could a homeowner do the maintenance themselves and bill the HOA for it? (again, is that is not exactly what the HOA would do with a non-compliant homeowner?)
3. Finally, why is the HOA not having enough money to follow the CC&R's an excuse for a contractual obligation? Ergo…a double standard?

Is enforcing the CC&R’s only done at the pleasure of the HOA, or can a homeowner force compliance and recoup the personal financial output?

JohnB26 (South Carolina)
Posts: 1,569

Posted:

A homeowner can force compliance ... BUT ... the $$$$ can only be obtained from homeowner assessments.

If the (previous) BOD has not performed their fiduciary duty, then, good luck in court .. but .. again .. the $$$ comes from the homeowners. If the D&O insurance covers the 'omissions' the premium will skyrocket after the claim.

Welcome to the wonderful world of joint property ownership .. the original purpose of which was merely to maintain retention ponds required by the Federal Clean Water Act of ??1978??

The quick answer to your question:
For most practical purposes the CC&Rs are in effect one-way.

CAVEAT EMPTOR

MaryA1 (Arizona)
Posts: 7,043

Posted:

RZ,

You can get a group of like-minded members together to "force" the board to adhere to the requirement to paint your homes (condos??) but that would mean asking for a special assessment or increasing your assessments -- or both. No, you cannot paint your own home and expect the HOA to reimburse you, unless your CCRs allow this. And, if the BOD wants to require the h/o's to take over this resp then that would require an amendment to the CCRs. Would the members approve that?

You ask why does the HOA not have enough money to meet their resp. Simply put, because of poor management. Is there a reserve fund? If so, it should be adequately funded to meet this obligation. If not, then I foresee other maint projects will not be undertaken either. It's the boards resp. to come up with a budget that adequately serves the financial needs of the assn, including funding of the reserve account. A reserve study should be performed every so often, which will tell the board how much money should be put into the reserve account each year. If this is not being done then when a maint project comes up the money will not be there.

IMO, the members needs to be made aware of the fact that unless they approve a special assessment for the painting project, their homes will not be painted in the foreseeable future. If the board had been more careful with their budgeting in the past this may not have happened. Assessments would have been raised to meet expenses and also adequately fund the reserve account. The members would have paid over time, but now they must pay all at once. Unless the board sees the error of their ways this will happen again when the next large maint project crops up. IMO, it may be time for a special assessment AND an increase in assessments to fund the reserve account.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

RIGHT ON

JohnB26 (South Carolina)
Posts: 1,569

Posted:

mary,

yep ... they are flying

DanielH1 (California)
Posts: 482

Posted:

A contract (or CC&R's) is an agreement, first and foremost. If all parties agree to not enforce a part of a contract, there is no supernatural or government power that comes along and demands compliance anyway. The government recognizes that some contracts will be poorly written or enforcement may be undesirable so they require one party to seek to enforce the contract (in court) rather than mechanically monitor and enforce contracts as a matter of routine. Courts can also break or amend contracts, either for a specific instance or for all time, if they judge the situation to call for that.

Most contracts also have a severability cause which means that the contract is still valid, even if some parts are not enforced or are invalidated.

That being the case, a homeowner could go to court to compel his HOA to do a special assessment and paint the Common Area. The court might agree and order the HOA to comply. However, the court might decide that enforcing that aspect of the contract doesn't make sense and invalidate/amend the CC&R's, either temporarily or permanently, to allow the HOA to not paint.

If the homeowner did the maintenance and billed the HOA, that would probably not work. That is almost certainly NOT in the contract and, well, you can't just make things up that seem fair to you. Just because one side (the HOA) is out of compliance with the contract, that doesn't enable the other side (the homeowner) make up contract causes that just, well, seem fair.

It isn't so much a double standard but unequal power. An HOA has the money and inclination to enforce the terms on the contract on the homeowners but few homeowners have the money and inclination to enforce the terms back on the HOA. And whoever enforces the terms gets the dictate what the issue is. If the HOA goes to court to force a homeowner to do something, the homeowner can't just bring up random other clauses. He's got to defend against the particular action and, if he has other issues with the HOA, he's got to file his own actions to pursue those other issues.

It should also be pointed out that the courts have generally agreed that, in HOAs specifically, homeowners still have to pay their fees even if the HOA isn't doing its job/abiding by its contract. As a practical matter, they say, homeowners could just stop paying their fees and make up some excuse and the whole institution of HOAs would be effectively destroyed. So, it is even more lopsided in favor of the HOA.

RZ (Arizona)
Posts: 51

Posted:

DanielH1

Thanks for the feedback. Points well outlined and easy to understand.

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