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KASS: Home not recorded as part of community

DEAR BENNY:  I have an HOA issue that I was wondering if you ever came across in your years of experience, and appreciate any thoughts you have.

We purchased a home in a water-privileged neighborhood nine years ago and have been current members of the HOA. We recently noticed the county does not have us recorded as a member of the community.  The original owner lived in the house for 55 years – before there even was a community. Evidently, the house was never re-recorded with the county as part of the community. Meanwhile, we and the previous owners have been HOA members paying dues for decades, have participated in capital improvements, voted, volunteered, etc., as members of the community.  There is even a community map from 1959 that clearly shows our property as part of the community. We also have a bond with a joint neighborhood pool that recognizes us as a community member.

We have approached the HOA to have a document drawn up for the county to record. This was recommended by the county.  The problem is, there are some in the community who oppose this.  Assuming the community decides not to assist us, is there anything that can be done? Who is responsible:

*Us, for not researching this thoroughly before we purchased the house.

*The previous homeowner, for not disclosing this issue.

*The Realtor, for selling us a water-privileged home that is not actually part of the community.

*The HOA, by accepting fees/bonds for decades.

Any insight? – David

DEAR DAVID: Actually, I think all four are responsible, but I would add No. 5 – the title attorney or company where you went to closing, or escrow, on your house. I obviously have not reviewed the situation, but from what you write, it appears that you may have a title issue. It may be too late to file any claims against the company that issued you the owner’s title insurance policy, but you certainly should explore this area.

Yes, I do believe the homeowners association – after years of taking your money – has an obligation to clear this matter up.

But let me ask you a question: Do you really care if you are not legally a part – and a member – of the HOA? What if you decide to stop paying the dues? If you are technically not in the association, how can they sue you for those fees?

I would go back to the board and demand they cooperate and take all appropriate measures to bring you back into the fold. However, if they balk, I would stop paying the fee and see where that goes.

DEAR BENNY: The president of our association is presently renting out his unit. His renters have been fined several hundred dollars due to not picking up after their dogs. They have not paid anything in six months. Isn’t the owner of the condo in violation? The fines are listed under his name. – Virgene

DEAR VIRGENE: Don’t you just love it when the president of a condo ignores the rules which impact the president? Unfortunately, your situtation is not unique; I have heard from a number of people who complain about their condo president who is flaunting the rules for his own benefit.

In fact, the book “Escaping Condo Jail,” by Don DeBat and Sara Benson, has numerous illustrations along the same lines.

Have you talked to the other board members? Do they understand that if they allow this to be ignored, they are breaching their fiduciary duty to all owners?

Here’s a suggestion: Every condo association has a provision in their legal documents on recalling board members. Learn the process, and if you have questions, talk with an attorney. Mount a campaign to hold a meeting for the sole purpose of “throwing the rascals (or just one rascal) out of office.”

I have been involved in a number of recall votes, and it does wake up the rest of the owners as to what is really going on in the community.

Benny Kass is a practicing attorney in Washington, D.C. and in Maryland. He is not providing specific legal or financial advice to any reader. He wants readers to e-mail him, but cannot guarantee a personal response. He can be reached at: mailbag@kmklawyers.com.

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