Homeowner's associations can be benevolent stewards of a community's swimming pool or they can transform into fiefdoms bent on control. For the sake of keeping property values aloft in neighborhoods such as Shavano Ridge, restrictive covenants and HOAs are homogenizing communities into bland, and often menacing places to live.
A battle over
conformity is brewing in Shavano Ridge - and in many American suburbs
At 3:30 in the morning, Bill Beverly, a trim man with a back as straight as a flagpole, runs three miles through his Shavano Ridge subdivision, patrolling the neighborhood for strangers, unfamiliar cars, and teenage pranksters.
Later in the day, Beverly, the secretary of the Shavano Ridge Homeowners' Association Board of Directors, also notes who among the 250 residents is violating the deed restrictions placed on their homes: houses painted the wrong color, trailers parked in driveways, weeds untended along fence lines.
"We have a vision," says Beverly, an Army retiree and a member of the HOA's Architectural Control Committee. "We're trying to preserve the neighborhood. We don't want to live with bars on the windows. We have to compete with more expensive neighborhoods. We have to keep our guard up."
No home in Shavano Ridge has burglar bars, but several residents say they've been robbed - of their private property rights, due process, and individuality - by the Homeowners' Association Board and the Architectural Control Committee, whose members stroll the neighborhood looking for violators.
These complaints aren't limited to Shavano Ridge: Although a 1999 Gallup poll showed that 75% of residents surveyed said they were "very satisfied" with their subdivisions, many residents in planned communities claim their homeowners' associations have become fiefdoms. Some HOAs, critics say, use the pretense of maintaining property values to justify arbitrarily threatening and suing residents for real or imaginary infractions, even foreclosing on their homes, in some cases.
are backed by the Community Associations Institute, a national trade and
lobbying group that oversees master-planned communities. Within their
subdivisions, HOAs carry the authority of governments but bear little of the
accountability. Consequently, these power plays are transforming suburban
America - home to 50 million people in 250,000 planned communities - into a
lifestyle more Orwellian than Utopian.
Dorian and Mary MacDougall moved to San Antonio from Los Angeles in 1994. To live close to the University of Texas Health Science Center, where Mary MacDougall works, they purchased a 3,200-square-foot house in Shavano Ridge, a Centex development off DeZavala Road. At the closing, MacDougall noted that the house came with Centex's "Covenants, Conditions, and Restrictions," rules that dictate how a home can be modified. They are common in condominiums and cooperatives where residents share walls, but, MacDougall says, "I had never seen them on single-family homes."
The Centex salesman reportedly reassured the MacDougalls the CC&Rs were minor. "He said, 'It's nothing. Don't worry about it. It's just if you want to make any additions you have to get permission,'" Dorian MacDougall recalls.
That seemed to be the case until April 2000, when MacDougall repainted the yellowish trim and siding of his red brick house with the color Palomino - a shade of pale orange, akin to sherbet.
In October, the ACC announced in the neighborhood newsletter that it was creating standards for repainting homes. In December, MacDougall received a letter from Association Management Services, a local company that sends violation notices on behalf of its 130 HOAs, including Shavano Ridge. The letter stated MacDougall had violated the subdivision's deed restrictions by failing to ask the ACC's permission to repaint his home; nor was the color he chose approved for Shavano Ridge. He was given a year to repaint, although in February 2001 he received a two-year extension.
MacDougall's "orange" house, as it's become known, upset some residents, even those who had never seen it. "Fortunately, his [MacDougall's] house is in a cul-de-sac in the corner," says Bill Beverly. "I had residents calling saying that they had either heard of or had seen the orange house."
In January 2003, 11 months before the repainting deadline, MacDougall received another letter from Association Management Services, threatening to sue him if he did not repaint in 30 days. But in February, the HOA reversed itself, and MacDougall received another letter rescinding the lawsuit.
(Beverly says the HOA's attorney erroneously sent the intent-to-sue letter and that "he's no longer our lawyer.")
In December 2003, the MacDougalls presented to the ACC additional color choices including Roasted Cashew, Indian Peach, Light Topaz, Palomino, and Sweet Potato. All were rejected because, the ACC ruled, homes must be painted in the "color of the original building scheme or any Shavano Ridge home which was the original paint color of the the original contractor."
