As I took a break from studying Property this morning, I perused the Detroit Free Press, as I am wont to do. On the website today I read an article by Mitch Albom, who I consider to be one of the best newswriters in the country, and whose books I've enjoyed immensely (Tuesdays with Morrie, The Five People You Meet in Heaven). His topic today dealt with a nativity scene in a neighborhood association community. It seems a family in Novi, MI put up a nativity scene (and a Santa Claus) in their front yard, and received notice from the association that they were to take it down, as it violated a "rule." The family complained, and talked about it on the radio, and after receiving heavy flak, the neighborhood association relented.
In the article, Mitch made the statement, "When it comes to your front lawn, it's your God and your grass." The point he was making is that residence rules such as what you can have on your front lawn, or how big a flag you can fly, or whatever, are wrong. He believes that people have a right to do what they want on their own property, and there's no inalienable right for people's property values to go up.
He quotes the son in the family as saying, "They said they'll fine us, and we said go ahead ... They have no right. They are not the government. This is not about separation of church and state, either, because they are not a state."
The child is partly right, if I understand my property correctly (which I might not, since I'm still studying it). They are not a state. But they do have a right. The point that the family and Mitch, and all the people who called and complained missed is a very important one. The family CHOSE to live there. They CHOSE to follow the community rules, whether they knew them or not. If they wanted to live somewhere where they could display items on their front lawn, then they should have moved somewhere without that deed restriction. The community absolutely has the right to tell them to take it down, if it indeed is in their rules. The association MUST challenge those small violations of the deed restrictions, or they can be estopped from challenging the bigger violations, such as opening a rendering plant next door.
"But that's just ridiculous, Steve. Nobody would open that, and EVERYONE knows that that's doing too much on the property," you might say. Well, hold on a minute. If your argument is that it's their property and they can do what they want, then what is to stop them? Especially if you put the kibosh on the homeowner's association? If it's not acceptable to open a rendering plant, but it is acceptable to place a nativity scene, then where does the association draw the line? That's simple, you draw the line at the list of regulations passed when the property was first sold to the family that has been told to remove their nativity scene. This has nothing to do with religion or the free exercise thereof. It has nothing to do with the right to own property. It has everything to do with one family choosing to accept a standard of rules and then complaining when the rules are upheld.
The family should have accepted what the homeowner's association dictated and removed the nativity scene. They've weakened the defense to larger claims against the community by their actions.
9 comments:
One wonders how clearly and explicitly the property CC&Rs were written. Some are loosey-goosey about "you can't do things that are inconsistent with community norms," and some spell things out very clearly: "no political signs, no religious signs, no lights other than security lights, etc."
And neighbors in planned communities have one very significant concern, which is maintaining property values. My bet is that Albom would be quite upset if his neighbor turned his lawn (the neighbor's) into a parking lot for rusted out old cars -- something that's always sure to bring down the value of every home in the neighborhood.
I think I'd draw the line between speech issues and property value issues in the absence of explicit, agreed upon CC&RS.
He did comment that there is no inalienable right to increased property values, and that a homeowner would be able to do what they want on a lawn irrespective of the effect on the neighbors.
As for political signs, I thought that was overruled in Ladue v. Gilleo... (that's a bit of a nonsequitur). There are some things that are unconsitutional to restrict, such as Shelley v. Kraemer, and I thought Ladue was similar to that. I have to reread that, though.
Having never lived anywhere with a neighborhood association, I'm actually a bit amused by this. My initial reaction was "Of course they can put up a Nativity!" Then I read further and understood Steve's point about abiding by the rules you've agreed to.
The not-nice side of me is thinking snide thoughts about the unintended consequences of only wanting to live with your "own kind" in a hoity-toity neighborhood. That may be patently unfair--my attitude is formed based on the types of neighborhoods in my area that have homeowners associations. Still, it crossed my mind to say "Hey, come live among the great unwashed, and you can put up all the Nativity scenes you want!"
Okay, that's done. I'll be nice for the rest of the day.
Pat,
I think you might have misread my post. Nowhere in the post did I say that the homeowners knew the rules. What I said was that the homeowners were responsible for following the rules regardless of their actual knowledge of the rules. This requirement was binding upon them when they bought the property pursuant to the restrictions and pursuant to the homeowners regulations.
You're right per the contract with the homeowner's association. When you purchase in a community subject to a homeowner's association, you sign a contract agreement. That agreement will usually say that you are bound by the regulations put in place by the homeowner's association. If the contract allows for the association to change community rules, it will happen as a result of a decision made after a homeowner's association meeting, which, as an owner of a home in the community, the homeowner is a member. At the meeting, the homeowner can (and indeed should, if they want their argument to have any merit) air their grievances with the proposed and extant rules.
I don't really understand your point when you say that the homeowners often don't realize they are entering into a contract. All sales for property must satisfy the statute of frauds and must be signed by the parties to be bound. If someone doesn't understand that they incur obligations by signing into an agreement, it's very difficult to generate sympathy for them.
The ACLU will not get involved in a dispute between property owner and homeowner's association because there are no civil rights being violated. At most, the damage that incurs is a restriction on use of your property that you agreed to. There are limits, of course, in that anything that violates public policy or isn't facially neutral can't be restricted out (see Shelley v. Kraemer, Ladue v. Gilleo, etc.).
