Expert: Karyn Foley - 7/30/2010

Question
QUESTION: I am having an issue with a community I moved into in 2003.  It was made clear at the time of closing that there would be an HOA and that dues would start being collected at the time the developer turned the community over to the residents (I think it was upon 90% of houses being completed).

Among the rules and regulations spelled out in the HOA Covenants are rules regarding window A/C units.  It is very clearly written that window units ARE NOT ALLOWED.  Another rule is that you are not to park overnight on the street...that you should park in your garage or driveway.  (I don't have the exact verbage on the R&R but I can get a copy of this and forward to you if needed).

I live on a corner lot.  Since moving in, my neighborhood has had ongoing issues with BOTH of the rules I mentioned above.  I've turned neighbors in for window units as it cost me more to have my home fitted with central heating and air and feel that if I obeyed the rules, then they should as well.  After all, they received the same set of rules when they bought that I did (to my knowledge, no amendments to the R&R have been made since the HOA began).

The HOA is willing to send letters to offenders regarding the window units, but they WILL NOT take up the issue of neighbors parking on the street.  I was even told yesterday that I should "contact the City or your Alderman" regarding this.  My Alderman has nothing to do with the HOA covenants, nor do the police.  True enough, this is NOT a gated community and these are city streets, but these people signed the same set of rules that I did when I purchased.  What this HOA is doing is selective enforcement--enforcing one rule, but not others.  It's been a serious issue for me on the corner lot because I now have two neighbors with 4 cars parked beside my house while I park all mine in garage and driveway as outlined in the covenants.  They do not park in their garages as they are using them for "storage".

The last newsletter sent out had the following:
"If at all possible, use your driveways and garages for parking your vehicles; this is a covenant requirement.  Parking in the street can create difficulty for passage in the narrow thoroughfare.  Please do not park in front of your neighbor's house and do not block any driveway.  No vehicles should be parked on the grass, and this includes boats, motorcycles, ATV's, etc.  All vehicles must be parked on a concrete pad, the driveway, or behind the fence in the back of the property."

When I asked why it is that this is even a rule if it isn't enforced, the HOA board will not answer me.  I'm being given the run around.  Nowhere in the covenants does it say "if at all possible" the way the newsletter did.  If it is legal for these people to park on the streets and the HOA does not enforce this rule, then why bother paying my dues?  For that matter, why is this even a rule at all if that's the case?

What can be done about this situation?

ANSWER: Dear Rachel:
 1.  With reference to parking on the streets, the first thing you should do it check with your municipality.  Who owns the streets and who pays for the streets?  If they are city streets with the city paying for their maintenance and upkeep, then city laws apply. The HOA then can only suggest and advise courtesy; it is up to the city to ticket cars but only if they are in violation.  
 2.  If this is a legal HOA, then they should be enforcing their CC&R's.  If not, call the city's legal department and find out the government agency that has jurisdiction of HOA's.  Seek guidance from that agency and give notice then to your association as to what you are doing and why.  They will be under scrutiny from the supervising agency and will have to answer legally if they are not doing what they are supposed to be doing.  Selective enforcement is just asking for later legal problems.  Meet with the president of the HOA and ask for answers.
 3.  You have waited seven years to seek relief - why did you wait?  It appears as if you have been given tacit approval to the board for not enforcing the issue of air conditioners.
 4.  There are strict rules on how to run an HOA, covering all of the above, plus meetings and duties of the board of directors.  
 5.  Try to gather other members of your community together for this common cause.  A large group speaks of strength in numbers and group support.  One person can often just be branded a common complainer.
If you address all of the above, and still have gained no satisfaction and feel you are in the right,  you may have to consult a real estate attorney who can give you direction and act as your advocate.
Good luck to your endeavor, I hope you prevail!
KARYN FOLEY

---------- FOLLOW-UP ----------

QUESTION: To follow up:
1)  I have written a letter to my Alderman regarding this issue and attached all the verbage from the HOA covenants document that I received when I purchased my home.  The city is responsible for the steets but we have lakes here as well and yet they are marked "private" and only residents are allowed to fish there.   

2)  I have (more than once over the last 7 years) complained to the HOA board and been given the "blowoff".  They never want to take any responsibility for ALL the covenants.  They pick and choose which to enforce.  I have multiple letters complaining about this.

3)  I have complained about all these issues before and been given the blowoff on the street parking one ONLY.  They have followed up on A/C unit issues and had those resolved (slowly) but they've NEVER addressed the rule on on-street parking.  I've been given multiple different answers/responses by the HOA officials.  They've not fined anyone for breaking the rules.

I now have even more ammunition and mentioned what has happened to my Alderman. Yesterday I came home to discover that my garbage was NOT picked up because my neighbor parked in front of my house and blocked access to the can.  This means I'm not receiving city services due to someone else's lack of enforcement.  I mentioned in my letter that if someone's house catches on fire and the firetrucks cannot make it down the street due to parking that we're looking at a potential lawsuit.  I also have sought a legal representative to offer assistance on getting this resolved.

Answer
Dear Rachel:  I have answered all of the questions that refer to assistance from a real estate broker.  Now you are embarking upon a legal situation.  Real estate brokers are not allowed to "practice law without a license".  You could hire an attorney.  KARYN FOLEY