"I asked them to reveal the standard Shavano Ridge paint colors, but the board refused," MacDougall says. "When asked for color suggestions, 'white' was all they could say."
Centex Design Center confirmed that there are no - and never have been - standard colors for Shavano Ridge. "Even if we did have a standard list, they would have changed anyway. Many colors are discontinued," says Centex's Truth Camino.
Although the Community Association Institute recommends that HOA boards keep a book of paint samples and brands, Shavano Ridge has none. Without any guidelines, the MacDougalls submitted more colors to the ACC: Stucco, Gothic Tan, Autumn Morn, Kiva Glow, and Pale Copper. The ACC approved three, with the caveat that it would still have to OK the final color. In January, the MacDougalls painted their home Autumn Morn.
"He repainted," Beverly says, "and the paint just got darker. It's still orange. But he abided by rules."
At the heart of this four-year dispute, Beverly says, is that the MacDougalls didn't adhere to the CC&R clause stating that no alteration can be made to a building without ACC approval, although the clause doesn't specify paint. The same lawyer whom the board later fired decided that repainting was an alteration included in the CC&Rs. "You can make, or you even have a duty to, make him repaint," reads a letter from the attorney to the board.
Furthermore, Beverly points out that the CC&Rs allow the board to "interpret" the deed restrictions provided by the developer, giving it and the ACC wide berth in determining what is appropriate for Shavano Ridge.
is selective enforcement to go after certain people," says MacDougall,
who spent $2,000 to repaint his home. "I still don't know what the
Shavano Ridge paint scheme is."
On a tour of Shavano Ridge one afternoon, a house on the corner stands out. The resident has defiantly jammed a pink flamingo in front of a bush.
Another resident has installed vents in his garage door; neighbors complain they are ugly. One home has navy blue shutters; neighbors think they're inappropriate. "People move here knowing there are CC&Rs," Beverly says. "We're just trying to get people to do the right thing. Lots of problems are resolved without letters."
In a cul-de-sac, Beverly gazes at a house where the owner buried several dead kittens in his front yard, then posted a small cross on the gravesite. Neighbors called Beverly to gripe that the cross was "tacky and ugly," and that it must be "illegal to have a cemetery in your front yard." The board intervened; the homeowner removed the cross, but laid it on the grave."
If we didn't have CC&Rs, there's no way to get them to remove it," MacDougall says.
Beverly contends the board is flexible, allowing homeowners to use composite material to replace siding and to install iron gates. But some residents see this "flexibility" as an arbitrary application of the rules.
For example, at Pat Roberts' house, a small, collapsible trailer covered with a clean, gray tarp is almost hidden behind a newer model truck. Across the street, four cars with dirty, light blue tarps sit in the driveway. The Roberts have received at least three letters citing them for the trailer, which according to the CC&Rs, is illegal to have in view from the street. "The Roberts say the trailer is less visually disturbing," Beverly says. "But he [the car owner] is following the covenants. The Roberts just need to build a picket fence to hide their trailer."
Roberts says she plans to build the fence, "although frankly, I can't afford it. "Some people are allowed to do things," she notes, adding that a man down the street was scolded for using six-inch boards on his fence instead of four-inch boards. "We have retired military here who think it's a military base and think it should look like one - bland."
Before moving to San Antonio, Roberts lived near Waco in a subdivision without an HOA. "I had the first house with yellow trim," she recalls. "The subdivision looked fine. Everyone kept their house neat and tidy."
Shavano Ridge resident Ken Tackett also has clashed with the board and the ACC. He says that after he installed solar panels on the back of his house to heat his swimming pool, the board threatened to put a lien on his property if he didn't remove them. The board later backed down. When Tackett repainted his garage using the house's original color of paint from the original can (although it was several years old), an ACC member told him the color wasn't appropriate and didn't match, and demanded to know when it would be repainted. "
Personally, they've taken it too far from the purpose of keeping the neighborhood in decent shape and keeping people from parking cars in their front yard.
not like this everywhere," Tackett adds. His parents, who have freely
repainted their home, live in the High Country subdivision, he says, and
"no one has fussed in 25 years. The subdivision looks as good as
Homebuyers who purchase in planned communities automatically become HOA members, pay dues, and must abide by the CC&Rs. For Centex or any builder to include CC&Rs in its developments and for a board to charge homeowners' dues, the community must have common areas such as swimming pools, tennis courts, or clubhouses. At Shavano Ridge, $132 a year buys a common area that is merely a median at the subdivision entrance and a few strips of grass. The dues also pay for other services, including directories, board members' insurance, and legal fees. "You're paying dues to sue yourself," says MacDougall.
