New State Bar of Texas Blog for Lawyers Handling HOA Issues

The information age has definitely impacted the practice of law. Among the many benefits the internet offers to lawyers, is the ability to exchange ideas and information with other attorneys with similar practices, irrespective of your proximity, and even if you've never met. A perfect example is a new private, subscriber-based BLOG called "Property Owner Association Lawyers."

The blog was created by a Ft. Worth lawyer utilizing the "TexasBar Circle" program sponsored by the State Bar of Texas. She describes the blog -- which is restricted and private -- "A place for lawyers who represent or create property owner associations (including condos!) in Texas to meet and discuss issues."

As a Texas lawyer who represents Homeowners Association members (owners of property located in communities with HOAs), and Associations, themselves, I am excited about the possibilities of the new blog.

My Divorce Decree has been signed by the Judge, is there anything else I should be doing?

Yes. After the Divorce Decree is signed the Divorce is over, right? Not necessarily. Some of the most important things occur after the Decree is signed and the divorce has been granted. This is when real property transfers are made – such as a Special Warranty Deeds or Deeds of Trusts to Secure an Assumption. This is also when a Qualified Domestic Relations Order, Child Support Wage Withholding Order, and other collateral orders need to be prepared and signed by the Judge if these have not yet been completed. If you are the recipient of child support, you should also think about getting a file opened with the Texas Office of the Attorney General (OAG) in case your Obligor spouse falls behind in his or her child support. Sometimes it is necessary to think about the transfer of personal property, the payment of attorney’s fees, preparation of federal income taxes, the transfer of personal items, cash payments that may have been ordered, and the transfer of other items such as family photographs and other things of sentimental value that may need to be shared. Finally, this is also a good time to consider updating your wills and other estate planning documents.

Adverse Possession under the Three-Year Statute

This blog entry is the second of a series related to adverse possession. Adverse possession is a legal principle under which someone can acquire ownership of real property that belongs to someone else. It is a form of “involuntary conveyance.”

The shortest period for a claimant to assert adverse possession over real property under Texas law is three (3) years. In order to qualify for adverse possession under Section 16.024 of the Texas Civil Practice and Remedies Code, the claimant must:

* actually and visibly appropriate the property (in other words, take possession of the property in such a way that it is open and obvious);

* possess the property in a manner that consistently and unmistakably indicates the claimant asserts exclusive ownership to the property;

* use or possess the property peacefully, but without the owner’s permission (in other words, scaring the owner off with a shotgun is not allowed); and

* hold the property under title or “color of title.”

The key to the three year statute for adverse possession is the final factor listed above. In other words, the claimant must have received (1) a deed or other document reflecting title to the property, but his title is considered “irregular” because there is a document that is missing or has not been properly recorded, or (2) an unusual document, such as a certificate of headright, land warrant, or land scrip.

If all of these three things occur, the statute requires that the true owner to the property take action by bringing a lawsuit to recover the property within three years from the date that the claimant first enters the property, or else he will lose his ownership rights. In actuality, however, a title insurance company or buyer will likely request that the claimant sue the rightful owner or presumed owners and obtain a judgment reflecting title through adverse possession before they will agree to purchase the property from the adverse claimant.

There are several other statutes in the State of Texas which describe what factors must occur before a claimant can obtain title through adverse possession. As a result, adverse possession is a complex legal issue, and we strongly suggest that you seek the advice of an attorney (preferably someone versed in the litigation process, as well as real estate law) if you are confronted with either the need to assert or defend against a claim of adverse possession.

Understanding the "Due on Sale" Clause in Texas Deeds of Trust

Many times in today's economy, homeowners will desire to sell their properties to buyers who are unable to qualify for financing through a mortgage loan. Among the factors that contribute to a prospective Buyer's inability to obtain the loan are creditworthiness, tight capital markets, and low appraisal on the property to be bought/sold. Irrespective of the reason, the absence of a mortgage lender presents unique challenges to the Seller and the Buyer. The most common solution to these challenges is some form of Owner Financing.

However, many of the historically-common mechanisms for Owner Financing have come under strict scrutiny by the Texas Legislature and Courts. The most significant of the Legislature's "reforms" are contained in Chapter 5 Texas Property Code which makes lease purchase or rent-to-own agreements very tough. Investors and other sellers intent on making the sale to Buyers who can't get financing tend to favor "wrap-around mortgages." However, utilizing this mechanism may present unreasonable risks to the new Buyer and sometimes even the Seller (who was the original Buyer/borrower under a still-existing mortgage note.

