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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Around 9 years ago I bought a single family home in close

Customer Question

Around 9 years ago I bought a single family home in close proximity to condominiums. Months late I found out I was part of the condominium associations and should have been paying fees. Can a single family residence legally be governed by a condominium association?
The association has never allowed anyone that has lived in the home to use the association club house or pool citing past due fees. These fees were attorney’s fees for “locating” me, and miscellaneous associated charges. I refused to pay those fees and began paying monthly association fees. Some fees were paid late while others were paid months in advance. People who lived in my home were not allowed to use clubhouse or pool, even when fees were paid on time or in advance. Did association have the right to do this?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

HOA membership is based on "reciprocal deed restrictions" - so you will want to start with a title search on your property.

This should have been done when you first purchased the property.

When you bought the property, any past due assessments should have been paid as a part of the escrow (so you should not owe for any dues that were accrued prior to that date - if the association failed to collect these dues, then they must pursue the prior owner, that cost is on the association, not you (the current owner), the past owner may be held liable for these costs, but that is not your problem).

Regarding assessments that were incurred following your purchase, you would be liable for these assessments (assuming that you are in the HOA - again, start with a title search and confirm). You can be responsible for attorney's fees incurred in performing collections, however, attorney's fees incurred in "locating" you are not appropriate, the HOA cannot assess fees against individual units for simply cleaning up their previous management issues, errors, and poor record keeping (that is on the Association, not the owner). Debt collection efforts (so if they have to sue you to collect the assessments) can be placed on you.

If you are a part of the HOA, you are entitled to all amenities. Some HOAs do have limitations on certain things if owners are delinquent, but these limitations must be in the written CC&Rs (or governing documents, sometimes there are different titles), you should have a written copy of these documents. The board cannot arbitrarily make up rules like this.

Customer: replied 1 year ago.
I believe my deed does have restriction. My question was, even if the association agreement says they can deny use of pool or clubhouse if you owe fees other than monthly association fees, is this legal? does this not fall under other laws regarding services? in other words, if fees are monthly, should the resident be allowed use of the pool and clubhouse, and other amenities in the months fees are paid on time or in advance regardless of any other outstanding fees? do bailee/bailor laws apply?
Expert:  CalAttorney2 replied 1 year ago.

Bailee/bailor laws do not apply.

However, that is not the issue. In most cases, if you owe outstanding balances to the Association, and the Association has valid restrictions that limit participation in the Association activities/ameneties if a debt is owed, then they apply - regardless of the character of this debt.

But again, these are creations of contract, so the specific terms of your HOA's governing documents are controlling, and if the limitation on use is limited to a delinquency in assessments, that is all they can use that restriction for. The Board cannot arbitrarily expand it to suit their needs.

Customer: replied 1 year ago.
The area is mostly condominiums with one short street adjacent to the condos containing approximately 6 or so homes. Back to an original question, can a single family residence be governed by rules designed for condominiums? The area is mostly condominiums with one short street adjacent to the condos containing approximately 6 or so homes. Was it proper/legal to include single family homes into a condo association?
Expert:  CalAttorney2 replied 1 year ago.

It is certainly legal.

Whether it is proper is not really a legal question - unfortunately there are a lot of very poorly written/drafted HOA documents out there.

It can be done, and it can be done very well.

If the documents are not drafted clearly, or appropriately, they may need to be tailored (redrafted) to better accommodate the actual nature of the HOA - the HOA must remember that it has a duty to all of the owners/properties that it serves. This can be bridged for a short time through adjustments in policies using the Board's rule making authority, but if the CC&Rs or other governing documents are simply incompatible with the properties that it encompasses, it is really much more appropriate for the board to invest in an HOA attorney that can draft a proper set of governing documents to meet their needs/obligations.

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