From six months to one year after Centex closed on the last home, it left the subdivision's management to an HOA, whose board is charged with enforcing the CC&Rs and permanently maintaining the conformity and harmony of the subdivision.
The CC&Rs, says James Espinar of Centex, "keep up the aesthetic and property values. We keep things as simple as possible: neutral, standard, with a vision of how the development would materialize."
"Pretty strange things happen even in middle-class neighborhoods," says Beverly, referring to a Muslim family that had goats and chickens in the back yard. "We're seeing neighbors doing things that have never been done before."
Shavano Ridge HOA board members are elected to three-year terms, but many have served for a decade. "We can't get anyone to run," says Beverly, citing the board's extensive duties, including organizing welcome packets, monitoring groundskeepers, organizing events, and filing "decision paper," that show the board's rationale on their rulings. "We cajole people to run. Not our people, any people. The only reason I stay is the board needs institutional memory."
Beverly maintains that the HOA board and ACC are a "democratic organization, no different from Congress. We attempt to represent the community."
But it could be argued that the board, while functioning as a quasi-government, isn't democratic. First, it simultaneously occupies the legislative, judicial, and executive branches without oversight. Secondly, the elections are suspect. Since so few people vote (or even attend the monthly meetings), the board issues proxies. A resident receives a ballot and either fills in their candidate's name or leaves it blank. If the resident doesn't name a candidate, the block captain can take the proxy and vote for whomever he or she wants.
often don't know who these candidates are and say, 'Vote for me,'"
Beverly says. "Silence is consent."
The Community Associations Institute started in 1973 as an educational resource for homeowners associations, whose numbers increased as demand grew for suburban housing. "We exist to promote harmony and reduce conflict in associations," says Frank Rathbun, CAI media spokesperson. "The biggest challenge in HOAs is related to balancing the right of the homeowner with the best interests of the community as a whole."
But critics, including attorney Evan McKenzie, author of Privatopia, contend the CAI has transformed into a lobbying organization for its membership: HOAs, real estate groups, builders, attorneys, and management companies, many of whom profit from the disputes between HOAs and residents.
The Shavano Ridge development pays $230 annually to be a CAI member. In turn, members can receive training or information from more than 100 publications about running an HOA, including a subscription to Common Ground, the bimonthly CAI magazine. In the January issue, the lead story provided hints about dealing with change: "Change is strange. It is disorienting, unsettling, and sometimes a little threatening. But laced with the scent of forbidden fruit, change is also irrestible. It's a pageant of inspiration, a sideshow of possiblities, a freak show of dreams." (But apparently change doesn't mean palomino house paint or pink flamingos.)
The CAI's Legislative Action Committee pushes for laws favorable to its well-moneyed members. In Texas, Connie Heyer is the lead lobbyist, with retired Senator Buster Brown and Association Management Services' Barbara Lowry as part of the lobbying team. In Heyer's report on the 78th legislature, she wrote: "Not one bill that adversely affects homeowners' associations or their members passed. The CAI successfully amended bills or worked toward killing bills that could have been harmful to our industry."
Those killed bills included HB 1641, which would have required HOAs to send violations in English and Spanish. It would have subjected HOAs to the Open Meetings Act, which the CAI characterized as "a complicated set of government regulations."
The CAI also shot down SB 949, saying it would have been "most harmful" and "given members unlimited access to records for any purpose including harassing volunteer board members or board managers."
