One thing is certain: None of us have all the facts, so there's a lot of
speculation here.
On the one hand, the idea that if they owned the house free and clear,
certainly they could afford the dues may be specious; the man does not appear
to be a career officer, as he was "called up" to active duty. He may have
taken a 60% pay cut when called from reserves to active duty, creating real
hardship.
On the other hand, per this article,
http://www.wfaa.com/news/local/HOA-that-Foreclosed-on-Active-Duty-Officer-Getting-Death-Threats-96842614.html,
the family was behind on HOA dues before he was even called up and deployed
and had been sent notice of such delinquency; and when gone overseas, his wife
did not open mail from HOA, return calls, etc.
Does the law create unjust enrichment? Perhaps, but that's a question of
substantive due process, perhaps: does the law, when duly followed, deprive
someone of property without due process? Some of us think that line of
reasoning is a slippery slope, but it's used in many cases.
Some states require all developments to have HOAs and covenants, without
dictating the terms of those covenants; combined with the issue of HOA
'annexing" it does raise a question as to when a voluntary association becomes
a body of government, or is no longer voluntary.
At a deeper level it may be a symptom of how a society can move from a system
of minimal necessary restriction on individual choice to increasing
regulation/limitation of choice, as more bureaucracies are created,
bureaucracies which often do not have the power to say "yes" but can safely
say, "No."
KØRO
--- On Tue, 7/6/10, Jim Nail <james.nail@att.net> wrote:
From: Jim Nail <james.nail@att.net>
Subject: Re: [TowerTalk] HOA Abuse
To: "Paul Christensen" <attorney@immigration-lawyer-us.com>,
TOWERTALK@contesting.com
Date: Tuesday, July 6, 2010, 9:54 AM
Normally any HOA ive been around only has the ability to place a lien on the
property, not foreclosure! Are these new laws so dominating that you can't do
anything? Jim WA2MBP
Sent via BlackBerry by AT&T
-----Original Message-----
From: "Paul Christensen" <attorney@immigration-lawyer-us.com>
Sender: towertalk-bounces@contesting.com
Date: Tue, 6 Jul 2010 10:30:37
To: <TOWERTALK@contesting.com>
Reply-To: Paul Christensen <attorney@immigration-lawyer-us.com>
Subject: Re: [TowerTalk] HOA Abuse
> The guy agreed to the HOA rules. They did not respond to
> the bills. You don't pay your bills, you lose what you have.
>
> I am not real sure where the issue is.
Good point, but if you were serving in Iraq and the situation occurred to
you (however unlikely), I am 100% confident you would not sit back and say
"I deserve to have lost my $300,000 home while serving my country because of
my wife's failure to make timely payments." If the NPR story is correct,
two payments went delinquent. That said, even though the covenants operate
under the general principles of contract law between parties, an important
part of general contract law relates to the concept of "unjust enrichment."
Notwithstanding any potential relief under the Servicemembers Civil Relief
Act, he may have a defense in the unjust enrichment that resulted in the
loss of his home, triggered by language in the agreement. Whether or not
the State of Texas understands that concept remains to be seen.
In effect, the circumstances in the captain's case amount to "legalized
theft." Another general principle of contract law is that a breach
resulting in damages is generally limited only to actual damages, regardless
of what's been agreed to in writing. Even an agreement between parties to
liquidated damages or specific remedies in the event of breach must be
reasonable. It's pretty difficult to believe that missing one or two HOA
payments results in damages to an aggrieved HOA that far exceed actual
damages. If that kind of condition operates as a matter of law, then the
constituents of Texas need to apply pressure to their elected officials to
change the law. However, consider that in Texas, Republican State Senator
John Carona owns the largest HOA management company in the country -
Associa, which has more than 100 offices, 6,000 employees and 7,000 HOA
clients in 30 states and Mexico. So, as a tax payer in his legislative
district, do you take your issue to a senator who has a clear
conflict-of-interest in the very law for which he has significant influence?
I hope the present homeowner doesn't get too comfortable in his or her new
surroundings. Frankly, even if the captain later loses his case in court, I
hope his community pulls together to apply substantial pressure on their
state legislature to find an alternate means of dealing with this -- for
example, allowing other personal property to satisfy a debt while leaving
foreclosure of the home as a last resort. Also, property owners may want to
work with their HOAs to place dues/fees in escrow ahead of time they become
due and payable.
Paul, W9AC
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