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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 88394
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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My question is regarding a very aggressive HOA in a subdivision I own

Resolved Question:

My question is regarding a very aggressive HOA in a subdivision I own 3 rental properties in. This is a new subdivision. When I purchased the 3 homes, there wasn't a HOA. Can the newly established HOA run up fines, etc on my properties? file a legal lien against my properties?
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  Richard replied 11 months ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good morning. Can you provide me more details regarding the basis for these fines? Thanks.
Customer: replied 11 months ago.

Im trying to attach a doc but software wont let me

Expert:  Richard replied 11 months ago.
Thanks for your reply. I'll forward this to customer service....they should be able to help you with this.
Customer: replied 11 months ago.

it's still doing it. I attach the file but then it locks out when I try to hit "reply to expert

Expert:  Richard replied 11 months ago.
Hi there. Is is possible for you to post it on the internet and then give me the link?
Customer: replied 11 months ago.

http://www.heritagepropertyinvestments.com/The_Preserve_at_Mtn_Crk_HOA_Statement.pdf

Expert:  Richard replied 11 months ago.
Thanks. I'm going to have to opt out because I think given the various issues running through your question...such as the original formation of the HOA, the CC&R's of the HOA, and the underlying issues regarding these fees, I believe you'll be better served by a SC-based expert. Please do not respond to this post as it will only slow the process of such an expert picking up your question. Take care.
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

As this is a new subdivision, is the developer the one who formed the HOA and has control over it still?

Was the HOA formed legally and is it registered?
Customer: replied 11 months ago.

please review link posted above to view doc from HOA.

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

I did review it, it is a bill for violations. I was asking to find out if this HOA was legally formed, because if it was legally formed, even if it did not exist when you bought the property, they can indeed fine you and pursue you for fines in accordance with their bylaws and you have a right to dispute the violations and prove you did not commit them and go to court against the HOA to remove the improperly cited violations.

Whether or not you violated is reviewable by the court. If the HOA was legally formed, then they have a right to enforce their bylaws and rules against all homeowners and that is why I asked you the questions I did above.
Customer: replied 11 months ago.

How do I determine if it was legally formed?

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for you response.

Under SC law, for a developer to form an HOA they must submit Covenants, Codes & Restrictions (CC&R) to the recorder of deeds to be recorded with the subdivision map. Then to register a HOA, they must file an application with the SC Division of Consumer Affairs (see: SC Statute 25-52-140).

Also, under HOA laws, they have to give you a right to appeal any levy of fines for alleged violations. Thus, when they cite someone for an alleged violation, which they have the right to do if it has been legally formed, the owner cited has a right to file an appeal to the board of the HOA to appeal the violation and if the board denies the appeal, then the owner has a right to go to court to file suit against the HOA and prove that there was no such violation that occurred that the HOA is trying to charge them for and get a declaratory judgment ruling to get the fine dismissed.

If the HOA was legitimately formed, then even if it did not exist when you made the purchase of the homes, they do have a right to cite people for violations and pursue them to make them pay I am afraid if they prove the violation did occur.



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Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

Customer: replied 11 months ago.

Are there any restrictions on how much penalties they can charge?

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

No, the limits of fines are based on whatever they have in their bylaws. HOAs are bad news and that is why when most attorneys get clients looking to buy in an HOA area, they check the board out carefully, because many HOA boards are abusive and power hungry and we tell people to run away from them. However, the fines are not governed by laws in SC or any state, they are governed by the HOA and HOA bylaws and the HOA act lets these associations run autonomously within the scope of their CC&R and bylaws.
Customer: replied 11 months ago.

If I attend a meeting, where every other property owner is furious as well, and we vote to change the fees will that correct this issue?

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

You must review the bylaws to determine how they state owners can pass a new bylaw, which would be needed to remove the fines or place limits on the fines. But, yes, the owners can pass a bylaw to change these fines and even enforcement.
Customer: replied 11 months ago.

Can I upload a copy of the bylaws and have you look at them?

Expert:  Law Educator, Esq. replied 11 months ago.
Yes, you can and then you need to ask the specific questions you have about those bylaws as well.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 88394
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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