Shelley v. Kraemer is directly addressed in the courts findings…
Safiel
325
The time to do that is during the purchase process.
The covenants on the land I was seeking to buy were added when the land was subdivided from a much larger plat in the 1920’s. They had to do with the placement of the house on the property and the size of the house as well as a limitation on livestock, all three of which would have impeded my intended use of the property, which eventually will be our winter time retirement home.
After discovering the covenants, I negotiated a clause in the contract with the seller, which would automatically void the contract, should I be unable to get the covenants cleared.
I went to State court as the law directs and filed my objections to the covenants and request that they be cleared. As the law directs, I served notice upon all neighbors in a certain radius of the property so they could respond in court as the law permits. None appeared in court, though a couple filed written responses stating they had no objections to my request. The court granted my petition and cleared all covenants from the property, after which the sale went through.
The point here, is that I did this BEFORE I closed on the land. If I had bought the land and then filed, I would have been in a much weaker position and I would be potentially stuck with land that I could not use as I wish, if I had lost in court.
But, obviously, no court is going to void an HoA covenant.
The correct way to approach covenants but Samson_Corwell, zantax and few others will continue to wail away here about how their “freedom” is being assaulted while ignoring the rights of those who purchase in areas with HOA’s with the expectation that the CC&R’s will be enforced for their benefit.
zantax
327
Best practice sure, only way, nope.
Yakshi
328
We are having the same conversation.
zantax
329
Just one example of restrictions on HOA’s, no matter what their bylaws say.
from Homeowner Legal Options Against HOA | The Bainbridge Law Firm, L.L.C. | Scottsdale Arizona
Restrictions on HOA Power
Arizona law places certain restrictions on HOAs, regardless of the powers given to the HOA in the community documents. Below is a list of some common restrictions on HOA power. If the following principles are not followed, an HOA decision could be invalidated.
Board members must act as fiduciaries to the association, meaning all board members must put the interests of the community ahead of their own personal interests when acting on behalf of the HOA.
If any HOA action could financially benefit a board member or that board member's immediate family, the board member must state this conflict at an open meeting before voting on the issue.
HOAs must act reasonably and treat members fairly. An HOA may not carry out its duties in a manner that is arbitrary, capricious, or unreasonable. In other words, community rules must be reasonably enforced.
HOAs may not selectively enforce community rules against particular homeowners. HOA rules must be enforced as equally as possible.
zantax
330
I’d be interested in your thoughts on it.
It’s amusing that you find fiduciary responsibility some kind of insightful restriction on an HOA. HOA’s also have a duty to enforce and failure to do so, opens the HOA and individual board members to liability.
Yakshi
332
Well, we’ve lived and worked abroad, and our financial situation, while good, probably doesn’t enable us to retire outright at our age.
With that preface, we were figuring a relaxation and enjoyment year followed by a “work” year, in which the demands of the jobs would not be pressing (so we can still travel during vacations, weekends, and summers.)
NYC, Tokyo, Australia (all over), Buenos Aires, Costa Rica, and Moscow/St. Pete are some of our top picks for fun destinations.
The work destinations would be focused on the Middle East, which is a good hub for trips to Europe and Asia. We miss our friends there, as well as the food and good salaries.
My wife can’t sit for long without wanting to see a new place. I prefer extended stays in foreign places. It’s a good compromise.
Some guy in our old neighborhood actually put up a chicken wire fence on the back of his property that backed up to a well traveled road. The idiot then had to take it down and build an approved fence.
Another (new) family built a really tall fence and then knocked on my door with a petition for me (and other neighbors) to sign to change the rules for them right after they moved in and added the fence (which means they had obviously just signed the HOA agreement). She was really nice about it and so was I but I told her I just didn’t agree with the fence because it didn’t look right in our neighborhood. Some guy was back out there within a week or two with a saw and fixed it. Kind of pissed me off that they just did it and then sent her around to sweet talk us to let them be the exception. I never saw them at the pool or around the neighborhood. I guess they were really private.
Great example of talking past me. I don’t think those rights are legitimate.
Unfortunately for you, the courts have decades and decades of recognizing those rights… Good luck…
LouC
336
Larry’s Flag in the FLOWER POT was in a “common” area.
You do realize one of the BENEFITS of an HoA, like Larry sought out and signed on the dotted line to be governed by, is that, “common” areas are the responsibility of the HoA to maintain neatly and safely. Larry the idiot kept violating the rules regarding the “common” area.
It was not his property.