Rob Edwards, legislative aide to State Senator Jon Lindsay, who authored SB 949, argues the measure would have "leveled the playing field for homeowners." One of the bill's provisions would have prohibited HOAs from filing liens and foreclosing on homes without a judge. That happened to Houston resident Winona Blevins, who inspired the bill. Her HOA foreclosed on her home for $800 in late homeowners' dues, then sold it and evicted her. She sued, got back her home, plus $300,000 in damages.
In San Antonio, Stone Oak resident Richard Craig owed $60 in dues and another $30 in late fees when his homeowner association threatened to put a lien on his home. "It was extortion," he says. "I was livid. But I said, 'Let's pay this.'"
"HOAs can do that," Edwards says. "They're driven by a cottage industry of management companies and attorneys, who will be hurt if the law changes."
Instead of solving problems neighbor-to-neighbor, some Shavano Ridge residents use the HOA to do their dirty work. "That's why we have to have an HOA, so people don't have to get into confrontations with neighbors," says Beverly.
But this lack of communication has engendered hostility and suspicion. Residents rarely attend HOA meetings, and no common area exists for interaction - the essence of community. (Beverly notes the subdivision has won six awards for the City's National Night Out, an event that "fosters socialization.")
Ironically, Shavano Ridge's common area has developed in cyberspace. MacDougall's website (http://home.satx.rr.com/usrw) logs opinions on the HOA issue, ranging from pro-board sentiments lauding members for their hard work, to anti-MacDougall comments - "You stick out like a sore thumb!" typed in all capital letters - to anti-HOA comments: "Board members wish to impose an ugly conformity on the rest of us. There are too many petty-minded busy bodies who seem to have too much time on their hands."
Beverly has placed the CC&Rs on the Shavano Ridge site, (www.neighborhoodlink.com/sat/shavano), but hasn't opened a chatroom. "I've been advised not to," he says. "It creates dissent and problems. They can voice complaints by coming to us in a respectful manner."
comment illustrates the tension in Shavano Ridge, as the writer complains
about the disrespect a neighbor received at a board meeting. "If there is
that much disrespect towards each other, I no longer care what happens to my
©San Antonio Current 2004
©San Antonio Current 2004
More Woes Afflicting Residents
By Lisa Sorg
After Stone Oak resident Richard Craig received notice that his homeowners' association would foreclose on his house for not paying his $60 in late homeowners' dues, his problems didn't stop there.
He wanted to put vinyl siding on his house to cover the stucco and rotting wood, and hired a company that had toured the neighborhood looking for customers. The company received permission from one of the homeowners' associations, but since there are several governing the neighborhood, the one that didn't approve of the siding sued him for not complying with the development's Covenants, Conditions, and Restrictions - rules Craig says the title company downplayed at the house's closing. "They said, 'That's nothing. It's like any deed restriction you have seen before. It was the biggest lie I had ever been told."
The title company later went out of business.
Craig says he wasn't notified he was out of compliance before a process server - a law enforcement officer that serves lawsuits - came to his door.
Craig counter sued, and after 18 months of litigation, he won $12,000 from the HOA's insurance company, which barely dented the $40,000 in legal fees that he had accumulated, and the cost of removing some of the siding and renovating the house. "I was financially devastated," says Craig.
Ironically, ProComm, the management company that works with Craig's HOA, is headed by State Senator John Carona, whom the Community Association Institute called "a very good friend of our industry."
Overbearing homeowners' associations aren't limited to San Antonio. In his book Privatopia, Evan McKenzie cites many examples of HOA boards that have taken action against residents:
"In Ashland, Massachusetts, a Vietnam War veteran was told that he could not fly the American flag on Flag Day. The board backed down only after the resident called the press and the story appeared on the front page of a local newspaper.
In Monroe, New Jersey, an HOA took a married couple to court because the wife, at age 45, was three years younger than the association's age minimum for residency. The association won in court, and the judge ordered the 60-year-old husband to sell, rent the unit, or live without his wife.
In Houston, Texas, an HOA took a woman to court for keeping a dog in violation of the rules of her development. The association won, but she kept the dog anyway. The judge sent her to jail for contempt of court.
