IreneP
(Arizona)
Posts:21
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| 11/16/2011 1:43 PM |
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| How can individual homeowners enforce CC&Rs if there is no HOA? Yes, anyone can file a lawsuit in court, but if there is no Architectural Control Committee, or Board members, who is the controlling mechanism? |
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TimB4
(Virginia)
Posts:3801
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| 11/16/2011 1:57 PM |
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Irene,
A Homeowner may enforce deed restrictions by taking alleged violators to court. Other then talking to the violator to see if they will comply on their own, this is the only way a homeowner may enforce deed restrictions.
If there is an Association to oversee the deed restrictions, the Association may have other options (fining, etc.) available or may be the entity that takes the violator to court to enforce compliance.
Do you know for a fact that there is no Association or has the Association just gone dormant due to membership apathy?
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MelissaP1
(Alabama)
Posts:2207
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| 11/16/2011 2:02 PM |
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You may want to consult your city's code department. They may assist you as some types of violations may fall under their domain. My ex's neighborhood didn't have an "HOA" but did have some restrictions. One couldn't put a trailor on the lot's. The city/county would have to enforce those restrictions.
What kind of violation are we talking about? This may help in how best to address the issue. |
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Former HOA President |
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TimB4
(Virginia)
Posts:3801
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| 11/16/2011 2:05 PM |
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Melissa,
If you read Irene's other posting in a different thread she appears to be the alleged violator vs. the one who wants to enforce the covenants. |
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MelissaP1
(Alabama)
Posts:2207
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| 11/16/2011 2:20 PM |
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Thanks Tim. I didn't see the other posting. Seems if they are the possible violator, they can have the option to counter-sue if they were to be brought to court. This is a much cheaper solution for them. The burden of proof is still there to present that the HOA is defunct and the CC&R's invalid. Which the CC&R's could very well be defunct for a variety of reasons. It could be an expiration thing or the developer turned over to the membership who didn't pick it up. May want to research that history.
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Former HOA President |
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IreneP
(Arizona)
Posts:21
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| 11/16/2011 2:32 PM |
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Thanks for the replies. Yes, we are the ones being sued by our neighbors. The Plaintiffs already sent an anonymous letter to the City in 2006. The City doesn't have any problems with our prestine property. You see my husband is a U.S. Marine, he is very meticulous.
From 2000 to 2004 we had three developers. The developers were, in effect, the HOA. But since 2004 there has never been a controlling body. We all have just policed ourselves.
That being said, are the CC&Rs valid if no one has enforced them and there is no controlling body?
Now we have two homeowners who have continually harassed us in one way or another. All documented. We have a Preliminary Injunction hearing the end of November, 2011.
We never imagined that only CC&Rs could cause such problems to a homeowner. Never again will we move into a community with CC&Rs. |
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TimB4
(Virginia)
Posts:3801
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| 11/16/2011 2:42 PM |
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Posted By IreneP on 11/16/2011 2:32 PM
That being said, are the CC&Rs valid if no one has enforced them and there is no controlling body?
Yes they are valid.
The controlling body would be each party of the contract (i.e. each individual homeowners). Enforcement would be done, as you are finding out, through the courts by someone filing legal action against another.
Posted By IreneP on 11/16/2011 2:32 PM
We never imagined that only CC&Rs could cause such problems to a homeowner. Never again will we move into a community with CC&Rs.
I understand that sentiment. The reality is that HOAs are here to stay and if you want to move into a new development there will most likely be deed restrictions.
If you have requested permission and have something in writing from the developers allowing the things that are alleged violations, this would be your defense.
Is the development still under developer control? If it is, even if the builder isn't doing anything, they would most likely be the Association.
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MelissaP1
(Alabama)
Posts:2207
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| 11/16/2011 2:53 PM |
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The developer's create HOA's as "sales tools" for them to sell the property. What better tool than to let people think they can control their enviroment and sales value of their homes by enforcing their own rules? It all sounds good in the sales speech. Which is probably the pill these neighbors swallowed and won't cough back up...
It seems you are no longer developer controlled. I would go to your Records department to get the copy of your CC&R's they have on file. These are considered PUBLIC records. Make sure they have the proper conditions when the developer turns over the HOA to the owners. Our has the caveat that we have to be turned over to a Property Manager if we were to disband and the owner's didn't want control. Find out what your documents state about disbandment of your HOA and what it defines.
Like my other advice in other posts, you may consider a counter-suit if possible. It doesn't have to be for the same thing they are suing you for. You may be having other related costs your experiencing because of this. For example: You may have to hire a contractor to fix the violations or give you an estimate. The cost for that may be part of your counter-suit. I'd consider racking up a few "expenses" if possible showing the court your damages you have incurred because of their actions. It's not just the lawyer costs.
