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Legal issues in real estate

HOA Ruining Your Life? 8 Things It Can’t Do—and How You Can Fight Back

January 15, 2020

Living with a homeowners association (HOA) can come with a legion of perks—like gorgeously manicured common lawns, swanky amenities, and some rad Fourth of July barbecues.

But there’s a reason that a stigma exists against homeowners associations: Board members on a power trip can institute and enforce some ridiculous restrictions.

Ridiculous, like “restricting the color of trampoline covers” ridiculous.

Like “You must keep your garage door open during the day” ridiculous.

Like “You must carry your cocker spaniel through the lobby” ridiculous. (Come on!)

Even when you feel as though your HOA rules have turned into an implacable steel trap determined to ruin your life at every turn, find comfort in this: Homeowners associations are bound by the rule of law, no matter what the president of the board says.

State and federal law restrict the homeowners association’s abilities to restrict you.

Below, find eight things HOAs can’t enforce on homeowners.

1. Discriminate undiscriminatingly

Your homeowners association board might like to play at being tyrants, but here’s a line it can’t cross: the Fair Housing Act.

“An association must be careful enacting and enforcing rules that would single out or disadvantage any group identified in the Fair Housing Act,” says Craig T. Smith, a lawyer in Hilton Head Island, SC.

That means that your homeowners association can’t fine you or keep you from purchasing a home in the neighborhood because of your ethnicity or race.

It also can’t kick you out because members of the board hate your religion, or don’t like Germans, because you have children, or because you wear a Make America Great Again hat on a regular basis.

States often have additional protections safeguarding the homeowner. For example, California law protects sexual orientation and gender identity.

2. String you out on the (clothes)line

Nineteen states have laws on the books to prohibit a funny HOA restriction: your right to “solar drying.” (That’s a fancy term for using a clothesline.)

This time-honored tradition saves money and protects your clothes, but to your eagle-eyed HOA board, all those fabrics blowing in the breeze may not look “uniform.”

Too bad, buckaroos: Since almost half of states protect your right to dry, any anti-clothesline additions to the covenants, conditions, and restrictions (CC&Rs) are downright unenforceable. Feel free to let your denim wave in the wind.

(There’s one caveat: If your backyard is shared with another homeowner, the HOA might have the right to restrict your strung-up lines.)

3. Fine you for fun

Fines are the lifeblood of a malicious HOA—and we cannot, unfortunately, tell you that they’re blatantly illegal. But they “must be set forth in the association’s rules and bylaws,” says Barbara Jordan, a real estate lawyer in Columbus, OH.

Are threatening letters making an appearance in your mailbox, telling you to trim that rosebush or face a fine? Check the community’s CC&Rs before complying. If that fine isn’t listed, you might not need to pay.

Of course, that doesn’t mean your HOA board will roll over, either; you might need to appeal the fine.

If so, first scrutinize those CC&Rs to make sure you have standing. Then, gather all the evidence you have and present it at the next board meeting. (Your HOA may have specific instructions for this process—make sure you follow them!)

If your argument is sound, it could pull back the charges.

4. Make decisions on the fly

Your community’s HOA treasurer can’t suddenly decide she hates pink mailboxes. Next time Shirley Homeowner comes over complaining, practice these magic words: “Is that mentioned in the CC&Rs?”

And slipping HOA rules in under the cover of darkness is a big no-no. The regulations for how new rules can be enacted should be outlined in your CC&Rs—and if the HOA isn’t following its own stipulations, you have a valid complaint for any secret swashbuckling.

If you do suspect something shady is afoot concerning what is included (and what isn’t included) in your HOA rules, start requesting documents and attending public meetings.

5. Demand you take down your dish

Your cable TV decisions are protected, thanks to the FCC’s Over-the-Air Reception Devices Rule. No matter how ugly your HOA thinks your space-gray satellite dish is, the board members can’t force you to take it down. Hello, cheap cable!

You might find that some HOAs still have antenna restrictions written into their covenants. These may be retro artifacts from pre-1997, when the FCC rule came into play.

If you spot these curious addenda in your CC&Rs, take your concerns straight to board members. After all, you have the federal government on your side!

6. Nix native plants

Not all states protect your right to grow an environmentally friendly garden abundant with native plants. But if you’re in Texas or California, you can push back if the board’s not savvy with agave.

Florida, too, has its own homeowner-friendly rules: HOAs can’t restrict plants simply because they’re not in the community’s overall design plan.

If you’re a homeowner in one of those states, persuading your HOA to embrace eco-friendly policies isn’t impossible. With the right attitude and enough evidence of go-green benefits, you might just convert the entire neighborhood.

7. Keep you out of court

Snippy HOAs might make you think they’re above the law—but if you’re truly in a bind, you can challenge that assertion.

Chances are good (although not certain) that you’ll have the upper hand in a proper court of law, Smith says, especially if the board of directors acted in an underhanded manner.

If the association’s governing documents allow it, start by demanding a hearing before the board. If that demand is met with silence, take it one step further: to the actual courts.

“This is typically a move of last resort,” Smith says.

But if you’re past the point of mild frustration, a lawsuit might do the trick. Homeowners have sued their board for the right to display a sign critical of the HOA.

One Olathe, KS, homeowner successfully filed a lawsuit to keep his elaborate landscaping—which another resident said was the “nicest-looking [landscaping] in the entire neighborhood.”

8. Beat you down

No matter how many letters and fines the board throws at you, you still have rights.

