The Inside Outside Guys: Homeowner Associations

By Ken Calverley and Chuck Breidenstein

DETROIT, December 2, 2021 ~ When America began to settle into the suburban land around cities after WWII, a new series of issues began to arise that no country had previously dealt with.

Our Levittown subdivisions consisted of individually owned parcels and buildings, each dependent on the other for health, safety and value preservation.

Local municipalities and governing agencies took on the responsibility of passing laws to help regulate health and safety. Homes were required to be connected to approved sanitary disposal systems and surface drainage was regulated and controlled. Setback laws were enacted to maintain minimum distances between adjoining structures and streets.

But the value consideration was left to the individual property owners.

The concern was valid since the country had ventured into the concept of densely packed homes purchased with federally insured mortgage money. If my neighbors failed to maintain their homes properly, my home may lose value.

Organizations began to appear to preserve and protect those values, most notably in Southern California and Los Feliz, where owners were originally more concerned about lost values based on who occupied the adjacent home rather than how they maintained it.

Deed restrictions were initially created to limit specific religions and ethnicities and attached to the properties. Over time these restrictions came to deal more with the physical property.

Such restrictions constitute a private covenant between sellers, buyers and co-owners in the developments and passed with the title. If, for instance, a deed restriction or restrictive covenant said that all “solar drying” of clothes and household goods is prohibited, then no clothes lines would be allowed. Such restrictions continue to this day, dealing with issues from fences to livestock to outbuildings and even the color of paint or siding you may use on your home.

A lot of the “livestock” issues came to light during the last housing crisis when people began raising animals for sale and food in their backyards. What smelled like chicken or pig manure to some, smelled like cash to others.

Color palettes for homes in many upscale developments are restricted to specific pastels to make sure everything blends and your deep purple doesn’t devalue my pale pink.

A case came to a Michigan property several years ago when the homeowner chose to get rid of all the grass in their yard and plant wildflowers instead. The neighbors went to court.

Additional issues came to light after passage of the 1977 Clean Water Act, when many new subdivisions were now required to incorporate water detention and retention ponds and systems into the property.

Local jurisdictions, recognizing the potential large costs to maintain such “common elements” (CE) in the subdivisions, put the burden of upkeep on the financial backs of the property owners. They further required dedication of land and resources to walking paths and parks to be owned and maintained by the home owners.

Homeowner associations, (HOAs), now had the added duty of making sure each owner paid the costs of common element maintenance proportionate to their interest in the development.

As a development was completed and sold, the developer would cede control of the maintenance and governance to the property owners. In some states, HOAs had the power to lien property to assure payment. In one case, a soldier serving in Iraq failed to pay an $800 assessment on his paid for $300,000 home. The HOA enforced the lien and sold the home in foreclosure before a subsequent civil case restored ownership to the soldier.

Courts have also indicated that lack of timely enforcement of a deed restriction may negate any future enforcement. So, failure to enforce that “no commercial vehicles” in the driveway mandate or the “no storage buildings in the back yard” restriction may open the proverbial door on everyone violating.

An attorney friend years ago was cited within 24 hours for leaving an RV in his drive after a late-night arrival home to his upscale subdivision. Timely enforcement for sure, but many jurisdictions will not dedicate municipal resources to enforce deed restrictions.

Owners are further cautioned due to their shared ownership of common elements, such as parks and bike paths, where the public may have access, but owners have responsibility. Several years ago, an HOA was sued after several sexual molestations had taken place in such CE locations indicating the owners had an obligation to protect users of such elements.

Such cases and difficulty in enforcing financial participation from owners has made it difficult to insure HOAs and to get policies that indemnify the leadership and protect them.

All this points us once again to the need for professionals. Your home is likely the largest investment you’ll ever make. Do not purchase real estate unless you do so with the aid of people like Jeff Glover, a trusted partner of the Inside Outside Guys. Real estate professionals like Jeff Glover Associates understand the intricacies of issues like those discussed and can help you avoid issues that may devalue the purchase.

For housing advice and more, listen to the Inside Outside Guys every Saturday and Sunday on 760 WJR, from 10 a.m. to noon or contact us at InsideOutsideGuys.com.