Never said your Flag impacted anyone or anything.
Larry needed to get a clue.
Sadly he didn’t.
He lost.
Good luck with your Flag in a FLOWER POT.
“Howdy Marion, how 'bout you and me and Hoss shake hands and agree to not build ______ on our ranches. That would kill our cattle bizness.”
“Damn Butch, that’s a hell of a idea. You ain’t gonna sell the Branch Creek Ranch is ya?”
“■■■■ no. Let’s git a mouthpiece t’ create some papers though. Hoss be a rattlesnake come every spring.”
LouC
338
Watched a FOX & FRIENDS segment on this story with Larry being interviewed by one of the rubber stamp Fox News blondes.
Amazing the obvious slant put into that biased piece of “reporting”.
Sure was funny though when he was telling her his Flag in the FLOWER POT was deemed a disallowed object.
He of course failed to tell her that the FLOWER POT was in a “common” area and subject to HoA regulations that differ from what is considered “his” property.
She of course didn’t bother to ask.
She did bother to mention that they had supposedly reached out to the HOA twice for a comment but she said they did not respond. Of course you idiot. They will not comment when there is pending litigation. Duh!
Larry of course failed to point out that American Flags were not banned on his property or on his neighbor’s property and that he could freely display a maximum 4.5 foot by 6 foot one proudly and loudly from the frame of “his” garage door, in a proper flagpole brake and pole assembly. He failed to mention that his garage was not “common” property.
What was hilarious in the Fox & Friends piece was that they kept Larry and the blondes chatter going while they ran video footage of the exterior of his condo with the Flag in the FLOWER POT and in it one could also see his neighbor’s big AMERICAN FLAG flying from the frame of their garage door, an uncontested Flag.
Sort of blew up the whole notion, tacitly being promoted by Larry, that it was American Flags that were being banned by the HOA.
Something tells me Larry is not going to have any great success with his July, 8, 2019 court date against the HOA.
Yakshi
339
No, he’s probably going to get crushed. I hope the attention was worth it.
Safiel
340
BTW, this looks like a good starting point for what I am considering. This is an actual house for sale just west of I-77 from Mount Airy, about 10 miles from my property. I am building from scratch, but there are some good inspirations in this area.
The house is completely wrapped by the porch. It has a large open Great Room with the kitchen integrated nicely into the Great Room. A nice big fully detached garage, with what is likely a substantial sized workshop at the other end of the garage. A full basement level so essentially three stories.
Not completely what I have in mind, but a lot of inspiration to be sure.
Lots of time to hammer it out, doubt we will start construction before 2020.
Ironically, it brings up one factor why I could never live in an HoA. You must say goodbye to creativity to do so.
zantax
341
You showed him, he should lose his house, over a flag in a flower pot, because that is intolerable for any neighbor to have to live with. Can you hear my sarcasm?
LouC
342
He didn’t lose his house because of that Flag in the FLOWER POT.
I didn’t show Larry anything. I doubt anyone could. He obviously is uneducable when it comes to his idiotic decision to NEEDLESSLY and repeatedly defy the HoA rules HE sought out and had signed on to live under.
I very much doubt Larry’s Flag in the FLOWER POT in the COMMON area was intolerable to any of Larry’s neighbors.
However, what no doubt would have been intolerable to his neighbors would have been for the HoA to have allowed Larry to just up and with impunity violate the RULES they are all complying with, and which Larry, by his signature too agreed to comply with.
Larry lost his house for not complying with the HoA rules he SOUGHT OUT AND STATED HE WOULD ABIDE BY.
Further, in the Fox and Friends interview, Larry lamented that he wasn’t aware that his HoA “dues” he had set up as an automatic debit from his bank were being applied to the “unpaid fines” he was accumulating. That he “didn’t know” that would happen and was taking place is his own fault. That was also covered IN THE HOA RULES ABD REGULATIONS COVENANT he signed before moving in, along with the rules about “common areas” that he wilfully violated with his little Flag in the FLOWER POT.
His not complying with the rules ge sought out, then the fines he didn’t pay, and the dues that fell into arrears all led to the lien against his home.
He lost an estimated $200,000 on the sale of his condo. He had-has well over $10,000 in attorney fees.
Why?
Because the man is a near 80 year old stubborn pig headed fool.
Your sarcasm is duly noted.
His stupidity is equally duly noted.
LouC
343
Ah well. Maybe Fat Donald can get wind of this and call in a drone strike on The Tides of Sweetwater HoA members the next time they meet.
