> Jim,
> Your analogy to seatbelts doesn't hold water. An automobile which did
> not have them when the law was passed, is NOT affected by that law.
> I believe that you will find that a change in CC&R by a HOA would NOT be
> enforceable upon those whose 'structures' had NOT violated the CC&R
> previous to any new rule.
> "Grandfather Clause" .. a good attorney should be able to keep the HOA
> from imposing upon someone who had built 'in good faith' and in
> accordance with the rules AT THE TIME OF THE CONSTRUCTION.
> A better analogy:
> A homeowner, following all the CC&R restrictions, or lack of them,
> paints his house green and purple, CANNOT be forced to paint it
> otherwise, IF the CC&R did NOT restrict him from doing just that. I am
> NOT referring to vague or ambiguous wording that MIGHT allow the HOA to
> interpret what is written into the CC&R.
You're right, the seatbelt analogy was poorly chosen. Make it "wearing
seatbelts"..
There is an interesting aspect, and I suspect that an attorney would have a
better read on it, but consider this. Our HOA passed a rule that prohibits
you from leaving your trash cans out on the street more than 24 hrs after
the pickup. (as it happens, the city has a similar law). However, both
this, and the seatbelt wearing, regulate a "behavior" not a "thing", and
furthermore, there's no easily ascribed "cost" to following the rule.
In the case of an antenna, they'd be regulating a thing, and furthermore
there'd be a cost involved (so it would be a "taking", potentially). In the
case of a governmental agency, they couldn't do it because of the
constitutional problem (the taking) (although, they could compensate you for
it under eminent domain).
However, an HOA is a weird beast. It's a contractual obligation that you
voluntarily entered into, including obligating yourself to be bound by
future rule changes, no matter how bizarre or costly for you personally.
HOAs do such things all the time: Turning the tract into a "gated
community", hiring 24hr guard services, adding swimming pools, installing
common antenna systems,etc. All of these cost money in the form of
assessments or raised monthly fees, even if I personally don't particularly
want them.
The HOA board could, indeed, make a rule that all houses have to be painted
purple. Most likely, the homeowners would rise up and smite the board in
such a case, or, alternately, ask that the HOA supply the paint and labor.
The question is whether the HOA can make a rule that affects a small
minority of the homeowners (that is, can they make just you, or houses whose
numbers end in 2, paint them purple, while leaving all the rest intact).
My HOA rules and the CC&Rs don't have anything in the 100 or so pages that
requires them to be "fair and even handed" but I suspect that there is
common law that would do so, and that if the HOA board (or, for instance 2/3
of the homeowners amended the CC&Rs) did the paint 10% of the houses purple
thing, the courts would hold it invalid.
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