HOA selectively maintaining "common spaces"

[little big man]

Jurisdiction

Montana

In our subdivision, our greenspaces are two lots defined in the city plat which are owned by our HOA, and our covenants define these lots as "common areas" and homeowners are responsible for irrigating and maintaining any "common areas" that abut their property. However, for as long we have owned our home, the HOA has budgeted some of the association member dues to hire a landscaping crew that mows and maintains sprinklers on most of these two lots, except for a portion that is adjacent to our home's lot. It is a shallow drainage gully and it's been left alone to grow naturally each year while the rest of that lot is mowed by the contracted crew.

This summer, the HOA chairperson emailed me saying that this unmaintained gully portion of the common area lot needs to be watered/mowed by me and one other homeowner that borders it, or they will pay the crew extra monies to do the work and then charge us individually for it. I've asked them to consider absorbing this gully area into the collective maintenance that we as an association pay for. Since our HOA is choosing to maintain the other common areas that homeowners would (under the language of the covenants) normally have to take care of, would this new HOA demand be considered selective enforcement of the covenants? Would I have any sort of legal basis for my request to the board that we receive the same benefit as other homeowners who do not have to maintain common areas next to their lots? It would be helpful to have some knowledge on those questions in case I bring it up as a motion at the next voters meeting.

 

[adjusterjack]

Since our HOA is choosing to maintain the other common areas that homeowners would (under the language of the covenants) normally have to take care of, would this new HOA demand be considered selective enforcement of the covenants?

Sure. But, so what? This is the kind of stuff you get when you live in an HOA.

Would I have any sort of legal basis for my request to the board that we receive the same benefit as other homeowners who do not have to maintain common areas next to their lots?

Maybe, maybe not. Reality check. Do you want to spend thousands on a lawyer to litigate the issue?

It would be helpful to have some knowledge on those questions in case I bring it up as a motion at the next voters meeting.

The only knowledge you need for the next voters meeting is how to vote out the people that made the decision and vote in people who will make different decisions.

In other words you are likely tilting at windmills if you think you are going to get favorable results, especially since it's only two of you that are affected out of the entire HOA.

 

[Zigner]

Maybe, maybe not. Reality check. Do you want to spend thousands on a lawyer to litigate the issue?

Further to this, not only would the OP be paying for his own attorney, but also for the attorney representing the HOA (through his dues).

 

[little big man]

Sure. But, so what? This is the kind of stuff you get when you live in an HOA.



Maybe, maybe not. Reality check. Do you want to spend thousands on a lawyer to litigate the issue?



The only knowledge you need for the next voters meeting is how to vote out the people that made the decision and vote in people who will make different decisions.

In other words you are likely tilting at windmills if you think you are going to get favorable results, especially since it's only two of you that are affected out of the entire HOA.

I would surmise that litigation wouldn't be a likely outcome, which is why my curiosity is on the strength of a legal position rather than an economic analysis of going to court.

If there was a reasonable legal opinion that my position was favorable, a letter from an attorney stating that much might influence a vote on the matter at the next annual meeting when we discuss and vote on a budget and other motions brought by members. If the association members decide that paying a little extra money to mow the area and settle the matter in perpetuity is better than the possibility of costly litigation, my cash outlay could be quite small. If my position is not that strong, so be it and I break out the weedeater. The key element for me is assessing how the law views my perspective on the matter.

 

[adjusterjack]

How the law views your perspective is addressed in your CC&Rs and bylaws. When you bought into the HOA you bound yourself to them and allowed the board to make decisions for the benefit of the HOA, not for the benefit of any one owner.

I wouldn't waste any money on a lawyer's letter. You are free to bring up the issue at the next meeting and see how it goes. I don't see you having any leverage.

 

[little big man]

Further to this, not only would the OP be paying for his own attorney, but also for the attorney representing the HOA (through his dues).

Good point, although if I could use a strong legal position (if I have one) just to influence an association member vote, that would by far be my goal as opposed to litigation.

 

[zddoodah]

Since our HOA is choosing to maintain the other common areas that homeowners would (under the language of the covenants) normally have to take care of, would this new HOA demand be considered selective enforcement of the covenants?

Sure. That's an apt label. But applying that label is of no legal significance.

Would I have any sort of legal basis for my request to the board that we receive the same benefit as other homeowners who do not have to maintain common areas next to their lots?

You don't need a "legal basis" to make a request to an HOA board.

As a non-legal matter, and without having any details about the various common area green spaces, it's certainly not unreasonable to request that the HOA take care of the space abutting your property. However, unless this selective enforcement is being done for reasons such as race, ethnicity, gender, etc., you'll likely have an impossible time compelling the HOA to do what you want. If that's the case, then your recourse will be to convince the HOA board to do what you want and, if that doesn't work, to vote those folks out and get yourself and/or others sympathetic to your position elected in their place.

 

[little big man]

Sure. That's an apt label. But applying that label is of no legal significance.



You don't need a "legal basis" to make a request to an HOA board.

As a non-legal matter, and without having any details about the various common area green spaces, it's certainly not unreasonable to request that the HOA take care of the space abutting your property. However, unless this selective enforcement is being done for reasons such as race, ethnicity, gender, etc., you'll likely have an impossible time compelling the HOA to do what you want. If that's the case, then your recourse will be to convince the HOA board to do what you want and, if that doesn't work, to vote those folks out and get yourself and/or others sympathetic to your position elected in their place.

Gotcha. So as a rule, if an HOA board were to, let's say, fine one homeowner for a violation and then not fine another homeowner for the exact same violation, as long as it was just an arbitrary choice on the board's thinking, there's no state or federal law that addresses that, do I have that right?

 

[adjusterjack]

Now you are comparing apples to elephants.

Let's start over. Probably should have done this in the first place.

You wrote:

our covenants define these lots as "common areas" and homeowners are responsible for irrigating and maintaining any "common areas" that abut their property.

Take out your covenants and quote that entire provision word for word.

Then we'll talk.

 

[zddoodah]

Gotcha. So as a rule, if an HOA board were to, let's say, fine one homeowner for a violation and then not fine another homeowner for the exact same violation, as long as it was just an arbitrary choice on the board's thinking, there's no state or federal law that addresses that, do I have that right?

Yes, unless your state's laws governing HOA's (which I'm not familiar with and it's unlikely anyone else here is) have something to say on the issue.

 

[army judge]

Over my lifetime I've come to observe a few things.

My observations about HOAs lead me to conclude they are akin to FIEFDOMS.

That status allows an HOA to do ALMOST anything to their "serfs", who pay for the financial and mental abuse.

 

[little big man]

Yes, unless your state's laws governing HOA's (which I'm not familiar with and it's unlikely anyone else here is) have something to say on the issue.

Understood - thank you!