I had a call the other day from a potential client, someone who wanted legal representation. He was outraged. His question was more of a “demand” stated, “I am looking for an attorney to sue; I received a notice that I cannot use my garage for 3 days while the association resurfaces the streets. They want us to park across the street. There have been many car breakins there. Can the Board do that? Keep me from getting my car in my garage? I have rights don’t I?”
My question to this caller was: “What do you expect the Board to do? It sounds like the streets need resurfacting. If you don’t want to park across the street is there somewhere else you can leave your car, at work? At a friends? Can you use public transportation or have someone pick you up and leave your car in the garage? Do you have insurance on your vehicle?”
The caller’s reply: “It’s my property, I don’t see how they can keep me from using my garage – do you represent owners?”
“Not in this case,” was my reply.
This call was reminiscent of one a few years ago when an owner called outraged because he went to the spa and there was a sign “Closed for maintenance until ____” [for two days]. The owner said he had a bad back and was thinking about suing the Association for closing the spa under the ADA! He was outraged that I should suggest that the board had the right to close the spa to have mainenance performed and that the ADA did not apply to a purely private HOA and he slammed down the phone in my ear.
An owner in an HOA has some obligations too. If you have read my first book called “Finding Your Key To The Castle” you would be familiar with the “Forward” which contains “The Parable of Backward Harry:”
Here it is:
The Parable of Backward Harry
Getting things backward seemed normal to Harry. He’d done it since, as a child, he had read Green Eggs and Ham and couldn’t fathom why his father ate ham and eggs rather than eggs and ham. Other children put on shoes and socks. Not Harry, for him it was socks and shoes; since socks went on his feet first it seemed logical. He grew up looking at life logically and making few friends. Children called him weird, threw rocks at him and pointed. Harry was undeterred and grew up as himself.
When he was old enough he voted for the best candidate, not caring about political party affiliation. Who could be right all the time? he asked people in his logical way, conceding that he could make a mistake too. Going to work from home Harry traveled forth and back over dale and hill and eventually earned enough as a dance and song man to buy a condominium at the Fracas Falls complex.
At the annual meeting of Fracas Falls Homeowners Association, the first since Harry moved in, one owner after another stood to express unhappiness because they felt the manager or board of directors had trod upon their inalienable rights.
“I demand my inalienable right to raise goats in my back yard,” said one homeowner who had three goats and carried an aroma about him that kept others from shaking his hand.
“And I,” interjected another, “demand my inalienable right to park my collection of classic Yugos in guest parking.”
A third homeowner arose. “I demand my inalienable right to install a spa on my balcony so I can entertain my guests with a view of the city lights below. Your architectural review committee be damned.”
Another arose and shouted angrily, “What does inalienable mean?”
Then the owners, with the exception of Harry, rose as one and chorused, “Our home is our castle. We can do what we want. It’s a free country! Who do you think you are? We have a Constitution, you know.”
As one, with the exception of Harry, they sat down heavily in their chairs, arms crossed, jaws set tightly, glaring at the board of directors (now reduced to a bare quorum as the result of another instant resignation). In the odd silence that followed the outburst one timid voice could be heard.
“Mr. President, may I be recognized?”
It was Harry, who had come to his feet, standing with one hand raised as he had been taught in school. The president acknowledged the diminutive man while the homeowners groaned.
“Siddown, Harry,” one said. Another added, “Professor Backwards is getting ready to speak, let’s all stand on our heads.” Still another spoke, “Whatever you have to say, we ain’t interested, you geek.”
Having come to the meeting directly from dress rehearsal for a musical, Harry still wore tap shoes with white spats, a large-checkered jacket with wide shoulders, and a straw skimmer. He could have been mistaken for a court jester, had the shoes been more pointy. His garb made him even more clown-like among the casually dressed homeowners. Harry, accustomed to performing before audiences, nonetheless felt trepidation wash over him as he stood in front of the mocking mob. With the slightest waver in his voice he began, “Mr. President, I demand my responsibilities.” The board members looked perplexed—was this some kind of a joke?
The homeowners hooted and flung invectives at the dance and song man who had come to their meeting.
When the room finally quieted and the only noise was residual chuckling from one member who always caught on late, Harry spoke again, now with more determination, his trepidation beginning to fade.
“The reason I am demanding my responsibilities is that I have to get them taken care of before I can even think about rights, let alone inalienable rights. I guess that everyone else here has already taken care of their responsibilities or they wouldn’t be demanding their rights.”