I hope you have a lawyer and they familiar with contractual laws. Not sure if you need a lawyer versed in real estate law. This is more of a contractual situation than real estate even though real estate is involved. Save some costs with limiting contact with the attorney. They will charge you for a phone call so don't leave your name to call back if they are NOT in the office. It's a trick of some lawyers to use this as a basis to charge you. Plus limit emails, as those can be charged too.
This sounds like a winnable case for you. They are barking up the wrong tree. Hopefully, it will all be tossed out. Just be aware that there may be other legal avenues if they don't succeed in court. Protect yourself against those if possible. |
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Former HOA President |
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TimB4
(Virginia)
Posts:3801
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| 11/16/2011 2:55 PM |
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Irene,
Seek the advice of a local attorney and see if Laches would be a valid defense.
Laches might be used if it has been a long time since your shed (or whatever) has been up before the complaint.
law.com definition of laches
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SteveM9
(Massachusetts)
Posts:1529
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| 11/16/2011 4:33 PM |
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That being said, are the CC&Rs valid if no one has enforced them and there is no controlling body?
Yes, a neighbor can sue you to enforce the your CCR's and deed restrictions. If you loose, you may be forced to comply, and also owe all the money they spent on lawyers to sue you. If you are in violation, seek advice from a lawyer, and see if you can settle before this gets expensive for you. |
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IreneP
(Arizona)
Posts:21
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| 11/16/2011 7:12 PM |
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Thank you for everyone's valued comments.
No, we cannot afford an attorney. We are hard working self-employed people who just want to be left alone. We were the first owners in this subdivision, spent over $80K in improvements to our property and we will not be driven out.
There is no HOA and there never was. I haven't found anywhere in the CC&R document where it states anything about turning over control. To start an HOA it requires 70% approval.
The CC&Rs have never been enforced until now, 11 years later. I would like to attach the CC&Rs but this system does not allow large docs.
The type of harassment we've experienced by these sueing homeowners are:
Police calls about BBQ lights, motion lights, boat motors and music prior to 6pm, cars and trailers parked on the "City" street. All with "Unfounded" "No problem" reported by the police dept. Helicopter flyovers from 2009 by one of the Plaintiffs right over our house, after the wife calls him that we are home. Watching us from her kitchen window when we leave for work and when we return. And there's more. We have had mutual Injunctions Against Harassment against both these complaining parties. And this most recent one against one of them in July, 2011 was transferred over to the Superior Court Judge, when the presiding Judge found out there was a lawsuit pending.
We are writing about our ordeal in the hopes that other people out there will gain some insight about having CC&Rs with NO HOA when they encounter problems. We have not found ANY cases in AZ that deal with this issue.
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IreneP
(Arizona)
Posts:21
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| 11/16/2011 7:15 PM |
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| Thank you Tim. My husband found the doctrine of laches, but we're finding out, from talking with legal professionals, that this is seldom used. We will defintely throw it their way in Court. |
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IreneP
(Arizona)
Posts:21
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| 11/16/2011 7:18 PM |
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Tim, no we are not under developer control or any other control. Just the deed restrictions. And the funny thing is they are ONLY sueing us, even though other homeowners in the dev. have similar alleged violations.
We are going under the pretext of prejudicial enforcement. |
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LarryB13
(Arizona)
Posts:425
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| 11/16/2011 10:36 PM |
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I have owned three houses in Phoenix over the years. Two had CC&R's without associations. The other had no CC&R's at all.
When you have CC&R's without associations the only way to enforce them is through court action. One or more owner has to spend his money to sue one or more other owners. Since Arizona common law holds that CC&R's are a contract between all owners, the prevailing party can recover his costs and attorney fees from the losing party.
Irene, you have three options. First, give in and end the bickering. Second, go to court without an attorney where it is most likely you will lose and have to pay the other party's costs. Third, hire an attorney to advise you whether you have a viable defense and, if so, go to court, win, and let your neighbor foot the bill for your defense.
