|"My Turn" opinion piece
published 11/28/08 in the Scottsdale Republic
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Click HERE for the text of the original article on which I am commenting
HOAs also benefit homeowners
In "Home buyer must agree to CC&Rs" which appeared in Saturday's paper, Mr. Clint Goodman answers the question but misses the point.
The question asked was if a person buying a home in a Home Owner's Association (HOA) is bound by the CC&Rs. Mr. Goodman notes correctly that CC&Rs are a contract, and buying a home in that HOA makes the buyer a party to that contract. But Mr. Goodman states "no one should be forced into a contract." Unless the homeowner is purchasing the home at gunpoint, the prospective buyer is never being "forced into a contract."
Even more importantly, Mr. Goodman misses the whole point of HOAs. HOAs are designed to enhance and protect the value of the homes in their associations!
Yes, home owners give up some rights when they move into an HOA with CC&Rs. They may cede such "rights" as: the "right" to paint purple polka-dots on the outside of their homes; the "right" to leave their garbage cans or debris in view of neighboring property; the "right" to allow the exteriors of their homes to deteriorate; the "right" to add a second story which blocks others' views of neighboring mountains; the "right" to place advertising signs in their yards or windows; and the "right" to park a large RV along the side of the home.
Note that if you lived in a neighborhood without CC&Rs, any or all of these "rights" might be exercised by your next-door neighbors.
By limiting "rights" of some homeowners who would break these rules, and by providing and maintaining common areas, clubhouses, swimming pools, and other community amenities, HOAs enhance and protect the values of all homes in the HOA and the lifestyle of the residents. Especially in today's market, protecting home values is paramount among the responsibilities of HOAs.
If I had to sell my home today, I would be grateful my HOA prevents my neighbors from painting their homes fluorescent pink or leaving piles of rubbish in their front yards - even if that means my own choice of house colors is limited to a specific list.
It's true that a few HOAs have gotten overzealous and unreasonable in enforcing their rules - and those boards deserve to be sued by victims of their unreasonable demands. But any board that doesn't reasonably and fairly enforce the CC&Rs would be subject to lawsuits from residents who DO follow the rules and who see their property values damaged by neighbors who DON'T follow rules. It's the responsibility of the HOA to enforce - fairly and consistently - all the HOA rules.
Buying in an HOA is signing a contract to abide by the rules. Buyers who don't want to abide by that HOA's rules should look elsewhere. But those same buyers should understand that those rules, along with the HOAs amenities, enhance and protect the value of their homes.
Mr. Goodman hints we should encourage our legislators to allow homeowners to ignore these contractual obligations when homeowners "could not find a newer home elsewhere without CC&Rs." That will be a sad day, indeed, when our legislature allows anyone in an HOA to avoid or ignore any rules simply because they didn't like the rules. Those rules were designed to protect the values and lifestyle of the residents.
I sincerely hope Mr. Goodman continues helping homeowners deal constructively with the few unreasonable and draconian HOA boards. The firm for which he works has a web site with some excellent advice for people considering purchasing in an HOA. But I wish his article had done a better job of helping readers recognize the tremendous value HOAs bring to people who chose to buy there.
Original article to which I am responding. This original article appeared 11/22/08 in the Scottsdale Republic:
Home buyer must agree to CC&Rs
I want to buy a new home, but all of the newer homes are in HOAs with CC&Rs. If I want to buy a new home I will be forced into a contract. Am I right?
A: CC&Rs are contracts between homeowners and their respective homeowners associations. These days finding a newer home in the Valley not in a homeowners association is close to impossible. To my knowledge at least two municipalities require that home builders create homeowners associations to maintain recreational areas, parks, private streets or walkways within the proposed developments. This is a problem because it can severely limit a prospective buyer's options, even in today's market.
Mandatory homeowners associations are a concern for many. Some Arizona lawmakers have even entertained the idea of requiring that a percentage of residential developments in each municipality be built without a homeowners association. Only time will tell if this idea flourishes and makes its way into Arizona Law.
No one should be forced into a contract. The law i clear on that point. However, current state laws do not address whether homeowners can void out their CC&Rs because they could not find a newer home elsewhere without CC&Rs. Perhaps the law many change in the future, but until that day I would recommend that you write your state senator and representative about your concerns.
Clint Goodman is a lawyer with Jackson White, practicing in the areas of real estate and association law. Questions Goodman answers in this column are general in nature and his responses should not be construed as legal advice from either him or the Republic.
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