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We purchased a home in a gated community with an HOA but we…

We purchased a home in...
We purchased a home in a gated community with an HOA but we were not in the HOA nor do we intend to. Will we be forced to join?
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2/27/2017
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 103,212
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Likely, yes, I am sorry to say. HOA membership is usually mandatory. Unless the CC&Rs state that it is voluntary (most do not), you will likely be forced to join.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved rudeness or wrong information. Please be kind!

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Customer reply replied 12 months ago
That was not the news I wanted to hear; we are also putting in a pool which in the guidelines says needs approval from the association. Will they be able to block the completion of our pool if we do not join or can they stop the construction process?
they will be able to block construction of the pool I am afraid. And if the property is part of the HOA regardless of you being active in it or not, they can do this. You do not have to "join" the HOA - you are already a part of it once you own the property.
Thanks again for not shooting the messenger in advance.
Gentle Reminder: Please, use SEND button to keep chatting, or PLEASE SELECT THREE OR MORE STARS and click FINISH to submit your rating when we are finished. You may always ask follow ups at no charge after rating.
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Customer reply replied 12 months ago
The property was not part of the HOA when we purchased the home. It was specific in the REPC that we were not part of the HOA and that we could join if we wanted. I think that is where the confusion comes from. We were elated to know we were not part of the HOA and now hope it doesn't come back to bite us. Does knowing that the property was privately owned and not in the HOA change anything?
My apologies for the wait.
But is the property part of the HOA now? It is possible for a property to be attached, but generally this must be done voluntarily on behalf of the owner. So how did it get attached, if it did at all?
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Customer reply replied 12 months ago
No it is not attached to the HOA. We received a violation notice from them while we were out of town with an attached picture of our garbage cans, saying they were in view of the road. We sent them a copy of the REPC to show them we are not part of the HOA. They in turn told us they would be fixing the broken gate and that when it's fixed we would not have access to our property unless we were members of the HOA. That's my question...can they lock us out from our home or should the road be considered an easement to our property and can't be restricted? Do we have to join the HOA?

Ah, I see. Okay, define what they/you mean by "our property," then? What part of property are they restricting you from, AND, if it is used for egress/ingress, it is the only part available for egress/ingress?

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Customer reply replied 12 months ago
There is only one road in/out of the community which they say is a private road controlled by the HOA and have the right to deny access. This road is the "only" way to get to our house. Our property meaning our home and land. I believe this is very unusual circumstances since the property where our house is was privately owned and never became part of the HOA when the additional area around it was developed.

Thank you. Well then, it is technically their property. And your home is not subject to the HOA. But because the property is that of the HOA, they can deny strangers access to it. You are strangers.

The only way around that is to threaten (or to file) a suit in Court, arguing that one needs that access for egress/ingress. If the Court agrees, it would provide someone in your situation with an EASEMENT FOR NECESSITY, which is available if the party is landlocked and it is the most practical and least intrusive access to the landlocked property though the HOA's common element.

Gentle Reminder: Please, use SEND button to keep chatting, or PLEASE SELECT THREE OR MORE STARS and click FINISH to submit your rating when we are finished. You may always ask follow ups at no charge after rating.

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Customer reply replied 12 months ago
because we are not members of the association we are considered "strangers"?

Correct. For purposes of HOA common element. You have no right to it without an easement.

Gentle Reminder: Please, use SEND button to keep chatting, or PLEASE SELECT THREE OR MORE STARS and click FINISH to submit your rating when we are finished. You may always ask follow ups at no charge after rating.

Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 103,212
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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