If your property is located in Maricopa or Yavapai county, the recorded CC&R's are viewable online. You can locate them and post the link or tell us the recorded name of the subdivision and I will find it. |
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BradP
(Kansas)
Posts:2491
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| 11/17/2011 6:12 AM |
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Irene:
can we ask exactly what the issue is they are suing you for? Unfortunately with Deed restrictions it is often times homeowner's try to fight and learn an expensive lesson. Without knowing what the issue is I would advise you to seek a resolution outside of court. |
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IreneP
(Arizona)
Posts:21
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| 11/17/2011 7:18 AM |
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| Thanks for the info but, first why would we give in? That's a defeatist attitude. We were the first ones here and we are the ones being harassed. Second, just because we don't have an attorney doesn't mean we won't win if we have all the facts, permits and documentation. And third, you must be an attorney. Not everyone can afford attorney's. We'll take our chances and go at it alone. We are confident WE WILL WIN. |
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IreneP
(Arizona)
Posts:21
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| 11/17/2011 7:24 AM |
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| I have addressed that in my previous posts. Yes we will fight because we were here before any of these people moved in and built our property to what it is today. Like the gentleman Larry posted, just give in? Why give in when you are right? |
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JohnB26
(South Carolina)
Posts:579
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| 11/17/2011 7:42 AM |
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go to the 'registrar of deeds' and get a CERTIFIED copy of the CCRs applicable to your deed
READ SAID DOCUMENT
most have clauses stating that non-enforcement does NOT preclude future enforcement
if you are in violation -> you really should comply with the 'docs'
if you are NOT in violation -> remember what A. Lincoln said: "Man who represents self in court has a fool for a client." ... the plaintiff will pay your costs when they lose
if the issue is in doubt -> you need to weigh the costs of fighting versus the costs of 'complying'
ps. the fact that 'you were there first' has NO BEARING as to the deed restrictions you accepted when you purchased |
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SteveM9
(Massachusetts)
Posts:1529
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| 11/17/2011 7:43 AM |
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Not everyone can afford attorney's. We'll take our chances and go at it alone. We are confident WE WILL WIN.
The cards are stacked against you. Lawyers know the technicalities that will cause you to loose. If you loose I'm guessing you could end up owing about $5,000 to in legal fees for the other party. If you refuse to pay your wages could be garnished, assets sold, contempt of court, etc.
Spending $200 to talk to a lawyer that may give you some ideas on how to deal with this will be a bargin. |
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IreneP
(Arizona)
Posts:21
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| 11/17/2011 7:50 AM |
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That may be so, John, but my question has been the fact that these CC&Rs have never been enforced for 11 years by anyone. No one seems to be able to answer that question. If it is a contract, in AZ the statute of limitations for written contracts is 6 years.
And yes, I already have read both the 2000 and the 2004 CC&R versions word for word. The 2004 version is applicable to our deed, but we bought in 2003? But the original CC&Rs were recorded in 2000. |
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IreneP
(Arizona)
Posts:21
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| 11/17/2011 7:53 AM |
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ps. the fact that 'you were there first' has NO BEARING as to the deed restrictions you accepted when you purchased
John, The deed restrictions we approved were in DRAFT ONLY in 2003 when we purchased. We were to be provided with the final recorded CC&Rs, but never were. |
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LarryB13
(Arizona)
Posts:425
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| 11/17/2011 10:03 AM |
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Posted By IreneP on 11/17/2011 7:18 AM
Thanks for the info but, first why would we give in? That's a defeatist attitude. We were the first ones here and we are the ones being harassed. Second, just because we don't have an attorney doesn't mean we won't win if we have all the facts, permits and documentation. And third, you must be an attorney. Not everyone can afford attorney's. We'll take our chances and go at it alone. We are confident WE WILL WIN.
Irene:
You said you could not afford to hire an attorney. Going into Superior Court without an attorney is a high-risk situation. Your chances of winning are low. You claim to have all the facts. This forum permits you to state those facts yet to date you have presented only opinions and conclusions. If you cannot make a presentation of facts here, how do you expect to present facts in court where you must do so within the confines of the Arizona Rules of Evidence? You have read those rules, right? And the Rules of Civil Procedure? And the local rules? Have you filed the Disclosure statement required by Rule 26.1? Do you know how to write a Memorandum of Points and Authorities? If the other party were to cite Smith v. Jones, 123 P.3d 456, 78 Ariz. 910, (App.1984), do you know what that is that and how to find it?
If you cannot afford your own attorney then you are foolish to allow yourself to get dragged into court with the risk of paying for the other party to ruin your life. Giving in is just a way to minimize your risks.
Your argument that you were "the first ones here" tells me that you have no clue as to what you are doing. You bought the property subject to the same CC&R's as your neighbors. Whether you were the first buyer or the last buyer is irrelevant to the merits of your case.