The biggest problem with utilizing a wrap-around mortgage -- a mortgage from the Seller to the new Buyer under which the Seller's underlying mortgage (the first one, held by the original lender) is not being paid off at closing -- is the "due on sale clause" contained in the Deed of Trust associated with the underlying/first mortgage.

The following is a fairly typical DUE ON SALE CLAUSE found in a Texas Deed of Trust:

"If Grantor [Borrower] transfers any part of the Property without Lender’s prior written consent, Lender may declare the debt secured by this deed of trust immediately payable and invoke any remedies provided in this deed of trust for default. If the Property is residential real property containing fewer than five dwelling units or a residential manufactured home occupied by Grantor [Borrower], exceptions to this provision are limited to (a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the Property; (b) creation of a purchase-money security interest for household appliances; (c) transfer by devise, descent, or operation of law on the death of a co-Grantor; (d) grant of a leasehold interest of three years or less without an option to purchase; (e) transfer to a spouse or children of Grantor or between co-Grantors; (f) transfer to a relative of Grantor on Grantor’s death; and (g) transfer to an inter vivos trust in which Grantor is and remains a beneficiary and occupant of the Property."

In plain English, a "Due on Sale" clause like the one above means that in the event that ownership of the property is transferred from the original Buyer (now acting as Seller) the original lender may accelerate its note or "call the note" due in full.

Under a "wrap-around mortgage" the first/underlying mortgage is still in the Seller’s name and monthly payments must still be made to the original lender as if the sale to the new Buyer never occured. If there is a default in those payments or if the first lender accelerates the note, then that lender could foreclose on the property, causing a dominoe effect under which the new Seller’s wraparound mortgage is invalidated or simply pre-empted and the new Buyer loses any and all ownership interest in the property as well as whatever monies he or she has paid against the wrap-around mortgage.

As a Texas lawyer with an active real estate litigation practice, I've seen many wrap-around mortgage situations go sideways. This occurs most frequently in 2 situations:

1. When the new Buyer defaults in payments, causing the Seller to default on his/her mortgage. This frequently results in a foreclosure that ends-up on the new Seller's credit. Sometimes the Seller is even stuck with a deficiency judgment.

2. When the new Buyer timely pays all monthly payments but the Seller (or more likely a middleman "investor") fails to remit those payments to the original mortgage lender. This can result in a foreclosure without notice to the new Buyer (even though he is timely paying everything he is supposed to pay) because the original mortgage lender isn't even aware of that person's existence, much less their claim to an ownership interest in the property.

Wrap-around mortgages, due-on-sale clauses, and other owner-financing mechanisms are complex and highly regulated by the Texas Property Code and the Courts. Buyers and Sellers considering entering into an arrangement that impicates "executory contracts" should ALWAYS obtain the review and advice of separate real estate lawyers. Your home and your credit are far too valuable to leave to chance and/or to negotiate "under the radar."

Guilty Plea Entered in Texas Mortgage Fraud Scheme

HOUSTON — Grant William Gondrezick, 45, has pleaded guilty to conspiring to commit wire fraud, United States Attorney Tim Johnson announced today. Gondrezick pleaded guilty before U.S. District Judge Melinda Harmon. Sentencing is set for Dec. 4, 2009, when he faces up to five years in prison, a fine of up to $250,000 and up to $1.9 million in restitution.

According to the factual basis in Gondrezick’s plea agreement, Gondrezick engaged in a mortgage fraud scheme between November 2004 and May 2005 that involved the sale of 24 homes, most of which were in Montgomery County, Texas. Gondrezick recruited straw buyers who entered sales contracts for homes which stated that substantial amounts (typically between $80,000 and $100,000) were going to be taken out of the seller’s proceeds at closing and sent to one of Gondrezick’s contracting companies for home improvements. These amounts were added to the asking price of the homes though neither the seller nor the nominee buyer asked for the improvements or hired Gondrezick’s company. Gondrezick submitted invoices to the title companies in these amounts to justify the third-party disbursements, claiming that custom renovations or home theater work had been performed. In fact, no such work was performed. Because the nominee buyers never planned to live in the homes, the buyer never complained about the lack of renovations which had been paid out of the closing. Gondrezick received approximately $1.9 million in these disbursements out of the loan proceeds which totaled approximately $10 million.