You state that the homeowner's association has a responsibility and must adhere to the contract as well. That is absolutely correct. They have an obligation to the community and have a duty to restrict for the general welfare of that community. That means that they must dutifully challenge all violations of the deed restrictions, lest they become estopped from challenging the major deed restrictions. This general welfare duty may include the right to increased property values (See State v. Berkley), in which case, it would be necessary to protect against blight in a front yard as that would lower neighboring property values. It's unclear how that would happen with a nativity, but it's easy to see it with 30 toilets planted in the yard, and the best way to keep that from happening is to not allow it at all.
You're absolutely right, Mary. The HOAs can make the decisions sans the concurrence of the homeowners. I never said that they didn't.
I'm unsure of what government documents you refer to for the house, but I think that a certain level of caveat emptor might apply in a situation where you are buying a place where you intend to live a large part of your life. If a person signs a contract without viewing the contents of that contract, then it's difficult to empathize for them. Likewise, a consumer should inquire as to any restrictions into a property they seek to acquire. If I were to buy a house and I wanted marketable title free of defects, then I would do a record check to ensure there were no defects on the property and that the property wasn't subject to any deed restrictions. If it was, then I would find somewhere else to purchase unless I felt that I could live with those restrictions. If a buyer isn't savvy as to the items that go into the house buying process, then they should hire a property lawyer to help them out, not complain about the rules not being right when you agreed to be held subject to those rules.
As an aside, I must say that I'm surprised that this post has received the commentary it has. I put it up as a break from studying property law, and it just happened to be similar to some of what we've covered.
Pat, Mary, et al., I appreciate your taking the trouble to post on the issue, as it's afforded me an excellent opportunity to try to apply what I've learned, and I hope to see you back here at the ditch.
Kieth, thanks for stopping by!
A restriction stating that a fence, wall, structure, etc. must be "harmonious" as your HOA regs requires might not be held to be enforceable as it allows for too many arbitrary decisions. It's too subjective, as far as I understand. However, that might only extend to zoning commissions and not necessarily to HOAs.
Now, for my dirty little secret. I don't like HOAs. I don't like master planned communities, and I believe that people who purchase property should be able to own it outright. Unfortunately, it's getting harder and harder to find that in this world, so you have to be more fastidious in your searches.
However, if you purposely avail yourself to requirements that you are to be bound to current and future rules established by the HOA, then you should be held subject to them. If it turns out you don't like those rules, you are free to sell your property and move to another location (yes, I'm aware of the feasibility of that argument, but it exists nonetheless, if you're sufficiently upset with the current system). There could also be legal recourse, depending on the language of the documents.
If a Real Estate agent misrepresents to a purchaser as to the requirements of the community, then the consumer should have a remedy under local law, here in Texas we have the Deceptive Trade Practices Act which would allow treble damages for misrepresentation knowingly made and relied on to a consumer's detriment, which could be the case if they didn't get what they thought they were buying. Another reason why consulting an attorney might not be a bad idea before buying.
Mary and Pat, I agree with your statements that the HOA board members must be held to the same standards that they apply. Again, that goes to the enforceability part of the association's agreement (see "harmonious," infra).
Raunstar wrote "a 'rendering plant' would not be possible even in the HOA-Free Zone, because that property would be zoned for residential use; those zones are controlled by the city, so your argument there is just plain WRONG!" If you live in an area that does not have zoning or zoning that is inclusive of different types of development, such as the one that I live in, you do run the risk of having an industrial property or a "rendering plant" built next door to your home.
Having lived in development with a HOA, I have lived with neighbors who would not mow the lawn until receiving a notice from the HOA, who would park their cars on the street blocking the mailboxes for the community until they received notice from the HOA, who allowed all of their plants in their front yard to die and left the dead tree until receiving notice from the HOA...and they were right next door to me.
I even received notice once to remove the little weeds that sprouted in the sidewalk in front of my house. Was I upset? No. It detracted from the look of the area not only in front of my house, but for my neighbors.
Our HOA did have meetings once per month to decide on issues for the community. We received a letter in the mail with the agenda with the date and time. Perhaps ours was an anomaly?
It looks like we're slipping into a situation where the sideshow is running the circus, so I'm going to close this up by reiterating the original point of the post.
The consumer buys the house. It is the consumer's responsibility to determine any defects in the title. It is his responsibility to ensure that he is getting what he wants. If he signs a contract subject to a deed restriction, then he is bound by that restriction so far as it doesn't violate public policy. If the homeowner chooses to remain ignorant of what that policy says then he has no remedy by calling unfair. If the homeowner knows of the restrictions of record and nevertheless decides to live in the community subject to the restrictions on record, then again, he is without remedy via unfair. If he purchased a property subject to an assurance by a third party that it was not subject to restrictions and it turned out there were, then he has a remedy against the person who provided him misleading information.
The homeowner's association has a duty to the residents of the community to enforce the rules objectively. If they do not enforce the restrictions constantly, or if they only enforce subjectively, then they can be estopped from enforcing other deed restrictions in the future. The uneven application of rules, however, is an affirmative defense that must be proven at trial by the homeowner.
If you choose not to live in a community that is subject to deed restrictions, then don't. If you find out that you are subject to restrictions and you don't like them, then sell your house and move - to another community, another city, another county, another state. There is nothing in the Constitution that requires you live right there. If you choose to live where you do despite the restrictions, then accept that those restrictions are going to be a part of your life.
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