Category: Mail Bag

“The HOA is supposed to maintain our tennis courts, gym and lap pool. They have let the tennis courts go into disrepair and have allowed pickleball players to commandeer the courts. Next years budget just hit my mailbox and lo and behold, they are going to repair the tennis courts but instead of making it tennis worthy, they are going to turn it into a pickleball court and use our raised dues for that purpose!

We did not vote for that change and “tennis court” is not “pickleball court” at least as far as the CC&Rs are concerned. What do you think my first step should be to correct this before it gets out of hand?”

 

I would write a letter to the Board of Directors reminding them that your CC&Rs define what amenities there are, and that the HOA is responsible for them. I would remind them that tennis courts aren’t pickleball courts and a material change to the property, and the use of HOA funds to effect said change, without a vote of membership, is outside the scope of their authority.

If that does not reverse their course, consider demanding an IDR.

I also suggest that you try and poll your community. If a majority of your members are in favor of this change and would be likely to vote in favor, you might be barking up the wrong tree.

“Remember those rains in February? I don’t because I was enjoying some needed vacationing with my girlfriend. No pets, no kids. I can come and go as I please, even for three weeks at a time. When I got home my condo was destroyed. That roofing work they are supposed to do, they didn’t do. Water everywhere. There was sheetrock and plaster and mold everywhere. It wasn’t pretty. I’m still not back in my home.

As my insurance and their insurance continue their ongoing battle, they’ve taken the rather absurd step of suing me for negligence. Apparently, I failed to promptly notify them of a roof problem while I was on my extended vacation. What on earth is wrong with these people?”

 

They are insisting on playing the Blame Game. You mentioned “roofing work they are supposed to do” which I interpret as preventative annual maintenance. Surely they didn’t know of an actual problem and failed to mitigate it timely? HOAs don’t do that, right?

I think the Board got caught with their pants down knowing full well that they took a gamble and lost. Unless they have some evidence that you knew your place was flooding while you were gone and didn’t take any steps to notify the HOA, I don’t see this being successful, and maybe they don’t want it to be. Maybe it’s a misguided attempt at forcing you and/or your insurance carrier to agree to participate in paying for some of the damage. As long as they have this pending, they may be motivated to just let you suffer.

I think you’re beyond IDR at this time and I’m assuming your insurance carrier has given you an attorney to represent you in this fight.

It’s so important that all owners in multifamily communities study their governing documents. The CC&Rs outline the maintenance, repair, and replacement responsibilities both owners and the HOA have. The responsibilities are not optional and they are not delegable. If maintenance, repair, and replacement work is not being performed, owners must work to hold their HOA accountable. We can help!

“I tuned in to the tail end of your call last week on WFTL regarding the Wolf v. Carpenter, Hazlewood, Delgado & Bolen, LLP case and your optimism about the Supreme Court considering the petition for certiorari. Regarding the issue of homeowners refusing to pay their dues, why shouldn’t the HOA have the ability to access the owner’s credit report, just like any other creditor would for a debtor?”

 

Let’s be honest, especially in California, the Homeowners’ Association (HOA) system is seriously flawed. People’s satisfaction with HOAs is at an all-time low, yet more unsuspecting people are getting involved in them than ever before. What’s concerning is that virtually anyone can become a Director, Officer, or Community Manager in an HOA without any legal requirement for licensing, credentials, training, or certification. Those uneducated humans make mistakes, and often.

The U.S. Supreme Court is being asked to decide whether a standard HOA assessment qualifies as a “credit transaction” under the Fair Credit Reporting Act (FCRA), giving HOAs the right to access a homeowner’s credit report.

There’s a significant division among different circuits when it comes to defining what constitutes a “credit” transaction. Back in 1984, the Ninth Circuit ruled that any transaction involving deferred payment should be considered “credit.” On the other hand, the Second, D.C., and Seventh Circuits have all asserted that if payment happens substantially at the same time as the performance of a service or goods delivery, it shouldn’t be considered a “credit transaction,” even if some payments are deferred.

The central question here is whether all transactions involving deferred payment, regardless of the timing of payment in relation to performance, should be labeled as “credit transactions” according to the FCRA.

According to the petition, “Within the Ninth Circuit alone, there ‘are likely millions of homeowners… subject to homeowner association assessments.’ [Pet. App. 3a]. And although the Ninth Circuit Panel did not rule on whether HOA assessments are credit transactions, it affirmed the District Court’s holding that they are. By affirming that ruling, the Ninth Circuit not only remains out of step with a thirty-year doctrinal trend, but it also undermines the privacy of millions of homeowners.”