Gondrezick further admitted that the straw buyers were paid to participate in this scheme and that the loan applications contained false information relating to the buyers income, employment, assets and intent to occupy the homes.

Co-defendants Tiffany Brooks, who worked as a loan processor, Dirk Minnifield, a realtor, and Marc Jason Williams, who worked with Brooks as a loan processor, are also charged for their alleged involvement in this scheme and are scheduled for a Feb. 1, 2010, trial.

Calculating the Landlord's Damages When Premises Are Re-Let after Tenant Breach

When a Tenant breaches a lease agreement by terminating or abandoning the Lease, or when a Landlord is required to terminate based upon some act or omission of the Tenant, the Landlord faces a two-sided problem: First, he or she has vacant rental property and has likely suffered damages as the result of lost rents in the past. Second, the landlord will likely suffer loss of rental proceeds in the future, all the while incurring costs associated with owning and managing the now-vacant property.

As I have previously discussed on this blog, a Landlord has a statutory obligation to mitigate the damages he suffers as the result of a Tenant's actions. See TEX. PROP. CODE ANN. § 91.006. The duty to mitigate losses or damages is usually interpreted as a requirement that the Landlord attempts to re-let the premises vacated by the original Tenant.

Many times after a breach, the condition of the premises or the overall rental climate (supply and demand) can be markedly different than it was at the time the original Tenant first occupied the property. This can result in substantial difficulty in finding a replacement Tenant. Nevertheless, a Landlord is required to use reasonable efforts to find a replacement Tenant, even if the rental proceeds from that new Tenant are less than those that would have been received had the original Tenant fulfilled her Lease obligations.

In those instances where a deficiency exists between the rent received from a replacement Tenant and the rent agreed-to by the original Tenant, a Landlord is entitled to recovery of his damages. Other elements of the Landlord's damages are the costs of re-letting the property (advertising, repairs, make-ready, Realtor commissions, modifications required by the replacement Tenant, etc), and any rents not received between the time that the original Tenant vacates and the replacement Tenant takes possession.

So...how does a Landlord calculate the measure of damages resulting from a Tenant's breach?

Consistent with its statutorily-imposed duty to mitigate, a Landlord seeking damages for anticipatory breach of a Lease Agreement must prove the present value of the future rentals under the unexpired term of the lease, REDUCED BY either the reasonable value of re-renting the leased premises or the rent paid by any new tenant. See Marshall v. Telecomm. Specialists, Inc., 806 S.W.2d 904, 907 (Tex. App.—Houston [1st Dist.] 1991, no writ).

That is, if a Landlord is able to re-let the premises at the same or more rent than the original Tenant agreed to pay, then the original Tenant is only required to pay the costs of re-letting. On the other hand, when a Landlord rents the premises for less rent, the Tenant is required to pay the re-letting costs PLUS the Landlord's shortfall over the term of the original Lease Agreement. see also Crabtree v. Southmark Commercial Mgmt., 704 S.W.2d 478, 480 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (limiting damages sought by landlord who treated tenant’s conduct as anticipatory breach to recovery of present value of rentals that accrue, reduced by reasonable cash-market value of unexpired term of lease); Speedee Mart, Inc. v. Stovall, 664 S.W.2d 174, 177 (Tex. App.—Amarillo 1983, no writ)(holding that landlord who treated tenant’s conduct as anticipatory breach could recover contractual rental reduced by amount received from new tenant).

Many Lease Agreements in Texas (and the standard Commercial Lease Form in New York) purport to make the Tenant responsible for all rental proceeds that he or she did not pay, irrespective of whether the Landlord re-lets the property in the future. These provisions are generally not enforceable in Texas, where the Landlord's efforst to mitigate his losses are often the subject of intense scrutiny in lawsuits advanced for recovery of lost rents.

Understanding CAM Charges in the Commercial Lease Context

Common Area Maintenance Charges or "CAM" have become a fixture on the landscape of Commercial Lease Agreements pertaining to strip centers, enclosed malls and other multi-unit/multi-tenant real estate developments. CAM charges are generally defined as the amount of additional rent charged to a tenant (in addition to the base rent), to maintain the common areas of the property shared by all tenants and from which all tenants benefit. However, there exists significant variation in the types of expenses Landlords seek to include in CAM charges, with many such expenses less obvious and less beneficial to any particular Tenant than one might expect.

