QUESTION

What criteria must the board follow to implement changes to CC&R's?

Asked on Apr 07th, 2015 on Real Estate - California
More details to this question:
My HOA has insisted that the owners are responsible for painting their fences, but will only tell me verbally in a board meeting, nothing in writing, how that came about. Must all arbitrary actions be approved by the homeowners and written and added to CC&R's?
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1 ANSWER

Real Estate Attorney serving Oakland, CA at Sack Rosendin LLP
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In order to answer your question, the first thing I would need to do is review the deed to your property, the first deed out of your property from the original subdivider, and a copy of the CC&Rs and all amendments. In most subdivisions of detached single family homes, the homeowner owns the entire lot and is solely responsible for maintaining the entire property, including his or her side of any fences. In zero-lot-line subdivisions of townhomes, where the homes have shared side walls, any yards are often owned by the HOA. The HOA is sometimes responsible for maintaining the landscaping, any fences, and even for painting the exteriors of the homes. This responsiblity is placed on the HOA in order to assure adequate and consistent maintanence and uniform exterior appearance of all the homes, in order to protect and enhance the exterior appearance and value of all the homes. There are every manner of cross-overs and variations between these two extremes. For example, do you even own the fence? If the HOA owns it, then you have no right to paint it and it's the HOA's responsibility. Don't ignore this issue. The HOA can impose fines, make the fines a lien on your home, add the attorney's fees for preparing and recording the lien and for foreclosing on the lien, and foreclose on your home, evict you, and resell it. The attorney's fees can exceed the value of the fines, the harm, and even of the property. A recent appellate case in which a homeowner lost such a dispute with an HOA produced an attorney's fee award for the HOA of over $1,000,000.00! If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business. Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need. Dana Sack  
Answered on Apr 07th, 2015 at 2:30 PM

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