DEAR BENNY: For 14 years I have lived in a planned unit development (PUD) with strong (or so I thought) CC&Rs and an association that supposedly enforces its legal documents. A year and a half ago I noticed my neighbor who lives on the street below mine had three aspen trees that had grown well above the roof line and were now impacting my view.
The CC&Rs require that prior to doing any landscaping (i.e., planting trees) an owner must share the plans with neighbors who may be impacted by the plans. This never happened. More important, any trees that rise above the roof line and impact a view are in violation of the CC&Rs. Consequently, my neighbor has two violations.
I brought this to the attention of our association board both verbally at a meeting and in writing. After several telephone messages and letters to the manager, we finally made contact. The manager claimed she sent a letter to the offending party. I told her nothing had been done, so she stated they’d send a second letter.
I sent another letter to the board and manager recently requesting again that they inform me of any subsequent action they had taken. Needless to say, I’ve heard nothing.
Are there any state oversight entities that will hear my complaint about my neighbor’s noncompliance and the board and manager’s lack of action to enforce our CC&Rs. I pay my $200 per quarter association fees in a timely manner and am now wondering what I am getting for this money if our management company shirks its responsibility to enforce the CC&Rs. –Karen
DEAR KAREN: For the benefit of my readers, CC&Rs is short for "covenants, conditions and restrictions." In a condominium, the legal documents generally are the declaration and the bylaws. In a homeowners association (HOA) and a PUD, the legal documents are referred to as the CC&Rs.
Boards of directors in community associations often find themselves in a dilemma. A unit owner is in violation of a particular rule or regulation, but the board is not inclined to spend a lot of money and time challenging that owner. While I do not belittle your concerns, in reality this is a relatively minor issue facing many associations. Especially in today’s economy, when many units and houses have been foreclosed upon and owners are not paying their association fees, board members are reluctant to spend money on lawyers to enforce all of the rules. In fact, many boards just do not have the money to do this.
I am not suggesting that rules should not be enforced, but a board of directors does have (or should have) some discretion as to what rules they will vigorously enforce.
However, the board is paying the manager, and that person should be more proactive. You should demand to see copies of the letters the manager claims to have sent. Furthermore, you should personally contact the neighbors and explain the situation to them.
There is, however, a problem if a board does not enforce all of its regulations. One defense that unit owners often raise when challenged in court is that the board is not enforcing its rules uniformly: "Why should I follow the rule when Johnny and Mary down the street are doing the same thing and you are not going after them?"
Accordingly, your board should review the facts carefully and determine if this is a matter worth pursuing.
In many jurisdictions, the courts follow what is known as the "business judgment rule." In other words, the courts take the position that unless a board is acting illegally — or someone is stealing money — the courts will not second-guess a volunteer board of directors, even if the board is wrong and makes mistakes.
In some jurisdictions, however, such as in the District of Columbia where I practice law, the courts have rejected the business judgment rule in favor of a "reasonable test" — i.e., whether the board acted reasonable under all of the circumstances. This puts a higher burden on the board to make sure that its decisions have been carefully considered, and that it has communicated its concerns to the membership.
It’s not an easy question. However, you still have the legal right to file suit against your neighbor for the alleged breach of the CC&Rs. Unfortunately, not too many states have agencies that regulate and mediate disputes in community associations.
DEAR BENNY: My girlfriend and I bought a house in May 2009. Both names are on the title. We amended my 2008 taxes to receive the $8,000 first-time homebuyer credit, which we have already received and spent.
My girlfriend moved out last week and it does not appear she is coming back. I am staying in the house and will continue to make the mortgage payments. I have five questions:
1. Is there anyway to remove her name from the title without refinancing?
2. Is there any kind of abandonment clause I can submit?
3. What happens if I refinance within three years?
4. Do I owe the $8,000 back to the government?
5. If I continue to make the payments and accrue equity in the home, is my girlfriend still entitled to a 50/50 split if I sell in a few years? Today there is no equity, as we have not been in the house long enough. –Lanette
DEAR LANETTE: Excellent question. I suspect that now that the first-time homebuyer credit is no longer available, there will be a lot of spin-off questions.
You can talk with your lender about removing your girlfriend’s name from title, although generally lenders will not be willing to do this. We have the same situation where husband and wife get divorced, and one spouse continues to live in the property and wants the other spouse off the mortgage. Generally, the only way to do this is to refinance. If, on the other hand, your income alone will qualify you for the loan, your lender may be willing to accommodate you.
You and your girlfriend are on title and the only way that you can get her off is either for her to voluntarily agree to do this, or go to court and seek a partition action. The latter is expensive. And if your girlfriend does go off title before the end of three years, she will have to give back the tax credit she received.
If you refinance, you will not have to return the credit to the government. According to the law, such a refund is required only when you sell the house, not refinance it.
Your last question is very important. I assume that before you bought your house, you did not enter into any partnership agreement. Let me caution readers: If you buy property with a friend or a "significant other," you must have a partnership agreement. It will spell out such matters as who pays what, what happens if one co-owner cannot pay, and what happens if one person moves out or dies.
If you do not have such an agreement, you really must reach agreement with your girlfriend immediately. If she wants to share in the equity of the house when you sell it, she must contribute financially to the upkeep of the house — especially paying her share of the mortgage, real estate taxes and insurance. You would have to pay her rent for her share of the house you are now using on your own.
I suggest you contact a real estate attorney in your area to assist you. Don’t wait too long.
Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.
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