Dealing with Homeowners Associations

Homeowners associations are mini-governments with powers and responsibilities defined by the law.  They are charged with enforcing private covenants intended to uphold community aesthetics and property values.  They are responsible for maintaining and repairing common areas – exteriors of condominium buildings, pools, clubhouses and other recreational amenities, and landscaping in land owned collectively by members of the community.  It can be a thankless job;  board members are typically volunteers who can be bitterly attacked by individuals and groups critical of their decisions.

Hardly a month goes by in which I do not receive several calls from homeowners complaining about their associations.  Typically they are upset about an action or failure to act that adversely impacts them.  The association, through its manager or attorney, may have sent them a letter demanding that they do something or stop doing something on their property.  Sometimes it is a payment issue with the caller angered because that the association refuses to correct a perceived accounting error or work with them on a payment plan to cure a delinquency over time.  Sometimes the association is demanding that they cease commercial activities, clean-up their property, or prevent barking from a pet dog.  Many callers feel picked on or discriminated against citing similar violations that go ignored by the association.

Allow me to offer some thoughts about resolving disputes with homeowners associations. My perspective comes from having served on the board of a large master association for over three years, mediated dozens of association / owner disputes, and provided legal representation to associations as well as homeowners with claims against associations.

First, understand that state law discourages the litigation of resident / homeowner disputes.  The Davis Sterling Act, the foundational state law controlling the actions of homeowners associations, has provisions that steer the most common disputes to alternative dispute resolution (ADR).    ADR typically comes in the form of arbitration, where an independent decision-maker hears evidence and makes an award, or mediation, where a specially trained third party neutral assists the parties to reach a settlement.  Of these options, mediation is the more commonly used ADR due to its effectiveness in overcoming personality and communication issues that often prevent the parties from resolving disputes on their own.   (Arbitration is frequently a back-up option for disputes not settled in mediation.)

Second, understand that the “they are picking on me” defense is typically not well-received by the association in mediation and rarely carries the day in arbitration or court.  The discrimination argument is much like trying to persuade a police officer not to write you a speeding ticket by pointing to other speeding vehicles that could have been pulled off the freeway.  Neither an officer or association is compelled or able to pursue everyone.  The fact that some drivers or owners are not caught does not give immunity to those who are.

Third, many callers confuse political with legal issues when it comes to the actions or omissions of  homeowners associations.  Some associations are overzealous and others overly timid in the enforcement of community standards.  If you are upset with association priorities, budget decisions, the condition of common areas, or treatment received at Board meetings, the remedy is typically to replace Board members through the ballot box.  You can do it at the next annual election or, if the issues need immediate attention, through a recall petition consistent with governing documents.    But don’t expect that judge or arbitrator to instruct a Board to change its overall policies unless they violate a particular law.  Associations, like city councils, have broad discretion on the big picture issues;  as a general rule, it is only when the association gets legally sidetracked in its decision-making process or in actions taken against particular owners that the courts will intervene to right the wrong. 

Fourth, when it comes to homeowner association complaints, keep a rein on your emotions.  It is easy to lose all perspective because of a sense of outrage at what the association has done or failed to do.  Hiring counsel as your champion to take on the association can be expensive.  A vigorous legal challenge, particularly in adversarial arbitration or court processes, can be disproportionately expensive to the magnitude of the dispute.  You don’t want to spend many thousands of dollars in legal fees over a disputed property use issue that could be resolved by spending much less money making minor changes to your house or yard.  Fighting over issues based on principle can carry a steep emotional and financial price.  As such, a good legal counsel will listen to your concerns but urge you to undertake  a course of action that is both pragmatic and cost effective in hope of resolving the dispute outside of court.

Keeping these guidelines in mind will help you deal intelligently and effectively in challenging the actions of your homeowners association.