Robert Frost's poem "Mending Wall" shows the contradiction and conflict from erecting walls or barriers between neighbors.
The narrator of the poem feels that the wall is somehow unnecessary, twice repeating, "Something there is that doesn't love a wall."
Yet, his neighbor who is working with him at mending the wall twice repeats, "Good fences make good nieghbors." Apparently, they can't even agree about the fence separating their property.
Laws are all about defining the boundaries with our neighbors. Nowhere is that more apparent than in condominium or homeowner associations. For purposes of this column, I'll pull a standard lawyer writing trick: the hereinafter acronym. Rather than type out "condominium or homeowner's association" I will hereinafter refer to them collectively (and thus somewhat incorrectly) by the acronym HOA.If you live within an HOA, you will know that the acronym if pronounced as it is spelled sounds a little bit like you are getting punched.
The underlying concept of the HOA is to provide for common areas and take care of the collective interests of a certain community. The HOA is created like a small government or company, complete with bylaws, rules and recorded declarations of covenants, restrictions and conditions that control the way an owner can use their property within the HOA.
This has proved a popular addition to the law for real estate developers. The guarantee of an enforced uniformity by the HOA, along with the addition of otherwise unaffordable amenities, are used as selling points for new developments. After enough lots are purchased, the community members take over from the developer the enforcement and operations of the HOA. A new little government has been born.
There are many people who cry and wail about the tyranny of big government, but the littlest kingdoms can be even more vicious than the large. The HOA has significant power at its disposal, compliments of Title 57 of the Utah Code.
Liens can be filed against property and foreclosure initiated. Depending on what is contained in the governing documents, the HOA can dictate exterior home decor and rental (or non-rental) rights. It is like having a landlord that is a neighborhood committee.
Law firms have developed specialized practices focusing on the intricacies of the enforcement of HOA laws. The HOA usually collects monthly fees for common-area property maintenance and other fees allowed by the governing documents, which, of course, include paying for the attorney suing other HOA members for collection and non-compliance.
Imagine getting a notice that you have 48 hours to comply with a rule of the HOA and if you don't comply a fine is assessed, say $500. The notice may or may not tell you that you have 14 days to request an informal hearing, probably with the same people who assessed the fine in the first place.
The original HOA governing documents control the entire process. Once the fine is assessed, the HOA can foreclose on the property to collect the fine without ever going into a courtroom. Now, imagine that your neighbor who doesn't like you has that power.
Frost asks in his poem:
"Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offence."
This is great advice to consider when living within the walled compound of an HOA.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or firstname.lastname@example.org.