CAM charges are generally prescribed by specific provisions in Commercial Lease Agreements, and the Lease terms will define the items to be included in calculating the Tenant's CAM obligations. Thus, an agreement to pay CAM charges is contractual in nature, and one of the essential elements of a Lease Agreement.

As stated above, CAM fees vary considerably and cover a wide range of expenses landlords would otherwise pay. They typically include taxes, insurance, property maintenance, repairs, cleaning costs, utility charges and landcaping associated with the area surrounding the leased premises. However, they might also include more latent items such as security systems and patrols, depreciation on capital expense items, salaries of administrative staff who run the development, non-tenant signage, and even the Landlord's corporate overhead expenses that are un-related to the property.

CAM charges can be assessed and paid monthly, quarterly, annually, or even charged from time-to-time as major expenses are incurred by the landlord.

It is particularly important that both the Landlord and Commercial Tenant have a thorough understanding of what charges are (and are not) included in CAM Charges PRIOR TO entering a Commercial Lease Agreement.

Court challenges to CAM fees are common, and often arise from nebulous definitions of CAM charges in a Lease Agreement. In a highly publcized case currently pending in federal court in Austin, Dillard's department store and the owner of the Highland Mall are feuding over whether Dillard's was improperly charged for, among other CAM items, "the cost of maintenance and housekeeping for the food court of the mall." This case presents an interesting example of the different perspectives landlords and Tenants have concerning proper CAM expenses.

The Texas Property Code recognizes the potential for wide confusion over what charges may be assessed against a Commercial Tenant. Thus, Section 93.012 expressly limits charges to tenants (other than a charge for rent or physical damage) to those whose amounts or method of computation are stated in the lease.

Landlords and Tenants are encouraged to engage in frank discussion and transparency when negotiating Commercial Lease Agreements that provide for CAM charges. Further, all such Leases should include provsions allowing independent audit of the CAM charges.

CAM issues are complex and are fertile ground for dispute and even litigation. Accordingly, a prudent Landlord and Tenant should enagage the assistance of a real estate attorney who is experienced in interpreting Commercial Lease Agreements and the CAM charges to be assessed under those Leases.

Landlord's Remedies When Tenants Abandon Leased Premises

As a real estate lawyer in San Antonio, I am frequently asked about a Landlord's options upon learning that a Tenant has moved-out without notice, or who simply abandoned the leased premises before a lease ends. The Texas Supreme Court has recognized four distict causes of action that a landlord may assert against a tenant who breaches a lease by abandoning the premises:

(1) maintain the lease and sue for rent as it becomes due;
(2) treat the breach as an anticipatory repudiation, repossess, and sue for the present value of future rentals reduced by the reasonable cash market value of the property for the remainder of the lease term;
(3)treat the breach as anticipatory, repossess, re-lease the property to a new tenant, and sue the original tenant for the difference between the contractual rent and the amount received from the new tenant; or
(4) declare the lease forfeited (if the lease so provides)and relieve the tenant of liability for future rent.

See Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 300 (Tex. 1997).

However, it is important to remember that a landlord has a duty to mitigate its losses/damages when a tenant abandons the leased premises and stops paying rent. Id., at 295–300. This principle recognizes that a landlord who claims anticipatory breach has a duty to mitigate because the landlord’s claim is contractual in nature. Id. at 300.

Further, the Texas Legislature has codified the landlord’s duty to mitigate as section 91.006 of the Property Code. See TEX.PROP.CODE ANN.§ 91.006 (Vernon 2007). That same section prohibits, and makes "void," lease terms that attempt to exempt a landlord from a liability or duty to mitigate its losses. Id.

San Antonio retail market vacancy on the rise

After being hit earlier this year with the closures of national retailers such as Circuit City, Mervyn’s and Linens N’ Things, the faltering economy continued to impact the local retail market over the past three months.

Sportsman’s Warehouse vacated its 47,000-sf location at The Legacy after having closed the location at Westover Marketplace last year.

According to the survey of nearly 44.5 million sf of area retail space conducted by NAI REOC Partners, the San Antonio retail vacancy rate climbed to 14.5 percent at the close of second quarter 2009, which is a marked increase from the 11.4 percent vacancy rate recorded a year ago.

The market grew by more than 3.5 million sf last year, but less than 849,000 sf of new retail space has been delivered to the area in the first half of the year with less than 250,000 sf expected to come online by year’s end.

