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MaryA1
(Arizona)

Posts:1562

06/30/2008 10:50 AM
Billie, Frankly I think your thinking is a little off kilter, and I don't say this disrespectfully. You said: "You and the person posting after you may have missed this key part: The corporation, the association, need not be dissolved. It may continue in existence. The only thing that has changed is that the shareholders have disavowed or rejected their shares, that is, their membership, and removed the restrictions from their property records. No one can force you to continue to keep shares in a corporation. If you want, for example, you can send your shares of IBM back to IBM at any time." Originally I really thought you were saying YOU could just resign from the assn. Now I understand you're saying all the members can resign. The only way that can happen is if the HOA dissolves. Unlike what you describe in your scenario, the HOA (the corp) does not continue to operate. As long as there is an HOA the members cannot resign: not one member, not ten members, not all of the members -- period! You also say: "No one can force you to continue to keep shares in a corporation." First of all membership in an HOA does not equate to shares in a corp.; however, you statement is false. Secondly, YES you can be "forced" to remain a member of an HOA! If the HOA is mandatory, you are a member as long as you own the property. (I'm speaking of you individually.) To dissolve the HOA takes a required % of the members. If the vote carries, then the HOA no longer exists. The BOD must adopt "articles of dissolution" which would state how the assn's assets are to be distributed -- the assets include the common areas. The BOD would have to transfer title of all properties to whomever is going to purchase or take over those parcels owned by the HOA. What I've described is the procedure in AZ; other states may have other procedures to follow. But, contrary to your thinking, the corp. does not remain in existence!

MaryA1
(Arizona)

Posts:1562

06/30/2008 11:03 AM
Billie, Originally you stated corp. law applied now you say: "As far a property law, the courts do not favor any kinds of restrictions and will rule against them when there is any doubt." This is totally false. I know of quite a few cases where the courts have upheld the CCRs and they definitely do defer to the restatement of covenants when making their rulings. There is case law in MO and several other states where parking restrictions on public roadways have been upheld because they are stated in the CCRs. Even the FCC will not rule against restrictions prohibiting ham radio towers in deference to the CCRs.

BillieE
(Iowa)

Posts:9

06/30/2008 5:23 PM
MaryA1, Where to begin…? It never ceases to amaze me how so many people, whose homes are in associations, are so misinformed about the relevant laws and court cases – corporate, real property and real estate, contract, housing, and constitutional, to name a few. First, you state that members (shareholders) of a corporation (HOA) can withdraw from the corporation/association only if the corporation/association dissolves. You state that, “As long as there is an HOA the members cannot resign.” Membership in a corporation/association is not mandatory if ALL members/shareholders elect to withdraw and collectively file new property records that abolishes all covenants and asserts that the corporation/association has been abandoned. As an example, if the corporation/association has no board of directors or officers after such a withdrawal, the corporation/association would be powerless and a third party (e.g., municipality) would have no one to proceed against. You say that, in my “scenario, the HOA (the corp) does not continue to operate.” I don't understand this statement, but I think you are still stuck in the thinking that the corporate association and the homeowner membership in that association are one and the same. You also state that, “membership in an HOA does not equate to shares in a corp.” Au contraire. Under most state laws an association IS a common non-profit domestic corporation. The members ARE shareholders. Corporate law DOES apply. You state that one “can be ‘forced’ to remain a member of an HOA! If the HOA is mandatory, you are a member as long as you own the property.” Remember, MaryA1, that any relationship a property owner has with the corporation/association comes only through that person’s deed, that is, the terms found in the government’s record of that property. Follow the thought here if you can … if ALL of the property owners file (record) a new document that removes all restrictions and states that the properties are no longer subject to the association, then they are no longer members. Try to think this through this way: Assume you impose such restrictions on your own property. You create an association and file (record) documents that show your property is a mandatory member of the association. Your property is the only member of the association. Based on your assertions, you would be unable to file (record) a new document that removes such mandatory membership. But you should recognize that this is not true. It's your property and you can change the filings (recordings) pertaining to your property any time you wish. The only time there would be a problem is if at least one other property owner filed (recorded) the same documents showing mandatory membership. Now, under contract law, you two property owners are relying upon each other to remain bound to the membership requirement. So if either of you tried to unilaterally withdraw by filing appropriate documents, the remaining party would have the power to ask a court to force you to stop your attempt to withdraw. (This is where the reference to contract law arises.) If you've been able to follow this reasoning so far, you can see that if BOTH parties agreed to file such ‘withdrawal’ documents, the mandatory membership would be removed. As far as the county government is concerned, the corporation/association no longer exists. However, the state government would continue to recognize the corporation/association – even if the corporation/association no longer had shareholders/members. Eventually, the state would dissolve the corporation/association if no one filed required reports or paid necessary fees. Can you see this now? An association is a separate entity and is relevant only if a deed (property records) make a reference to it. If the property records show that everyone removed the mandatory membership terminology, then the association would continue in existence but it would have no shareholders or members. I don’t understand why this concept is the least bit difficult to understand. I've explained it now using several different examples. Of course, the property owners (members) can, as you describe, extricate themselves the old fashioned way if they want. They can follow the provisions of the association’s articles and bylaws and dissolve the association and their membership. This is not, as you say, “contrary to [my] thinking, the corp. does not remain in existence!” I said no such thing. Also, of course, the homeowners can conform to the CC&R provisions and vote to remove restrictions. I was hoping that this forum would have thoughtful participants who would take the time to follow one another’s reasoning and respond to the issues. However, it appears, based on your reaction, this appears to be another forum where people argue with blinders on, misquote others, and make personal attacks (“your thinking is a little off kilter”). I don’t have time to ‘cast pearls to swine.’ If you don’t get it; you don’t get it.