This case isn’t just about homeowners who are behind on their assessment payments; it affects all homeowners who pay their assessments on time or even prepay them. If deferred payments like assessments are deemed credit transactions, it will continue to grant HOAs the authority to access the credit reports of their members. Can you really trust your HOA to maintain the confidentiality of your HOA records? Do you believe your HOA will provide accurate records when you request them? Do you think your HOA’s Community Manager and governing body genuinely prioritize the privacy protection of their members? I have my doubts, as their actions consistently fail to align with their promises, time and time again.

Given the utmost importance of homeowner privacy, and unless there’s a case of overdue payments, I believe HOAs should not have the authority to access the credit reports of homeowners.

Finally, I suggest checking out attorney Eric Glazer’s blog titled “Florida HOA & Condo Blog…Why can’t we be friends?” available at www.hoa-condoblog.com. Regardless of your state of residence, you’ll find valuable information to assist homeowners and trustees in navigating the ever-growing challenges in the world of HOAs.

“Our small HOA of 16 townhomes was built in the 1970s. The roofs are in dire need of replacement. It’s never been done before. We have no reserves to speak of. We have no manager. The treasurer takes care of everything. The Board of Directors recently sent out a notice that they decided to make the roof over each unit the legal responsibility of the unit owner under it. They call it a CC&R amendment despite the roof being a common component and no supermajority vote of members as required by the bylaws. Funny that they do this now when the roofs need to be replaced and we have no money. What do you suggest we do?”

 

The CC&Rs is a legal document, a contract, that can only be amended by the necessary vote of your membership or court of competent jurisdiction. A vote of the Board doesn’t cut it. There are other issues to contend with when ceding control over a common element (roof, structural components, exterior) to individual owners that I won’t get into here.

Quite frankly, unless they have illegally recorded a CC&R amendment with the County, or are forcing you to replace the roof now, I would ignore it. If they require the roof to be replaced within a certain timeframe, that’s different. In that case, I would put the HOA on notice, in writing, that their requirement is illegal and inconsistent with the actual recorded CC&Rs, you will not participate, you demand the roof be replaced by the HOA, and a special assessment may be necessary.

If the HOA does not budge, you might need to engage an attorney to help them see the error of their ways.

“Love your site and thanks for returning my call. The girlfriend’s truck was towed from in front of my condo without any prior warning or notification. Imagine waking up to discover its absence when she attempted to leave for work. Anaheim police had to tell us that it was in the impound yard and the reason described on the paperwork was ‘fire lane parking.’ When we talked you said you had fought many of these and even went to small claims court for one. It’s private property. There is a small red curb and nothing else. Thanks for helping us out.”

 

According to California Vehicle Code section 22658(a)(1), for a towing to be lawful, there must be a conspicuous sign, measuring at least 17 inches by 22 inches with lettering no less than one inch in height, displayed at all entrances to the property. This sign must prohibit public parking and inform vehicle owners that vehicles will be removed at their expense. Furthermore, the sign must contain the telephone number of the local traffic law enforcement agency and the contact information for each towing company with a written general towing authorization agreement with the property owner or lawful possessor. In this case, it’s your HOA.

Furthermore, Vehicle Code section 22500.1 outlines the necessary requirements for marking fire lanes. These requirements include the presence of a sign immediately adjacent to and visible from the designated fire lane, stating clearly in letters no less than one inch in height that it is a fire lane. Alternatively, the fire lane can be outlined or painted in red, accompanied by contrasting “FIRE LANE” wording clearly visible from any vehicle.

You said there are no signs and is no “fire lane” wording. Consequently, this aspect negates the legality of towing action. Depending on the specifics of the tow in question, Vehicle Code section 22658(l)(5) authorizes up to four times damages to be recovered when the tow is not legal.

Not only have we been successful in helping owners obtain refunds and some extra for the hassle, but I have also personally been affected by an illegal tow and obtained positive results by filing a lawsuit in small claims court. In my case, before trial, the property owner that had fought kicking and screaming finally went to the property and agreed there was no signage as required and realized that the contractor who had renovated the parking lot months earlier was responsible and got them to pay up.

* July 24, 2023, update: “You are awesome. You were right. She got a check today from the HOA to cover the towing costs, her time, and your time and didn’t even need to file a lawsuit. They put signs up last week and they painted ‘fire lane’ in yellow over the red…can’t miss it.”