“Show up,” Jordan says. “Go to the meetings. Be on record as objecting to the issues. Write letters.”

Just make sure to follow the process for objections.

“Do not miss deadlines or forgo opportunities to be heard,” Jordan says. “That will only hurt your case.”

And do what you can to get your neighbors on board. Together, you can call for new elections or push to scrap excessive or unnecessary rules.

The post HOA Ruining Your Life? 8 Things It Can’t Do—and How You Can Fight Back appeared first on Real Estate News & Insights | realtor.com®.

How Do Unmarried Couples Divide Property After They Split Up?

September 25, 2018

Today, 14% of Americans aged 25 to 34 live with their significant other without getting married, and many of these unhitched couples are buying homes. Which begs the question: If this merry, modern-day union goes south, how do unmarried couples divide their assets after they split up?

When those more traditional duos, aka married couples, divorce and divvy up property, the process is fairly simple (at least in legal terms), since there are laws in place to protect all parties and clear-cut rules on what’s kosher‚ or not. But when you’re cohabiting without tying the knot, it’s a very different animal. Here’s what you need to know about buying (and possibly splitting) a home with a significant other when you two haven’t walked down the aisle.

How does dividing real estate assets differ for married and unmarried couples?

When married couples divorce, there are several options available to them in dividing any real estate they own. One spouse can buy the other out, they can opt for a delayed buyout, or they can sell the home and split the profit.

This decision is all mediated by divorce court, and, notably, the court can force the sale of the house if the (soon-to-be ex) couple can’t agree on what to do with it. This is so that if one party is desperate to sell (to, say, buy a home elsewhere) or buy the other party out (so that one of them can stay put as sole owner), the courts can make that happen.

With unmarried homeowners, however, the courts’ hands are tied: In most states, provided both unmarried partners have equal legal ownership—meaning both of their names are on the title to the property, no matter how much either party contributed to the purchase of the home—both must agree to sell the place before it’s put on the market.

“In a divorce case, the court will [force the sale of] the house—no problem,” explains David Matthews, a partner with Weinberg Wheeler Hudgins Gunn & Dial in Georgia. “With unmarried couples, you’d have a hard time. You could never force the other side to buy you out. If one party wants to be really obstinate and not sell, the other party has a problem.”

Plus, even if an unmarried partner does agree to a buyout of the other, the cost of doing so is more expensive than it would be for a married couple doing the same thing.

“Transfers of assets between the parties in a judgment of divorce are tax free,” says Lynne Strober, the co-chair of the Matrimonial and Family Law practice at Mandelbaum Salsburg in New Jersey. “This means that if one spouse transfers their interest in the property to the other party, there is no tax consequence. However, if there is a buyout between an unmarried couple, tax issues may arise, as the transfer may be a taxable event.”

This means unmarried couples should talk to an accountant about how much they’ll pay in taxes when transferring assets, so they aren’t blindsided by the costs.

What can unmarried couples do to protect themselves if they’re buying a house together?

Due to the legal complications noted above, numerous experts agree that unmarried couples (whether they are romantically involved or business partners) need to have an agreement in writing before they buy a home together. This is the only real way to protect yourself and make sure the property is divided fairly and without issue in the event of a breakup.

“When unmarried couples buy a home together, they can’t do it on a handshake,” says Matthews. “Because in almost every state, if you have an agreement regarding real estate, it has to be in writing. It doesn’t have to be a 40-page formal document drafted by a professional lawyer, just an agreement about how things are going to be divided.”

These contracts, sometimes known as “cohabitation agreements,” should cover these things at a minimum:

  • What to do with a home in the event of a breakup (sell it and split the proceeds, or allow one party to buy the other out)
  • The percentage of profits each party will receive upon sale
  • How to handle unanticipated disputes that may arise in the process of dividing the asset. “It’s very important to have to have an agreement about if you can’t reach an agreement: Who’s going to decide it?” says Peter M. Walzer, an attorney at Walzer Melcher in Los Angeles. “Just saying ‘We’ll go to court’ is a very expensive option, so you may want to agree to go to a mediator first.”

What happens if couples don’t have a cohabitation agreement?

If an unmarried couple buys a home without a written agreement in place and splits in a less than amicable fashion, they could be in for a lengthy and expensive legal battle if they can’t reach an agreement about the property on their own.

Both Matthews and Walzer agree that the legal fees associated with litigating issues of ownership or equity in the home would be likely to run to at least $25,000—and could tally up in the hundreds of thousands, often well above the value of the home itself.

“I’ll say this: It’s a whole lot cheaper to hire a lawyer to write up an agreement before you buy a house than it is to litigate it later on: A stitch in time saves nine,” says Matthews. “There’s no way to predict legal fees, but I don’t see any way you could even get the ball rolling for less than $25,000 to $50,000.”

Of course, bringing up the idea of a contract that’s specifically meant to protect you in the event of a breakup is a delicate matter. Experts say that many couples fail to get anything in writing because they are reluctant even to broach the subject. But it’s vital.

“When people get together like this, they don’t want to put it in writing, because it’s awkward. It’s hard on the relationship. It’s like getting someone to sign a prenup,” Matthews says. He feels, though, that it’s crucial that they take the time, put it in writing, and sign an agreement. “Preferably have it witnessed. Map out how things are going to be done, and who owns what.”

The post How Do Unmarried Couples Divide Property After They Split Up? appeared first on Real Estate News & Insights | realtor.com®.