BillieE
(Iowa)

Posts:9

06/30/2008 5:43 PM
Posted By MaryA1 on 06/30/2008 11:03 AM Billie, Originally you stated corp. law applied now you say: "As far a property law, the courts do not favor any kinds of restrictions and will rule against them when there is any doubt." This is totally false. I know of quite a few cases where the courts have upheld the CCRs and they definitely do defer to the restatement of covenants when making their rulings. There is case law in MO and several other states where parking restrictions on public roadways have been upheld because they are stated in the CCRs. Even the FCC will not rule against restrictions prohibiting ham radio towers in deference to the CCRs. I will try to dumb this down as much as I can. Many laws and court rulings apply to property within a homeowners association. It is not contradictory to quote cases on property law and corporation law. You are certain (“totally false”) that courts favor restrictions on Americans’ rights to use their real property. That statement doesn't even stand up to logic, let alone the numerous court rulings. Think about what you're saying – that courts want to uphold all restrictions on the use of private property. That is nonsense. If you review as few as five court cases involving covenants, you will find at least one in which the court states that it does not favor limits on the use of one’s property and will subject any such restrictions to strict construction. In other words, an association must have strong evidence that a covenant is constitutional, is permitted by state and local law, is reasonably related to preventing a condition that is itself reasonable, and was properly adopted. Once the court finds that a restriction (CC&R) meets this strict test, it will uphold the covenant. You cite several examples of courts upholding restrictions. Did you think I said courts do not uphold covenants? That would be illogical. Think about it MaryA1, if courts didn’t uphold covenants, there would be no covenants. By the way, I sure would like to obtain the citation for the case you cited in which private property covenants were applied to government property (“parking restrictions on public roadways have been upheld because they are stated in the CCRs”). This is obviously an urban myth. Further by the way, “the FCC will not rule against restrictions prohibiting ham radio towers in deference to the CCRs” because federal law prohibits the FCC from doing so.

DJ1
(Ontario)

Posts:423

06/30/2008 6:17 PM
BillieE, thread aside, this forum is full of "thoughtful participants who would take the time to follow one another’s reasoning and respond to the issues." Posters disagree with one anothers position and debate the merits of an issue in a RESPECTFUL manner. People often misinterpret my posts and intentions and so I would hope the same can be said of your comment to Mary about dumbing down things. Disagree with an issue but don't insult the poster especially if you don't like forums full of personal attacks.

MicheleD
(Kentucky)

Posts:1445

06/30/2008 6:53 PM
Billie, I don't know who you are or where you came from, but our CC&Rs have been upheld and the judge referred to our CC&Rs in her ruling against the homeowner on a nuisance clause regarding their dogs. We also have numerous cases where courts have upheld parking restrictions against homeowners, even on roads not owned by the HOA (technically "owned" by the county). It's these cases where the parking restrictions are upheld and injunctive relief given that allows us to tow.

DonnaS
(Tennessee)

Posts:2299

06/30/2008 7:18 PM
Billie, And then there is the "NO PARKING OF PICKUP TRUCKS IN THE DRIVEWAYS" cases where the Judges upheld the associations ability to enforce this. Should this covenant be removed at the request of some homeowners who did not want to comply? Well guess what, the majority of members voted to keep the covenant in the CC&Rs and to continue to enforce it. (565 homes) And lastly, I am not sure that you fit the requirements for being on this site. It is for Board members, Committee members and Property managers, with the purpose of sharing positive comments and solving HOA problems. So far, you have just bashed your HOA and all HOA living. We cannot help you out of your situation and as repect for my fellow posters, I ask that you respond in a positive manner to them. Thank You!

