Legality of Home Owners Association Request
Hi,
My house in Irvine, CA was built in 1996. The windows have never been replaced. They are the original windows that were built in with the house by the builders.
Recently, my HOA asked me to fix a mullion in one of the windows for aesthetic reason (or so they claimed). The mullion has been in the exact position (45 degree slanted instead of horizontal) since 1996. I tried to explain that the window (and its mullion) was originally installed by the builder when they built the community in 1996, but they wouldn’t listen. The mullion has been in the same position for all these years and all of the sudden it became an eyesore to some HOA board members (?).
Does anyone know if it is legal for the HOA to make me change what was originally installed by the builders?
Thanks in advance.
Van-
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Replies
The short -
The can ask you to do many things, but are usually bound by a set of covenants that detail aesthetics, and bylaws that detail governance. I'd urge you to check the covenants for your answer.
The not so short
That mullion doesn't look like it was installed in that orientation on purpose. It looks broken, as if it has fallen out of place. Even if it was that way from the factory, which I doubt, It doesn't look 'normal' or blend in well to the neighborhood. All they're really trying to do is make the place look like it's not falling apart to those who are looking to purchase in the neighborhood. I get it, it's not cool having someone or some group be able to make decisions about your property, but such is life. If you ignore it, you'll probably keep getting bugged about it. They probably have authority to place a lien on the property if it were to go that far.
It's already 25 years old. Think of it as an upgrade and a chance to inspect for damage. I'd fix it personally.
Thanks Kyle. The mullion isn't broken. I have another window that has 2 mullions like that but they are even (makes a V shape when the window is closed). I saw 3 other houses (out of 50 houses in the neighborhood) that have similar V-shape mullions on their windows as well. I don't know why they were installed that way (slanted instead of horizontal). And I agree that fighting HOA would be a difficult thing to do.
Read the agreement you signed when you bought your unit.
General the exterior of the building is nor your responsibility and they would be very upset if you replaced the entire window with something new because it would never match the rest of the complex.
If the broken mullion is in between the two layers of glass replacement will be the only option.
In general fighting with your HOA is a loosing battel in that you must pay your lawyer by the hour and then get to pay a share of the HOAs legal bills. Are you are not suing yourself exactly but sort of?
Walta
Thanks Walter. I will look for the agreement to see if it has additional info.
Wow, that's unsurprising and unfortunate. Walta is correct in reference to "suing yourself . . . sort of". The Community Associations Institute (CAI) is a good resource.
I advise all I know to avoid HOAs if possible. I headed an association of 10 units and, yes, many lawyers/lawsuits, including several against big NA banks to force them to foreclose on delinquent/absent owners.
If you do not fix the issue, the HOA may start to fine you. If you don't pay the fines, the HOA may perfect a lien against your unit/home and take next steps, which can include foreclosure to collect on the lien. No joke: https://www.rmpbs.org/blogs/news/colorado-hoa-foreclosure-investigation/
Most people in HOAs have little understanding as to what they've actually signed onto. Developers are often into done and run or they hang onto some units to maintain control to milk owners for association fees. I've seen an HOA with homes built on cliffs (unstable formations assessed by USGS geologists) where a professional engineer had to issue an emergency evacuation order for fear of loss of life. Better stop, HOA PTSD.
I agree that fighting HOA is not easy. Thanks for your reply and advice.
Since you mention this is a house, presumably that you own (not a leased home), and not a condo, this is likely your responsibility to repair. If it was a condo, the HOA would typically be responsible for the 'shell', the exterior of the structure, which you could argue includes exterior windows. If you were leasing the home, this would typically be the landlord's responsibility to repair, although some leases are net maintenance, which would mean you'd be responsible to maintain things that broke while you were living there (I don't think this is very common in residential leases, but it's very common in 'triple net' commercial leases, where the "three nets" are utilities, taxes, and maintenance).
My dad is an attorney, and likes to say "the problem with fighting city hall is that they fight back using your money". Fighting with your HOA is similar. The HOA will be governed by an aggrement that goes with the deed to your home, so you already agreed to it when you purchased your home -- even though you might not have realized what you were agreeing to. I personally won't live in a development with an HOA, and luckily in the more rural areas that I like, HOAs aren't very common. Since you have an HOA for your development, your options are probably either to fix the issue and call it a day (certainly easiest, and probably also the cheapest), hire a lawyer to fight the HOA for you (which is billed hourly, and can be $, $$ and more $$$), or move to somewhere without an HOA. The only exception I can see is if you bought your home with a home warranty, which you could try to make a claim against if it's still in effect.
