Arizona has nearly 10,000 Home Owner Associations. All collect fees for some valid purpose. Nearly all place restrictions on owners. Some restrictions appear in the association bylaws and could be changed by a majority vote of the board of directors or the owner-members. Use restrictions that appear in the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) are a special case. Legally, they “run with the land”. That means they apply to all owners today and everyone who buys that land – essentially forever.
Use restrictions in CC&Rs have a mottled history in US law. For example, in 1940, 80% of property in Chicago and Los Angeles carried restrictive covenants barring black families. In 1948, the US Supreme Court prohibited enforcement of racial covenants in the Shelley-v-Kramer decision. Without that decision and the 1968 Fair Housing Act, housing patterns in this country would be very different from what they are today.
Use restrictions are common. Our Desert Mountain CC&Rs have eleven pages of use restrictions in “Exhibit E.” Read them some time. It’s a real snoozer except for one fact. You’ve agreed to all this – and everything here can be enforced with fines which can become liens against your home. Some of these use restrictions are trivial. Some are obsolete. Others are important. Among these are restrictions on how your home is used. For example, our CC&Rs have use restrictions on animals, construction, boats and motor vehicles, lights, antennas, garbage, mining, fires, clothes drying, rentals, golf carts, temporary buildings, lawns, insects, party walls, and overhead encroachments (tree limbs).
In my experience, DMMA does it’s best to enforce these use limits. You’ll get a polite message and a more demanding follow-up if you ignore the first message. Eventually, you’ll be assessed a fine for non-compliance and will be summoned to a DMMA hearing. That fine can become a court judgment and eventually a lien against your home. The lien earns interest until paid and has to be satisfied when you decide to sell or re-finance your home.
Are all these use restrictions enforceable? The clear answer is “maybe”. No one knows for sure until enforcement is tested in a court of law. Use restrictions that can’t be enforced are usually considered void. For example, the use restrictions currently being proposed by our Board are said to prohibit certain classes of short term “renters” but not “guests.” Our Board insists on the distinction that renters pay and guests don’t. Fine. But how can anyone be sure who paid and who didn’t? Nothing requires either you, a guest or a renter to answer questions from DMMA. How can our HOA be sure someone in your house is a guest and not a family member? Is DMMA going to send inspectors to check IDs and take DNA samples?
Our HOA has the right to send inspectors to check exterior portions of your home. That’s section 1.1.26 of our Use Restrictions. But checking the interior of your home is specifically excluded, at least while the home is occupied. When no one is home, DMMA is authorized to go in and have a look around. But that won’t help DMMA decide who is a paying renter and who is a guest. Remember, the proposed use restrictions are on rentals less than 30 days. So DMMA would have to keep checking back for a month. If the renter is still there on the 29th day but gone on the 30th, we have a violation!
Use restrictions can be void if they’re discriminatory. For example, the restrictions proposed by our Board grant a waiver for short-term rentals arranged by the DM Club. The DM Club is said to be a “de facto” member of DMMA. That can’t be true. All members of DMMA have to be home owners in Desert Mountain. The DM Club is a non-profit organization prohibited from owning rental properties under federal tax law. Still, our Board gives the DM Club power to anoint legal short-term renters. That seems discriminatory – giving some other organization special privileges.
Some use restrictions are simply silly – lawyers would say, “void for vagueness.” A dispute at the “elite” Stonebriar HOA in the wealthy Dallas, Texas suburb of Frisco is a case in point. A few years ago, owner Jim Greenwood’s new Ford F-150 truck was seen parked in his driveway. That must have been considered trashing the Stonebriar brand by their HOA. According to the Dallas Morning News, this is what happened next:
The Stonebriar HOA sent resident Jim Greenwood threatening letters due to his insistence on parking his new Ford F-150 truck in his driveway. Covenants at Stonebriar don’t allow trucks, RV’s, golf carts, trailers and other “undesirable” vehicles parked in front of homes. The rules do allow Escalades, Ridgelines and even the hideous looking Chevrolet Avalanche to be parked in driveways. HOA representative Bill Osborn explained the difference with the most ridiculous nouveau riche answer ever:
“The high-end vehicles that are allowed are plush with amenities and covers on the back. It doesn’t look like a pickup. It’s fancier.”
Stonebriar even allows the Lincoln Mark LT, which is just an F-150 with a nicer grille and chrome. This may not be a big deal in Greenwich, Glencoe or Grosse Pointe. But remember that Texas has concealed handgun laws. We sympathize with Mr. Greenwood’s frustration.
“If we had a big Hummer, that could be in the driveway. If we had a Lincoln Mark LT, that could be in the driveway. But my Ford F-150 can’t. That doesn’t make sense.”
We’ll follow up on the story when someone gets shot.
Desert Mountain Homeowners Coalition 