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P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 26551
Experience:  12+ yrs. of experience including real estate law.
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I have owned my home for 17 years. The HOA property manager

Customer Question

I have owned my home for 17 years. The HOA property manager used to be a neighbor and on the board and now the Property Manager for years. Many neighbors have had issues with him.

He has written letters to me and a few neighbors about mostly useless things. I have always complied. He has used and attorney against me today starts the 4th time. Recently the attorney said to cease and desist from further changes to my lawn (I had placed some decorative rock in part of the front yard 7-8 yrs. ago.) Some rock was placed approx. yrs. 14 yrs. ago.

The confusing thing is I obeyed the recent cease and desist to make any more changes.
Now the attorney letter today states I have 10 days to remove all (same issue) and to remove a tree planted 2 yrs. ago. Many neighbors have planted trees, bushes, gardens and made a lot of yard improvements without going through the architectural committee because there has NOT ever been one. When calling to ask who is on the committee the messages are not returned with an answer.

Should not the Association be responsible to all neighbor's equally and have everyone remove trees they planted?
Should not also each neighbor have to remove all improvements like rain drains, rock, bark, river rock, flower beds, and landscaping done?

What remedy is there over putting my yard back to an original situation vs. everyone else also having to do the same.

I am on social security and do not have funds to have the rock, tree, etc. removed nor will I have. I won't be able either to have funds to have the association do it.

Is not there a law in real estate where after such an amount of time things are considered a part of the property?

Thank you,
Charlene
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Ma'am I am sorry for this dilemma

There is not a law in real estate where after such an amount of time things are considered a part of the property.

You may be thinking about adverse possession, which is a law that allows a person to claim title over land if they occupy that land for a sufficient period of time.

That said, the requires an HOA to not enforce rules arbitrarily. That is, it is not legal for an HOA to ignore for all residents except for one...in effect, selectively enforcing rules to punish only one resident

If that is what is happening in your case? If the HOA is ignoring similar violations for your neighbors but only focusing on you,then if you are sue by the HOA you can use this as your defense.

You would have the burden to prove this...you would have to prove that the HOA is purposely ignoring the violations of all of the other residents and focusing on you alone...but if you can show this, you may be able to win the case (and prevent them from forcing you to change your lawn)


Please let me know if you have more questions...happy to assist if I can
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 26551
Experience: 12+ yrs. of experience including real estate law.
P. Simmons and 6 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Mr. Simmons,


 


 


Thank you for this.


 


Is there in way short of getting fines and leins on my property or being sued that I have out of this mess?

Customer: replied 1 year ago.

Mr. Simmons,


 


I do not have the funds to sue or be sued so is there anything else I can do like knowing the amount of time when something becomes a part of my property. I can do the research I just need help where to look.

Expert:  P. Simmons replied 1 year ago.
Ma'am I am sorry for the confusion

There is no law that would make an item like a rock or other landscape "part of your property"

The law does not work like that.

As I mention, the HOA is not permitted to "single you out"

They can not be arbitrary in how they enforce the HOA rules

SO your defense will be (if you are sued) that they are not treating you fairly.

It may be that the letter you received was a bluff...it costs money to have a lawyer file a lawsuit.

But if they do sue you, you would do well to have an attorney help you.

It may be your county has a legal aid that can help

Take a look here
http://www.georgialegalaid.org/

For a start...it may be you can get a low cost attorney to help you fight this silliness

Customer: replied 1 year ago.

Thank you for this.


 


I will try the web address for help.


 


I appreciate all of your help.


 


Sincerely,


 


Charlene Ahern

Expert:  P. Simmons replied 1 year ago.
Yes ma'am

ALSO, contact your county offices. Ask for the phone # XXXXX legal aid. Each county in GA has a legal aid organization. What you describe? It sounds like you may qualify for reduced or free legal assistance IF they sue you

best of luck in this fight

Phil
Customer: replied 12 months ago.

Mr. Simmons,


 


Good Morning especially for a Monday. I appreciate your reply this morning.


 


I do have a question on the same issue.


 


How long is something in place on a property until precedent is set? Especially when no complaints or demands to move the modifications were instructed initially? It seems after a certain time the precedent is in play and nothing can be done to force homeowners to remove the modification. My rock has been there for over 3-4 years and what the association is complaining about is an addition.



Many numbers of homeowners have replaced roofs with non original color and the roofs remain, some homeowners have painted front doors and shutters without original color and those are still not changed back to original color.



How can the association legally allow some homeowners the breaking of covenants and by-laws and just choose arbitrarily to not enforce them all equally to all homeowners? My guess is that they cannot.


 


 


Thank you very much,


 


Charlene Ahern


 


 


 


 

Expert:  P. Simmons replied 12 months ago.
Ma'am you ask a good question



How can the association legally allow some homeowners the breaking of covenants and by-laws and just choose arbitrarily to not enforce them all equally to all homeowners?

The answer is tied to the term arbitrary.

Under the law, the HOA is required to not be arbitrary in how it enforces its rules

I did some research under GA law.

Here is the case that applies

Waller v. Golden, 288 Ga. 595, 706 S.E.2d 403 (Ga., 2011)

That case holds

Where, as here, the [covenants] delegate[ ] decision-making authority to a [Home Owners Association] and that group acts, the only judicial issues are whether the exercise of that authority was procedurally fair and reasonable, and whether the substantive decision was made in good faith, and is reasonable and not arbitrary and capricious. (from Saunders v. Thorn Woode Partnership, L.P., 265 Ga. 703, 704(2), 462 S.E.2d 135 (1995).)


So the standard is clear. The HOA can enforce its rules. HOWEVER, if they are not doing so fairly? That is grounds, under the law, to challenge the action.

The law does not set a minimum number of days or event...they look at every case based on the facts of that case

For you if you can show that the HOA is signaling you out, individually? And enforcing the rules against you alone? Then you have a case to ask the court to ignore the order


P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 26551
Experience: 12+ yrs. of experience including real estate law.
P. Simmons and 6 other Real Estate Law Specialists are ready to help you
Customer: replied 12 months ago.

Mr. Simmons,


 


THANK YOU and this thank you does not come near the iceberg for even a chip off how much I appreciate ALL OF YOUR HELP AND TIME for me!!


 


Wow this is great news.


 


Thanks again and I will go back and rate your service excellent.


 


 


Sincerely,


 


Charlene Ahern

Expert:  P. Simmons replied 12 months ago.
Best of luck with this Ma'am

And show that case I found

Waller v. Golden, 288 Ga. 595, 706 S.E.2d 403 (Ga., 2011)

To any attorney who is able to assist you
Customer: replied 12 months ago.

Mr. Phil Simmons,


 


I have printed out your information and will let my attorney look it over. I took your advice and look forward to putting this mess behind me.


 


Thanks again,


 


Charlene Ahern

Customer: replied 11 months ago.

Hi Mr. Simmons,


 


I have my attorney working on this.


 


Again thank you for your help.


 


Charlene Ahern

Expert:  P. Simmons replied 11 months ago.
Yes ma'am. Best of luck in this fight

Phil

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