BillieE
(Iowa)

Posts:9

06/30/2008 9:54 PM
DonnaS, Thank you for providing another example of missing the point. Many homeowner associations' covenants prohibit parking in driveways. And guess what? The courts enforce the covenants and the membership approve of them. The discussion point you were attempting to comment on regarded “public” property, not private. Driveways are private property; they are not owned by government entities. So private property restrictions can be applied to them. And lastly, I am not sure that you fit the requirements for being on this site. It is for people who confirm they understand the question or contribution submitted by another, are sure they can add to the conversation and can write in a understandable, congenial manner. Your wild accusations against a person who has spent hours thinking through a particular problem is not helpful. Accusing him of ‘bashing’ “your HOA and all HOA living” is not productive. I would encourage you to show more respect (not “repect”) for those of us who are trying to think our way through a difficult problem. By the way, DonnaS, do you remember the question that launched this thread? Your contribution did not address it.

BillieE
(Iowa)

Posts:9

06/30/2008 10:02 PM
Posted By MicheleD on 06/30/2008 6:53 PM Billie, I don't know who you are or where you came from, but our CC&Rs have been upheld and the judge referred to our CC&Rs in her ruling against the homeowner on a nuisance clause regarding their dogs. We also have numerous cases where courts have upheld parking restrictions against homeowners, even on roads not owned by the HOA (technically "owned" by the county). It's these cases where the parking restrictions are upheld and injunctive relief given that allows us to tow. MicheleD, I don't know who you are or where you came from, but in nearly all states judges uphold CC&Rs on a regular basis. Thank you for repeating the urban myth that private corporations, through their CC&Rs, can regulate public property. Since I'm not from your area, I don’t understand how a public roadway could be “technically ‘owned’ by the county.” I'm not familiar with “technical” ownership of property. Do you live in Louisiana? I understand that state’s laws are different than most. Are you a tow truck operator? Perhaps you could obtain a citation to the court decision to which you refer.

BillieE
(Iowa)

Posts:9

06/30/2008 10:16 PM
Posted By DJ1 on 06/30/2008 6:17 PM BillieE, thread aside, this forum is full of "thoughtful participants who would take the time to follow one another’s reasoning and respond to the issues." Posters disagree with one anothers position and debate the merits of an issue in a RESPECTFUL manner. People often misinterpret my posts and intentions and so I would hope the same can be said of your comment to Mary about dumbing down things. Disagree with an issue but don't insult the poster especially if you don't like forums full of personal attacks. DJ1, Thank you for contributing to this thread on how to get rid of homeowner associations. You are correct that it is a good practice to respect those who contribute to this dialogue. For example, I strive to use proper punctuation, break big paragraphs into smaller ones, focus my comments on the post to which I'm replying, and assume that others’ motives are to move the conversation along. For example, you can prepare your post in a word processor with a spellchecker, then copy and paste it into this forum. If you review the posts in this thread, you will notice that some people strayed from the topic. This is okay, but I would encourage people to start new threads on such new topics; that gives us all a chance to specialty address the new issue. I apologize if my “dumb down” remark was taken as an insult. I use that phrase to mean I'm attempting to choose words with the clearest meanings. This reminds me of a recent Dilbert cartoon in which Dilbert asks, “Am I communicating well?” and the other character says “Six O’clock.”

GlenL
(Ohio)

Posts:1223

06/30/2008 11:47 PM
Billie after reading your posts what you're basically saying is this: if all the people get together, say like 100% of the homeowners in a given HOA they can remove themselves from the Covenants; exactly what every other poster has said. But it's not that simple, each set of documents being a binding legal contract spells out what is required to dissolve the HOA or are you implying that you can get out of any contract you don't happen to like by simply filing a paper saying you don't want to play anymore? In addition there may be stipulations in mortgages that the HOA cannot be dissolved while the mortgage is in effect so you may also need the mortgager's permission to dissolve as well. While you could theoretically abandon the commonly owned property depending on the EXACT wording of the documents and the zoning agreements for the development the legal entity that got stuck with it could very well go to court and ask that a receiver be appointed to administer the property. If this happens because the HOA was not properly dissolved and the common areas properly transferred the homeowners could still find themselves on the hook for the cost of upkeep PLUS the receiver's salary. If it were as simple as you purport it to be, then it would be happening all over and CAI would be fighting it. The stories reporting it would be on the news feed and surely posted on the welcome page here. And if not here because let's face it the webmaster and site owner knows their posters; then it would surely be banner news on all the anti-HOA websites. P.S. You asked Michele to cite her sources. I'm going to ask you the same thing if I've unfairly assumed you're just saying the same thing everyone else is and you truly have some groundbreaking method to opt out of a legally binding contract that you show where and cite your proof. We may all be wrong after all we're just lay people and what you say may be possible but I once passed through Missouri so SHOW ME.