In 2Q 2009, nearly 677,000 sf of new retail space came online led by the addition of Woodlake Crossing (305,231 sf) featuring Target, Ross Dress for Less, PetCo, Best Buy and several others.

Aside from the gains produced in the newly completed centers, activity within existing centers overall remains relatively slow, but leases are still being signed. Renewals and extensions led second quarter activity including Big Lots (29,875 sf) at Bandera Festival.

The impact of higher-priced new projects floated up average rental rates and now that the market is feeling the impact of a sluggish economy, quoted rental rates have begun to reflect the downturn. At the close of 2Q 2009, the citywide average quoted triple net rental rate for retail space in San Antonio inched up to $18.33 per sf annually.

Compared to a year ago, the average rent is up $0.86, a 4.9 percent increase, but the $0.10 gain over last quarter registers a growth rate of less than 1 percent.

From the TAMREC

DA Watch: El Paso District Attorney Investigates Potential Jurors Including Expunged Records

Over in El Paso, the district attorney's office is using its government databases to investigate ordinary citizens who show up for jury duty -- including going through past records that the citizens may believe to be secret or expunged.

And they're not telling the defense attorneys about this, at least they haven't been until they were caught doing this recently. Of course the defense bar is calling foul here.

What is an expunged record?

When someone pays to have their record "expunged," then they are taking action to have their record cleared of something -- an arrest, etc. -- and they believe that the expungement removes all trace of that particular event.

And it does. Public records do not provide any reference to something that has been expunged.

However, in the government databases, the expungement can remain these days -- all because of modern technology. The expungement is stored on the governmental records, archived in a database somewhere instead of the old school method of physically removing a file from the filing cabinet, stamping it "expunged," and either destroying it or sealing it in a box for storage offsite.

Where's the unfairness? First, it's unfair to the citizen whose record was expunged.

The first unfairness is to the citizen whose record has been expunged. An expunged record should mean that there has been a destruction of the event. For example, someone who is innocent was arrested for a crime. Three days later, the true evildoer was found.

It is blatantly unfair for that erroneous arrest to follow the innocent person into his or her future, tainting their personal and professional reputations. The mere reference to an arrest might cost them a job, for example. So, an expungement occurs.

The citizen believes that the horror of that event is gone and forgotten. But not with the El Paso District Attorney's office, apparently. They'll use the governmental databases and they'll look up that faulty arrest. All because the citizen has done his civic duty and shown up for jury duty.

That's not right. That's unfair.

It's also unfair to the valid and full defense of the current criminal defendant.

Remember now: the El Paso district attorney's office can access a national crime database -- just like any government prosecutor in this country -- and here, there's an unabridged listing of arrests and convictions that have been expunged from the public records.

Meanwhile, the defense attorney can only have access to the public records, not the SuperSecret national crime database.

So, the defense attorney is hampered in choosing a jury because the prosecutor is privy to information that the defense attorney is not. This is not the way that the jury selection process is supposed to occur.

What if the defendant going to trial is arguing that he was wrongfully arrested? We all know that the district attorney is going to strike the man or woman from the jury pool who they know from their SuperSecret database has an expunged record of a wrongful arrest. The prosecutor won't want that citizen on the jury, he (or she) may side with the defendant.

Which is exactly why the defense WILL argue for that citizen to be on the jury. And why this prosecutorial tactic is blatantly wrong.

Is this happening in places other than El Paso?

Sure it is. That governmental database is national in scope, and it would be absurd to think that only the El Paso district attorney's office is sniffing around its archieved expungements.

The Happy Fork vs. The HOA vs. Free Speech...by Tanji Patton

Could the ongoing saga of the fork, the ugly wall and the angry homeowners association get any more bizarre!

Apparently....YES. Well known San Antonio artist Gilbert Duran tells me he's filed a complaint with the American Civil Liberties Union alleging his right to freedom of expression and the rights of the homeowners are being trampled by the Stone Oak Homeowners Association. This gets really interesting - colorful civil rights attorney Gerry Goldstein has been contacted by the restaurant owner/chef to enter the fracas.

You've heard the story--culinary artist/chef Damien Watel commissions well known San Antonio artist Gilbert Duran to create a sculpture in front of his new restaurants Ciel and Ciao 2 on Stone Oak Parkway. The Stone Oak Home Owners Association cries foul, and now a 14 foot tall eyesore-of-a-wall covers the artist's creation.