In Fort Lauderdale, Florida, condominium manager ordered a couple to stop entering and leaving their unit through their back door, claiming that they were wearing an unsightly path in the lawn by taking a short cut to the parking lot. The couple retained an attorney who filed a lawsuit seeking a court's permission for the couple to use their own back door. •
The San Antonio Current
job sparks dispute with HOA
By Rachel L. Toalson
Web Posted : 12/24/2003 12:00 AM
Dorian MacDougall and his wife decided to paint their home in Shavano
Ridge, they never dreamed their choice would end in a standoff that has
many seeing red.
months after the couple painted their home a pale orange to match the
accent color in the brickwork, MacDougall received a letter from the
Shavano Ridge Homeowners Association demanding that the house be repainted
with one of the community's approved colors.
letter indicated that the board had chosen to enforce stricter rules for
painting houses, and MacDougall now was in violation.
given three years to comply, and that deadline is almost here.
until then, they had said it was OK to paint your house," MacDougall
said. "We have it in writing that we painted our house in compliance
with the rules that stood."
the president of the Shavano Ridge Homeowners Association, said the
homeowner's agreement that MacDougall signed has never permitted painting
houses a color other than the original colors specified by the developer.
The neighborhood is near Clark High School, just off De Zavala Road.
agreement that a homeowner signs up for when he buys the house has never
changed," he said. "The covenants, the bylaws have never
met with board members June 10 in hopes of resolving the situation. He
submitted four different shades of medium beige to be approved by the
board, but all were rejected because they were "not the original
standard colors," he said.
no one would ever define what the standard colors were," he said.
"They refused to define it, even though we were asking."
refused comment on the meeting, saying it was the association's business.
Chris Weber, attorney for the association, could not be reached. .
said it looks like he eventually will lose the battle with the
association, and he is searching for a new home.
befell MacDougall is not uncommon in areas where homeowners' associations
have restrictions or covenants, a national expert said.
is one of a growing number of people who live in an area governed by a
neighborhood association, said Frank Rathbun, vice president of
communications for Community Associations Institute (CAI), a nationwide
organization that represents homeowner's associations, management
companies and lawyers' groups.
about 250,000 association-governed communities across the nation and about
50 million people living in them, Rathbun said differences of opinion are
bound to arise.
vast majority of them operate smoothly and without major conflict or
discontentment," he said. "But in any universe of that size,
you're going to have conflict."
the organization has had its share of problems during the years, though he
did not wish to discuss details.
had a variety of issues," he said. "But the other residents did
concur. They all agreed to the covenant that they signed up to."
exist largely to keep neighborhoods looking neat and clean, Rathbun said.
are lots of reasons people move into these neighborhoods," he said.
"When you move into a community, you have certain expectations,
especially in a community association."
agreed that the rules help the appearance of neighborhoods.
maintain some stability or conformance to the basic community look when
(the community) was first established," he said.
arise, Rathbun said, when owners do not follow the agreements they sign.
not uncommon," he said. "Some move in not realizing the nature
of the community and those rules. Others move in and say, 'This rule is
not going to apply to me.' A lot of this comes down to dialogue and
Rathbun and Wong said that homeowners ultimately make the decision about
where they want to live and whether to sign an agreement.
MacDougall said he did not receive the agreement until right before he
finished building his house, which took about eight months. Never in that
time, he said, did he ever see any kind of agreement or get an explanation
of rules for the community.
the developer of the property, Centex Homes, is responsible for getting
the agreement to the homeowner within a reasonable amount of time. If
residents do not have a copy of the agreement, they can ask for one at the
closing, he said.
Homes could not be reached for comment.
Rathbun said, homeowners associations try to meet the expectations of
their residents and residents respect their governing associations. To
help both parties, CAI has published 42 rights and responsibilities for
board members and homeowners, which are outlined in books and seminars
throughout the year.
more, call (703) 548-8600 or visit http://www.caionline.org/
said he thinks homeowners associations have too much power because the
government does not regulate them.
people have more power than the state and local government," he said.
"They can take your house away, and they don't have to let you know.
have no responsibility; they can make up the rules to suit themselves.
They continue to go completely unregulated, and homeowners haven't got a
he will be mailing out letters and surveys to homeowners who live in
Shavano Ridge to ask their feelings about the covenant.
has set up a Web site on the matter at http://home.satx.rr.com/usrw.