You should think twice before you take on your Homeowner’s Association (HOA). When your HOA management has fined you for something, and you think the fine is unfair, your first impulse might be to ignore the fine and stop paying your dues. Something unfair might be fining you for parking a car on your driveway when there’s room for it in your garage, or fining you for making alterations without prior HOA approval.
These are typical cc&r rules and many Homeowner’s Associations have alot of these types of conditions and restrictions. You may be sure other homeowners in your HOA have done exactly what you did, but they haven’t been fined. This is a “selective enforcement” issue. A good example of selective enforcement in another context is a speeding ticket. You’ve probably been given one on the freeway. You’re going 70 mph and everyone else is going 75 mph, but you’re the one who gets stopped. You can’t beat the ticket with that argument. Neither can you beat an HOA fine. An HOA is treated like a governmental entity by the courts. You can’t get away with something just because someone else is getting away with it.
If you don’t pay your fines or dues, eventually they will add up to serious money. When that happens, the HOA management company or the HOA’s lawyer will tell the HOA board members that they have a fiduciary duty to collect it. After giving you the legally required notice, the HOA management will record a lien claim against your house or condo. If you still don’t pay, the HOA’s lawyer will foreclose the lien by a public sale of your house or condo to the highest bidder. The proceeds go first to the HOA in the amount you owe. Because virtually all recorded covenants, conditions and restrictions (CC&R) contain attorney fee provisions, the amount will include the attorney’s fees paid by the HOA to chase you. Whatever is left over goes to you, but you’ve lost your home. Furthermore, the attorney’s fees you wind up paying (yours and the HOA’s) might turn out to be staggeringly larger than the amount you refused to pay in the first place. This happens.
If you have a CC&R case pending, please contact me and I will be happy to assist you.
Stanley D. Prowse is a Real Estate Attorney practicing in the greater San Diego area.