[TowerTalk] HOA Abuse

Tue Jul 6 07:59:48 PDT 2010

    Absolutely unbelieveable!   I pray that Capt. Clauer gets swift refief
from this CF from his HOA.

    I live in what was a rural area just outside of Fort Worth.  We are now
100% surrounded by homes and their HOA's.  Although the case cited is the
most agregious I have heard of, it does not surprise me.  Locally HOA's levy
$500+ fines on a daily basis for the craziest things.  They have even gone
as far as claiming the owners mineral rights and/or the executive rights to
same. Legalized theft is kind.  HOA Nazi's is more like it...

    To the legal Beagle's on the reflector (meant kindly), thanks for
sharing your views.  Texas also has this thing called n Homestead exemption.
Aside from tax breaks and other so called benefits, the declaration of same
was supposed to help prevent one from loosing ones home in most situations
(Or so I was told).  Anyone care to comment if HOA law trumps the Homestead
act?

Thanks...

73's  Mike K9MK

-----Original Message-----
From: towertalk-bounces at contesting.com
[mailto:towertalk-bounces at contesting.com] On Behalf Of Paul Christensen
Sent: Tuesday, July 06, 2010 9:31 AM
To: TOWERTALK at contesting.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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