MaryA1
(Arizona)

Posts:1562

07/01/2008 2:33 AM
Posted By BillieE on 06/30/2008 5:43 PM ] I will try to dumb this down as much as I can. Many laws and court rulings apply to property within a homeowners association. It is not contradictory to quote cases on property law and corporation law. You are certain (“totally false”) that courts favor restrictions on Americans’ rights to use their real property. That statement doesn't even stand up to logic, let alone the numerous court rulings. Think about what you're saying – that courts want to uphold all restrictions on the use of private property. That is nonsense. If you review as few as five court cases involving covenants, you will find at least one in which the court states that it does not favor limits on the use of one’s property and will subject any such restrictions to strict construction. In other words, an association must have strong evidence that a covenant is constitutional, is permitted by state and local law, is reasonably related to preventing a condition that is itself reasonable, and was properly adopted. Once the court finds that a restriction (CC&R) meets this strict test, it will uphold the covenant. You cite several examples of courts upholding restrictions. Did you think I said courts do not uphold covenants? That would be illogical. Think about it MaryA1, if courts didn’t uphold covenants, there would be no covenants. By the way, I sure would like to obtain the citation for the case you cited in which private property covenants were applied to government property (“parking restrictions on public roadways have been upheld because they are stated in the CCRs”). This is obviously an urban myth. Further by the way, “the FCC will not rule against restrictions prohibiting ham radio towers in deference to the CCRs” because federal law prohibits the FCC from doing so. Billie, OK, here's one parking case: 1996.MO..23586, Maryland Estates HOA, Plaintiffs v Karen Puckett & Chris S. Schallert, Defendants. The Mo. Court of Appeals upheld the lower court's ruling that the HOA had the right to restrict parking of defendant's 1-ton p/u truck on defendant's driveway and also on the street. The street's are publically owned. This is only one -- there are others. Regarding the FCC ruling, I suggest you take a look at FCC 99-2569. You can view it at: http://wireless.fcc.gov/services/index.htm?job=prb.1&id=amateur&page=2 Pay special attention to #3 which says: ". . .the Commission did not extend the limited preemption to covenants, conditions and restrictions (CC&Rs) indeeds and in condominium by-laws because they are contractual agreements between private parties." Where did you get the idea Fed law prohibits the FCC from doing this? Billie, I think you like to put your own spin on things. Hope you will agree now that you are wrong on these 2 issues and put this to rest.

MaryA1
(Arizona)

Posts:1562

07/01/2008 4:07 AM
Billie, I had good intentions of answering your message that began: "Where to begin", but have decided not to bother. Your arrogant remarks are a total turnoff: 1) "It never ceases to amaze me how so many people. . .are so misinformed" 2) "Try to think this through" 3) "If you've been able to follow this reasoning so far" 4) "Can you see this now?" 5) "I will try to dumb this down as much as I can" and the straw that broke the camel's back 6) "I don’t have time to ‘cast pearls to swine.’ If you don’t get it; you don’t get it." In closing you had the nerve to say: "I was hoping that this forum would have thoughtful participants who would take the time to follow one another’s reasoning and respond to the issues. However, it appears, based on your reaction, this appears to be another forum where people argue with blinders on, misquote others, and make personal attacks (“your thinking is a little off kilter”)." My remark was not a personal attack. Didn't you read "and I don't say this disrespectfully"? I wouldn't have bothered to include the last remark if I meant to personally attack you. I notice you didn't bother to preface any of your haughty remarks. At any rate, you seem to have a real stumbling block in understanding the concept of a mandatory HOA. In addition, two others, besides myself, have stated the courts have upheld the HOAs right to restrict parking on public streets but you still do not believe it, and you say it's against Fed law for the FCC to exclude CCRs from the preemption of amateur radio antennas (I have a copy of the ruling!); therefore I feel it would be a wasted effort to try to explain any of this to you any further. Good bye, Billie. Can't say it's been nice knowin' ya. "It is the eye of ignorance that assigns a fixed and unchangeable color to every object; beware of this stumbling block." Paul Gauguin

BradP
(Kansas)

Posts:1742

07/01/2008 6:11 AM
Billie: Do you have any case law to support your claims?

EllenS1
(Florida)

Posts:321

07/02/2008 8:56 AM
Unless we want this site to go downhill I'd suggest Billie's posts be ignored. Donnas has been extremely helpful in her advice on this board. Billie's comment on the misspelling of "repect" which was claearly a typo and many of his comments just indicate he appreciates arguments more than solving problems.

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