No, I am not an attorney. I have, however, represented myself in the courts in Arizona for 35 years and I know the risks involved in doing so. |
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IreneP
(Arizona)
Posts:21
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| 11/17/2011 10:27 AM |
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| Larry, thanks for the wisdom. We have all the facts in our case and don't want to go too much into it here. Looked up Smith v. Jones and there is no case like that in AZ. |
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JohnB26
(South Carolina)
Posts:579
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| 11/17/2011 10:50 AM |
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CCRs can and do change .... if you are developer controlled, you are a screw in the process of being tightened, if you were developer controlled from 2000-2004 and you bought in 2003 ... you are the above mentioned screw
any and all changes in the CCRs will be recorded WITH YOUR DEED
SEE THE REGISTRAR to see what, exactly, is recorded PRESENTLY with your deed
YES, Virginia, changes to the previously recorded CCRs and properly filed with your deed CAN BE RETROACTIVE
YOU NEED AN ATTORNEY ASAP |
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LarryB13
(Arizona)
Posts:425
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| 11/17/2011 10:54 AM |
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Posted By IreneP on 11/17/2011 10:27 AM
Larry, thanks for the wisdom. We have all the facts in our case and don't want to go too much into it here.
Then why did you post here? You asked a question in your original post ("who is the controlling mechanism?") but you refuse to provide the factual background that would allow anyone to answer the question. Gee, I wonder why you have a problem with your neighbors! |
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JohnB26
(South Carolina)
Posts:579
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| 11/17/2011 11:00 AM |
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ps. it does not matter what YOU (personally) approved .... it only matters what was 'passed' and filed with/against your property/deed .... WHICH YOU AGREED/CONTRACTED TO/FOR when you purchased the property
CAVEAT EMPTOR
you really sound like the fool referenced by A. Lincoln |
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MelissaP1
(Alabama)
Posts:2207
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| 11/17/2011 11:36 AM |
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| I don't think you will lose and applaud your effort in keeping on fighting. My words of advice is to protect yourself the best you can if you do lose. Minimize your losses if need be. However, keep going with your fight until your comfortable with your situation. I wish you the best of luck and hope you are able to win. |
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Former HOA President |
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TimB4
(Virginia)
Posts:3801
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| 11/17/2011 12:57 PM |
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Posted By IreneP on 11/17/2011 7:50 AM
No one seems to be able to answer that question. If it is a contract, in AZ the statute of limitations for written contracts is 6 years.
Irene,
As you know, I am not an attorney and I do not work within the legal profession. I did understand your impression about the statute of limitations for written contracts. As I posted earlier, I even looked up that statute. To me, that statute does not apply in your case. This is because the statute applies to owing debt and states this in it's title: Contract in writing for debt; six year limitation; choice of law. Although CC&Rs are considered a contract, it is not a contract of indebtedness. Additionally, most language within CC&Rs bind them to the land and are automatically removed.
I am concerned that if this is your main defense that you will lose.
Additionally, most CC&Rs have language that requires prior approval before making exterior changes. Therefore, no matter what the change might be, if prior approval was not sought, you would be in violation. I think your best defense would be to show where you received approval from the developer (who was in charge of the Association at the time) or at least requested it.
Irene, we are here to help if we can. Some of the members of this forum have had to defend similar issues and some have been the enforcer. This is why everyone is saying to dig up the money or go to legal aid but you would be better off having an attorney with you when entering a court of law that isn't small claims court.
You stated earlier that you would provide a copy of your CC&Rs if asked. I would be interested in viewing them. My e-mail is tim_at_work@verizon.net
Here is a link to AZ 12-548 The law being referred to.
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BradP
(Kansas)
Posts:2491
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| 11/17/2011 1:08 PM |
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Irene:
I respect your desire to fight but am afraid you will get not only defeated but socked with laywer bills from the other party. There is nothing wrong in life with taking a step back and reassing your situation. Like Tim I do not believe your statute of limitations defense will hold any water. Futhermore, there is typically a clause in every set of documents that says something to the effect of failure to enforce these rules does not waive the right to enforce them or others in the future. If you were fighting an HOA I woudl say your defense might hold water. However, you are being sued by someone else who does not have the duty to enforce these covenants on everyone. They, for whatever reason, decided they wanted you to follow it and that is there right and there fore your entire defense of statute of limitations and they haven't enforced before holds zero water.
Bottomline, when you bought your home, you agreed to the restrictions. If you are not in compliance and someone is suing you for that in my opinion you have no defense and will lose big. |
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IreneP
(Arizona)
Posts:21
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| 11/17/2011 2:05 PM |
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Larry, I apologize for my statement previously. You are right about posting here if I wanted answers. Everyone who has responded seems genuinely concerned and we appreciate that kindness.
I was having difficulties uploading our documents here because of their size, but found a way.
2000 CC&Rs - https://acrobat.com/#d=Wc-9Nx6mVbkir9FzUctMbw
Letter from us responding to Plaintiffs attorney re: their problems with our property (no HOA)- https://acrobat.com/#d=0eY9*Y3Pvx4Qqt2Oi1ihwA
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