“Where an excess of power prevails, property of no sort is duly respected, no man is safe in his opinions, his person, his faculties, or his possessions.” –James Madison, Virginian (1792)
Owning real property outside of covenant-controlled communities, e.g., subdivisions or planned unit developments, is becoming more and more rare throughout the country, even among freedom-loving Montanans. Most real estate developers will state that the purpose of the covenants is to protect property values and reduce strife among the property owners within the community. That sounds great. But think about it…an HOA is an independent authority, having no obligation to recognize or respect your constitutionally protected rights to equal protection or due process. It has the power and authority to enforce covenants that make “illegal” activities which are otherwise legal, like painting your house blue, planting a cottonwood tree in your front yard, or engaging in some other “misguided” act of individuality.
Let’s say the developer of your subdivision has decided that the exterior of homes built within the community may be painted only in shades of brown or green and only maple and aspen trees may be planted on any lot within the subdivision. The developer stated as much in the covenants, which you barely glanced at as you placed your signature on each page of the inch-thick stack of papers the closing agent presented to you as you purchased your Montana dream home. What you perhaps did not realize was that you simultaneously signed away your property rights and protections, and in all likelihood, you signed away your right to seek judicial recourse when your HOA violates those rights with impunity. So, without referencing the covenants, you make the mistake of doing something that the covenants expressly prohibit, or maybe even something that a specific HOA board member simply doesn’t like. Suddenly you start receiving “nasty-grams” from the HOA, threatening fines for every day your house remains the offending blue color, no matter that it is the dead of winter and you cannot hope to paint for another six months. Then come the letters threatening a lawsuit if you don’t pay the fines and legal fees that have begun accruing. Before you know it, a lien is filed against your property. If the HOA board is particularly oppressive, you could face foreclosure on your home. Is it legal? Maybe. Remember that you happily and/or willingly purchased property in a covenant-controlled subdivision. You agreed to be bound by those covenants.
James Madison said, “Wherever the real power in a government lies, there is the danger of oppression; wherever there is an interest and a power to do wrong, wrong will generally be done.” It takes only one rogue HOA board member to cause devastating financial consequences to the homeowners in the covenant-controlled community.
If you find yourself being abused or victimized by an oppressive HOA board, I may be able to help. Call 406-752-1100 to set up a consultation to determine what rights or recourse you might have. My regular rate of $200 an hour applies.