Neighbors sometimes lose voice by joining associations |

Neighbors sometimes lose voice by joining associations

Mini-democracy or tyranny of the minority? It depends from which side of the equation you are looking.

In exchange for assurance that a neighbor will not paint their house chartreuse or set up an auto shop in the front yard, homeowners have willingly given up some of their individual rights to join a collective of “common-interest properties.”

It is a concept that goes against the grain of Western idealism, but Californians and Nevadans have embraced it. There are approximately 900 homeowner associations in Nevada, and the California Department of Real Estate estimates that 70 percent of all new housing in the state is in a common-interest development.

South Shore is not immune, and although various sources could not nail down an exact number, the consensus is that they are numerous. From larger associations like Tahoe Keys and Glenbrook, to the smaller condominium associations, the scope of power is large.

Common-interest developments began simply enough. Owners wanted to maintain or increase their property values and increase amenities. But as the number of communities increased, lawsuits kept pace. Paradise had some cracks. Many owners did not realize how restricted their home would be, or how much power their neighbors could wield over issues regarding their personal property.

The Tahoe Keys Property Owners Association is now facing one in a string of lawsuits since its inception. This time a group of homeowners are claiming that the association failed to uphold its own rules and protect what they consider their right to a view of the lake through an adjoining property.

A homeowner on Lighthouse Shores, a lakefront property, planted some trees. His neighbors across the lagoon contend that the trees will eventually block a majority of their view of the lake. The homeowners say that what they saw as a protected right of the association was one of the major reasons they bought their homes in the first place. Now it is up to the courts to decide who has a legal leg to stand on.

Curtis Sproul, attorney and author of “Advising California Condominium and Homeowners Associations” said that when large numbers of an association’s membership remain uninvolved, it opens the way for well-organized factions to take control.

“When Proposition 13 was passed in the 1970s, property taxes went down, but it made it much more difficult to raise local money. One of the unintended results of the proposition was the rise in these private gated communities. In the universe of common interest, it can go from maintaining a private road to associations that look very much like a little town council,” Sproul explained. “But in buying into these projects, owners have to give up some of ‘my-home-is-my-castle’ rights. It is still an experiment in process.

“In a place like Tahoe you can get a very high level of apathy from vacation homeowners. It leaves a very interested minority who are running things. If you get the wrong people managing, who are either ignorant of the law or autocratic individuals, you can get a tyranny of the minority.”

The day-to-day workings of an association are handled by an elected board of directors. To combat problems with autocratic boards, last year Nevada gave homeowners an advocate. Ombudsman Mary Lynn Ashworth receives 600 calls a month from homeowners. She is a state official with little enforcement power, but it’s been enough to turn things around.

“I assist homeowners in understanding their rights and responsibilities and I manage the dispute resolution process,” Ashworth explained. “The state found there was a large amount of abuse by boards being dictatorial, and not coming up with financial records. There were runaway boards. I’ve found that when the board president gets a call from me, they get a little shook up. Suddenly financial records are handed over, things start happening.”

Ashworth said she would like to see more disclosure laws alerting homeowners to their responsibilities before they buy.

“They do lose some of their rights. Owners want the advantages of a common-interest property: recreation areas, well-kept roads, and park areas, assurance that somebody won’t move in next door and let the lawn die, but they also want the independence,” she said. “I’ve seen associations that regulate how long you can have your garage door open, what you can paint your mailbox and home, what flags you can fly. If you buy in a common-interest community, it is quite common knowledge that you are in a restricted community, but people are still shocked when they can’t do what they want.”

Despite the lack of individual choice, homeowner associations do have benefits. By paying minimal assessments homeowners often get the benefits of using common facilities like pools, golf courses, tennis courts and gyms.

And boards are not without limitations. They are subject to their articles of incorporation and the declaration of covenants, conditions and restrictions or “CC&Rs.” In California as few as 5 percent of members can call for a special meeting and call for the recall of the board. Board members are also charged with “fiduciary duty,” meaning that under the law they are bound to act in good faith and with regard for the interests of the whole membership.

Sproul pointed out that homeowners always have the ultimate option of selling their property and seeking out a new house unfettered by an association.

“I don’t live in a common interest property,” Sproul admitted. “I have too many pets, and my boat is parked in my front yard.”

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