Bill
Good advice from Bill. I worked with my father on custom homes before age 10 and then became an engineer. Later, I became an attorney. I managed/financed major infrastructure projects for my HOA in partnership with the city, which I helped lobby for green/sustainable procurement and sponsor a Bill McDonough project. The city was a great partner, as it should/can be. Our HOA was able to significantly reduce energy and water usage.
HOAs need leadership. Some fail to hire a professional engineer, develop a long-term maintenance plan and then actually fund and implement it. I'm acquainted with the attorney for the tragic collapsed complex in Florida, she's one of the best. Decisions, however, are ultimately up to the HOA board/members.
The OP's situation is a sign. Does the HOA have everything under control and excess time or is its focus misplaced?
PBP1,
"The OP's situation is a sign. Does the HOA have everything under control and excess time or is its focus misplaced?"
That's a very useful way to look at situations like this.
Thanks Bill. I own this single resident home, so the cost for fixing it would be from my pocket. If I bought another house in the future, it'd be without an HOA :-)
The builder installed a defective window and it was apparently missed by the original homeowner when they did the walk through.
This is the good/bad part of living in a HOA. Your gain is that people have to maintain their property in such a way that it won't deter potential buyers. I'm indifferent. I like them because I don't want some neighbor with 4 roommates and their cars taking up all the parking. I like them because people can't leave broken down cars in the street or let their landscaping go to shit because they're too goddamn lazy to maintain it. I like them because roofs get replaced and exteriors get painted.
If you're interested in getting down to the nitty gritty you can look at the CC&R's (Covenants, Conditions & Restrictions) recorded at your local deed office and probably accessible on your HOA's website.. I'm 99.9 percent sure it doesn't matter how the builder installed something. If it's wrong it's wrong. It's a cosmetic issue for sure and perhaps a cheap repair rather than replacement.
In fact here's my own story. I live in a townhome with 23 windows. Original owner. Only 2-3 windows were installed correctly by the builder. I'm responsible for the windows and doors per my CC&R's whereas the HOA is responsible for the rest of the exterior.
Why leave those restrictions to a HOA? Around here our zoning deals with them, and infractions are dealt with by bylaw officers. The zoning doesn't cover stuff like how often you paint your house, but the important stuff like nuisance cars, too many occupants etc. is. By addressing it that way you reduce the conflict between neighbours and civil lawsuits.
Zoning doesn't always address these things and people get all upset when there's an attempt to change that with equally bad law.
Exhibit A : https://driving.ca/auto-news/news/county-in-california-makes-it-almost-illegal-to-repair-your-car-at-home
Thanks JC72 for your reply. What baffles me is how could they (the HOA) "missed" this all these 26 years? I'm the 3rd owner and I've been living in this house for almost 8 years now. Why now that they start noticing the window and no one has before? I feel that someone on the current Board of Directors is just plain nitpicking (are they on a power trip?). I know there has been a constant change of the members in my HOA Board of Directors ever since I moved into this house in 2014. Maybe I should become one of the board members. I am asking them for a copy of the CC&R's.
If you're the third owner how do you know it was like that way from the beginning?
As for letting it go so long? Well I would imagine that nobody on the board bothered to look until something occurred which made them decide to make a visual assessment of all the units within the neighborhood.
Being on the board is a thankless job and opens yourself up to potential liability. Just think about the HOA board for the condo tower in Florida which collapsed because the owners didn't want to pay to maintain the building.
Hi John,
Redfin.com still has the pictures of the house when the 2nd owner posted it for sale. There's a picture of that same window taken from inside the house, showing the mullion in the exact same position. I remember several conversations with the previous owners during escrow that they did not make any changes to the house, even down to window blinds/curtains. They only purchased furniture. I presume that the windows have always been the originals. For that particular window, there's a picture on Redfin to show that it has been the same at least since 2014. I also have another window with 2 slanted mullions, but they are on both sides of the window (the stationary side and the sliding side), and make an upside-down V shape when the window is closed. I can also confirm that similar slanted mullions are present in other houses in the neighborhood (at least 3 other houses out of approx. 50 homes). The only different is this window of mine is in front of the house, faces the street, while neighbors' are on the sides of their houses (but still very visible to a passerby if paying enough attention)..
" like them because I don't want some neighbor with 4 roommates and their cars taking up all the parking. I like them because people can't leave broken down cars in the street or let their landscaping go to shit because they're too goddamn lazy to maintain it."