Now, with thumbs hooking his suspenders and his left foot softly tapping a time step, he continued: “So, Mr. President, I demand that the board accept me as a volunteer. The Means and Ways Committee might be able to use my help. I demand of myself the responsibility for cleaning out my garage so I can park my car inside and not in guest parking. I demand that I pay my monthly assessment by the first and not wait until the sixteenth then complain about the late charge.” Booming toward a big finish—after all, he was an actor—he declared: “I demand that I keep in mind what John Kennedy said:
‘Our privileges can be no greater than our obligations. The protection of our rights can endure no longer than the performance of our responsibilities.’”
When Backward Harry had finished the room remained silent for long seconds. Even his left foot was still. There was before him a sea of bobbing heads as the full impact of Harry’s words sunk in.
Slowly, the goat farmer arose and turned to the audience who, as one, leaned away. “I always made fun of Harry because he got things backward. But he has made me see things differently. I see now that Harry is a dangerous man, a fool who could ruin ev-erything.” From one of his pockets he withdrew a fistful of goat chow and threw it in Harry’s face.
The audience, whose heads had been bobbing in unison a moment before, arose (yes, as one) and following suit—the most cooperation anyone had seen among them in years—pummeled Harry with Styrofoam coffee cups, half-eaten bagels and several dozen fig newtons the president’s wife had brought. Harry was a dangerous man and had to be brought down. If responsibility ahead of rights caught on, there was no telling what might happen at Fracas Falls.
Harry’s point is the point and purpose of this book. A balance of rights and responsibilities—privileges and obligations—is necessary for people to live successfully in a condominium or planned development. Balance is achievable only when everyone involved understands or, at least accepts, the organization to which they will belong as paying members.
At Fracas Falls the scales had tipped dangerously toward rights and away from responsibilities—just as we find happening all too often in modern society. In this case, the scale was close to toppling completely. Already the word had gotten around real estate circles that it was nearly1 impossible to sell Fracas Falls units because the complex showed so poorly. With goats in one back yard, with their odor and constant braying; the guest parking filled with old Yugos in various states of decay; and the balcony sagging with the weight of a water-wasting spa, there were more than enough turn-offs for potential buyers. But there were still others. The grass had been worn away where children rode their bikes and the cacophony raised by Big Wheels racing around the circular drive assaulted the ears without mercy.
Harry’s neighbors were angry that their property values had sunk to the bottom of the condo market. Naturally, they blamed the directors. Some had filed lawsuits against the association, a move that made potential buyers even more skittish. The board of directors, made up of homeowners, faced high turnover. There were monthly resignations. Appointments filled the vacancies but the homeowners coming forward to accept the jobs were interested not in the overall problems at Fracas Falls, but simply wanted special approvals for their own purposes: converting the attic to a guest room and adding a dormer window to the roof; installing a large revolving clothes line; plastic flamingos on the common area lawn; a wind chime collection; and a breeding kennel for llamas.
A few courageous directors were determined to reverse the trend. They were constantly vilified as they tried to put an end to bicycles on the lawns, parking in the fire lanes and speeding cars. They had difficulty reaching a quorum at board meetings, some having quit going to meetings reasoning that it was a dirty job and they did not want to do it. Who could blame them—they were doing all the dirty work—for free—taking all the blame, and losing their friends to boot.
Fracas Falls Condominiums may sound like an exaggeration but there is nothing in Harry’s story that could not happen in any other association (except for maybe Harry himself). Substitute the goats for chickens or a rooster and we may be telling your story instead of Harry’s. Whether a complex is allowed to degenerate into a “Fracas Falls” is entirely up to its homeowners (remember—board members are also homeowners).
This book illustrates how different forces affect homeowner associations in California. State statutes, federal law, local ordinances, utility company regulations, assessment districts, state-imposed corporate mandates, mortgage lender policies and the governing documents of the associations themselves all bear on operation of homeowner associations. But the single greatest force is the combined will of the homeowners to maintain their property values and to actively participate in (or at least grudgingly accept) cooperative living as a way of life.
In the following pages you will find references to the guiding laws and statutes should you need to do further research. Sections of the California Civil Code are referenced by section, e.g. (§1351), and other laws and codes are spelled out in full.
The law depicted in these chapters is current as of July 1, 2005. Much of the information is, however, timeless. Laws will continue to change, but human nature will not. It is the melding of these two polar forces that makes living in a condominium or planned development challenging and rewarding. The authors hope you will find this book fun as well as instructive. Most of all, we hope that you all find the key to your own castle, keep it, and live happily ever after.
So as you can see, I have a hard time feeling sorry for any owner that does not recognize that along with rights in an HOA come some responsibilities.