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    If you can't follow the rules, don't move into the neighborhood

    By BARBARA L. FREDRICKSEN

    © St. Petersburg Times,
    published June 24, 2001


    To hear some people tell it, homeowner associations are the neighborhood equivalent of the IRS -- unreasonable, arbitrary and, gosh darn it, out of control.

    Take the recent story of the Carrollwood resident who hadn't paid her assessment for 29 straight months. When the homeowner association foreclosed on her house, her neighbor blamed not her dilatory friend but the association itself. She told a reporter: "My feeling is if it's not illegal, it's certainly immoral to do something like this."

    Ouch! That's pretty strong.

    Admittedly, I'm a tad sensitive about this subject, but you must understand why: I've been a board member and treasurer of my homeowner association for the past five years. I've filed liens and been party to foreclosure lawsuits against several homeowners for not paying their assessments. Somehow, though, I've never thought of myself as immoral. In fact, I see myself as a responsible board member doing her duty. The association has employees and bills to pay, and every resident needs to pitch in to help pay them. Since the homeowner knows this up front, and chooses not to pay, why the outrage when someone finally says, "Pay your part"? That doesn't make sense to me.

    I asked a colleague what prompts the anger.

    "Because it's a homeowner association," she said, as though it were obvious. When I looked blank, she went on. "You expect a homeowner association to be something that helps homeowners, that supports them, not something that goes after them because they paint their house the wrong color or get behind a little on their dues."

    It suddenly dawned on me that lots of people -- well-informed people -- have a complete misunderstanding of what a homeowner association is. I had gotten whiffs of this belief from my association's members over the years when they protested my letters asking them to pay up "or else," but it had never been put to me so succinctly before.

    So I'm writing this to defend my honor and try to clear up this woeful misunderstanding.

    First, let's get out of the way what a homeowner association isn't: It isn't an eleemosynary, charitable or philanthropic organization. It isn't there to help those in need. It isn't a club. It isn't a fraternity, a sorority, a brotherhood, a lodge, a federation or even a gang.

    Here's what it is: An organization that exists to enforce the deed restrictions and to maintain the common areas.

    That's it.

    Board members must be very careful about doing anything more than that, unless it is specifically mandated in their covenants, or they could be in violation of state statutes and in a heap of legal trouble. They'd better not make exceptions to the rules, including the rule about paying assessments, or they can be accused of favoritism. They'd better not spend association money on anyone's private property, including a sick member whose house needs to be painted or yard needs to be mowed, or they could be held personally liable and have to pay back the money out of their own pockets.

    It's a fine line to walk, and it's always best to have an attorney well-versed in homeowner association law holding your hand as you walk it.

    In the five years I've been association treasurer, I've tried nice letters and stern letters to those who don't pay, and still, well, they don't pay.

    Some people don't pay until they get a certified letter saying a lien has been placed on their property. Others don't pay until the sheriff arrives on their doorstep with a notice of foreclosure. Others wait until they get a letter from the court saying their house is going to be sold at public auction, and some don't pay until they see someone on the courthouse steps auctioning off their property.

    And a few -- a very few -- don't pay even then. They're like the Carrollwood woman, who "don't believe anything like this was possible or legal."

    The trouble is, most homeowner associations operate on a very thin margin. Our association's assessments, for example, break down to $3.23 a week, or 46 cents a day. For that, members get the use of a swimming pool, tennis courts, shuffleboard courts, a skateboard/handball/basketball court and clubhouse and have acres and acres of land mowed and landscaped, thus enhancing the beauty of their area and increasing the value of their property.

    To accomplish all this, we hire people and contractors to do the work and buy supplies to do it with. There are payroll and payroll taxes, and bills for electricity, water, trash removal, pool chemicals, flowers, shrubs, mops, brooms, furniture, office equipment, supplies and a long list of other things.

    Since the operating margins are so thin, if only a few people don't pay up in full and on time, the employees don't get paid, the lawn doesn't get mowed, and the swimming pool turns pea soup green. Then everyone's property values plunge, and nobody is happy.

    Okay, but why the lawsuits, liens and foreclosures? Couldn't the treasurer just go talk to these folks and get them to pay?

    Have mercy on the treasurer, please. If I call to remind one person to pay, I'm obligated to call all 867 members. If each call takes just 10 minutes, that's more than 144 hours -- 18 8-hour working days, more if there are long distance calls to absentee owners -- of calling each quarter. Individual home visits would double or triple that time. Besides, there would be no paper trail to show I had talked to the homeowner about his overdue assessment in case the matter did eventually get to court.

    Aside from all that time and effort, if I fail to reach one person, that person will claim discrimination. "You called him, but you didn't call me. Now you've put a lien on me, but not on him."

    Most attorneys tell their clients to do everything in writing, through the U.S. mail. That way, there's no room for misunderstandings, claims of favoritism or accusations of harassing behavior.

    Some have suggested placing the lien, but not going forward with a foreclosure if the homeowner doesn't pay. That won't work; you can't pay the bills or meet the payroll with uncollected money. If certified letters, liens and visits from the sheriff don't work (and the dunking stool is out of fashion right now), foreclosure is the only alternative. By the time the thing gets that far, a lot of other homeowners' assessments have gone to pay court costs and attorney's fees. Foreclosure is the only way the association can get back some of that money to pay the bills.

    Shouldn't each case be considered on its own merits? Aren't there some extenuating circumstances? That's when lawyers start warning about "arbitrary and capricious enforcement." If you let one sick or out-of-work homeowner slide, you have to let every sick or out-of-work homeowner slide.

    It gets even hairier when it comes to deed restriction violations.

    Why shouldn't someone be able to paint his house Pepto Bismol pink with Smurf blue trim or park cars and pickups on his lawn during a party? After all, it's his property.

    The short answer is, "Because the deed restrictions say he can't."

    The long answer is, "This particular community was designed and planned to look a certain way, and people bought their homes here expecting the place to continue to look that way for as long as they live here. In order to do that, all homeowners have to follow the rules, and the association has to collect money to enforce the rules and maintain the common areas."

    So what's a home-looker supposed to do? In some places, there are lots of areas that don't have deed restrictions, and people can move there. In urban areas, though, nearly every community has deed restrictions.

    In that case, I'd say look at it this way: Choose a home sort of like you would choose a spouse. Start out with an idea of what you want, look around at the possibilities, then try to hitch up with something that is close to what you can live with for a long time, even for life.

    If you drive through a neighborhood and can't spot a single pickup truck, basketball goal or plastic three-wheel tricycle in a driveway, and you have all three, keep looking. On the other hand, if you abhor pickups, are driven crazy by the ka-thunk, ka-thunk of bouncing basketballs and are annoyed by the patter of little feet, don't make yourself miserable by moving into a neighborhood with an abundance of these things.

    Fortunately, deed restrictions and homeowner fees are different for every neighborhood -- some allow pickups, dog kennels or boat trailers, some don't; some fees are minimal, some run into the hundreds of dollars -- so there is enough room for choice. In addition, the zeal with which deed restrictions are enforced varies, though a change of a few board members can change that from lax to rigid and vice versa overnight.

    If you can't follow the rules, don't take the plunge. If you take the plunge, and then discover you don't want to follow the rules, please don't point the finger at the homeowner association. We're just volunteer board members trying to do our jobs.

    -- Barbara Fredricksen is the arts and entertainment editor for the Pasco edition of the St. Petersburg Times.

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