Wow...what a mess! I don't live in Stone Oak, so I can't say how I'd feel as a neighbor, but let's look at the big picture. Damiel Watel is an incredibly well respected chef and restaurant operator who most landlords and neighborhoods would welcome with open arms.

A successful business creates energy and often opens the door for more successful businesses where it locates. Then, there's the revenue generated with property taxes, sales taxes...etc. A good business is good for business!

To please the HOA, Watel doled out about $8,000 to erect the wall to cover the sculpture. Yet, nobody appears to be happy here.

My sympathies, so far, lie with Damien...unless someone can convince me otherwise. In fact, I think I'll have dinner there this weekend.

By Tanji Patton

Absurdity in Dallas -- HOA Tangles with U.S. Marine over Semper Fi Stickers

Frank Larison is a disabled veteran with more than 14 years of service, including more than a year of combat duty in Vietnam. The 58-year-old former Marine now finds himself under attack by his Dallas homeowners association for displaying seven decals on his vehicle supporting the Marine Corps. "To me, it's being patriotic, and it shows that I served," the veteran told FOX 4. The board says the decals are advertisements that violate HOA rules, and must be covered or removed. Otherwise, the homeowners association for The Woodlands II on The Creek —- where Larimore has lived for eight years —- says in a letter it will tow the car at Larimore's expense. The board also threatens to fine him $50 for any future incident.

Here's the story from Fox 4 in Dallas:


In my opinion, this is an outrage! I hope this HOA President is promptly removed from office by the residents of her condo community. Semper Fi, Mr. Larison. Thank you for your service!

Deed Restrictions -- They Aren't Always Forever !

Many, many homwoners who are disgruntled with a neighbor or with their own HOA underestimate the importance of closely reading applicable deed restrictions (CC&R's). I'm always amazed at the number of people seeking legal representation against their HOA, but who don't even have a copy of their CCRs or Association By-laws.

That's right. That small type-face, fuzzy, packet you were given at the closing upon your home is importance. Too many times, homeowners either glance over the restrictions just once at closing, or never bother to look at them at all. They then get filed away, or thrown away, with little thought. This is a mistake, though,m because the restrictions can carry tremendous implications for property values, neighnborhood regulation, and assessing the authority of your HOA Board.

In some cases, we have determined that particular CCRs have expired, or that some mandatory condition required to give them continuing force has never occured. In those instances, the restrictions are usually legal nullities that cannot be enforced. When serving as lawyers representing owners against their HOA, a discovery that the CCRs are non-enforceable is a powerful weapon that almost always carries the day. However, the absence of restrictions/covenants cuts both ways, and can carry several negative implications for all property owners in a given development.

Determining the Effectiveness of CCRs:

Covenants/Restrictions are placed upon subdivisions by the original developers who plat them. Those developers then go about selling individual lots to future residents, or selling the enitire development to a homebuilder who then builds homes upon the lots and re-sells them, individually. In either instance, the developer is often long-gone before the subdivision is fully built-out and occupied. Ususally, he's gone-on to develop his next subdivision.

The restrictions enacted by the developer often have expiration dates 20 to 30 years after they are adopted. Those CCRs may also contain procedures to transfer control of the subdivision to a Homeowner's Association (HOA). In those instances, the HOA becomes the "enforcer" of the CCRs. However, unless there is some action taken to extend them, the CCRs still expire.

In other cases, an HOA is never formed, is improperly formed, or is formed before power to enforce the restrictions is properly transferred away from the developer (or his successor). Each of these situations may result in an inability to enforce restrictions.

Good and Bad:

Like all institutions, HOAs have good and bad aspects. Homeowners seem to enjoy the stewardship of HOAs who clean community pools, keep gates in good working order, erect Christmas lights, and prevent cell phone towers from being erected in enighborhoods. But, when the HOA spirals out of control on issues like yard watering, car bumper stickers, backyard swingsets and the like, they can be downright nasty.

In the end, well thought-out, equally-enforced restrictions probably benefit all owners of lots within a given subdivision because they promote uniformity, land-use integrity, and the common interest in preserving home values.

If faced with a dilemna regarding enforceability of CCRS, one should start with a good reading/review of the restrictions, including any expiration dates. When in doubt, contact a lawyer with experience in HOA law, including interpretating and litigating restrictions. A strong HOA lawyer can be an invaluable asset in understanding your rights and responsibilities within the context of community living and community associations.