I have ~700 feet of heavily wooded land and a marsh between my house and my nearest neighbor, so I can't see, or hardly even hear, if they have roommates and a bunch of cars :-) If I was in a denser area, I'd probably be more inclined to see the benefits of an HOA, but I found I liked being out in nature more than I liked being squeezed in among neighbors. The tradeoff is more driving to project sites, but nothing comes for free...
Note that some CC&Rs have been struck down by the courts, so there are instances where there might be something in your agreement that isn't enforceable. Fixing a broken window probably isn't one of those, but there may be others so it's worth checking if anything really major comes up.
Bill
Ya density is obviously the biggest issue. Homes in HOA's are typically attached (Condo/Townhome) or at least much closer together. I grew up rural and semi-rural where in some cases the nearest neighbor was 1/4 mile away.
In any case it's obviously up to the homeowner to perform their due diligence. My mother got caught in a bad situation on a house she bought less than 2 yrs ago. A month prior to purchasing the HOA had a meeting and opted to no longer carry exterior insurance for the site condos*. The owners of the site condos have now ended up subsidizing the attached condos as their HOA dues did not decrease. If we had known about the vote we would've tried to convince her to pass on the house.
I'd like to read more about CC&R's getting struck down. I could see that occurring with amendments, but not the original terms.
*Site condos were built in the early 1990's and the surrounding trees have grown too large. The HOA didn't want to pay for the extensive tree trimming so they absolved themselves of the responsibility for insuring the structures.
"I'd like to read more about CC&R's getting struck down. I could see that occurring with amendments, but not the original terms."
The ones I know of have been related to federal and telecom issues. I can't name any specifics without a bunch of research, but the ones I've read about were usually related to the use of outdoor antennas. Satellite dishes of less than 1 meter diameter are exempted from HOA regulation, for example, and there are some limited exemptions for amateur radio antennas too. A specific case involving amateur radio antennas I'm aware of involved a CC&R prohibiition against any "transmitting antennas" on the property. The amateur radio operator succesfully argued that that would ban any cell phones, baby monitors, etc., since they all transmit too, and that operator was able to prevail agains the HOA in that case. There may well be other issues too. Courts have also ruled that CC&R and other deed-related restrictions on things like ethnicity are unenforceable.
Your insurance issue is interesting. You may have been able to use that as a way to back out of the deal though. This is the kind of stuff that keeps lawyers busy.
Bill
If you search around, you might find some of the 1st amendment type of cases too (e.g., mezuzah cases, etc.).
Not carrying insurance for some units seems odd - but HOAs do odd things. A financial decision with potential undesirable repercussions rather than a community-minded decision?
When a member of an HOA sues, sometimes they go after "neighbors" as well as the HOA. While the HOA usually has insurance (with a deductible) such that the insurance company's attorney/firm of choice steps in, individual members pay their own way. I know someone that has paid nearly six figures in legal fees defending themselves against a neighbor (main claims against HOA) where total legal fees will likely top $100,000. That ongoing suit can be an obstacle for all HOA members when it comes to selling/re-financing. Post-2009, lenders are being a bit more diligent as to HOA status.
Ya the affected units are site condos. Basically detached single family homes within a condo association. This arrangement isn't very common.
Thank you everyone for your very interesting, informative insights. Fixing the window isn't a big issue for me financially, but the reason has to be right (legally, compliant, etc.). I'm challenging them to show me more document/proofs that my window is in violation. If I didn't do that, what would they make me do next? Turning my roof sideway because it doesn't look aesthetic enough to someone? (I know I'm exaggerating here but I hope you get my point).
Consider asking if moving the offending window to a less prominent location would satisfy the HOA. Most likely you have mutable windows of the same size and movable parts can likely be swapped around fairly easily.
Try asking if they have a list of approved vendors that have replace windows in the past.
If they are requiring replacement windows, I would want assurances that every other defective window in the complex will be dealt with in the same way and provide them with photos of the others.
My guess is the mullions were all in place when installed and over time the glue that holds them in place is failing. I would not be surprised if most fail in time.
Do you know the manufacture of the windows? Wild guess is the manufacture is long gone and replacing the sash or glass and mullions is a long shot.
That leave you with replacement windows that are very unlikely to match the rest of the complex. If you select brand A replacement windows the neighbor on the left may pick brand B and the one on the right may pick brand C and they will all look different.
My point is it is easy for them to say fit it the question becomes can it be repaired in a way that will meet with their approval? I am guessing no.
Walta
Very good ideas Walta. Thank you!