[TowerTalk] HOA Abuse

Tue Jul 6 08:59:26 PDT 2010

Doesn't the "Soldiers and Sailors Relief Act" come into play here somewhere ??

73, Dick, W1KSZ

> Date: Tue, 6 Jul 2010 08:44:14 -0700
> From: atrampler at att.net
> To: attorney at immigration-lawyer-us.com; TOWERTALK at contesting.com; james.nail at att.net
> Subject: Re: [TowerTalk] HOA Abuse
> 
> 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 at att.net> wrote:
> 
> 
> From: Jim Nail <james.nail at att.net>
> Subject: Re: [TowerTalk] HOA Abuse
> To: "Paul Christensen" <attorney at immigration-lawyer-us.com>, TOWERTALK at 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 at immigration-lawyer-us.com>
> Sender: towertalk-bounces at contesting.com
> Date: Tue, 6 Jul 2010 10:30:37 
> To: <TOWERTALK at contesting.com>
> Reply-To: Paul Christensen <attorney at 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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