Homeowner Jim Hildenbrand has been embroiled in a four-year court battle with his Homeowner’s Association (HOA). His case went to the state appellate court but that court raised more issues than it settled. The Kansas Court of Appeals reversed the district court’s ruling and sent the case back for resolution. The appellate court said the district court applied an “incomplete test” in determining whether the HOA acted in good faith.
The HOA has control over the 153 homes in his subdivision. Last week, Jim and his attorneys were back in Johnson County District Court again. Jim wants to prove he was treated differently by the HOA than his neighbors were.
Jim’s children were grown and his father had died. Jim closed his architectural consulting business and decided to move closer to his mother. He bought a house in 2012 and the HOA was immediately in a fight with him over the placement of his satellite dish. The HOA wanted the dish on an 8-ft pole in the middle of his backyard.
The dish was installed on the side of the house, behind the air conditioning condenser. Jim was up all night unpacking. At 8:05am the next morning, the HOA management company called Jim saying he had vehicles parked in the driveway, his satellite dish was on the side of the house, he had a blue ceramic flower pot and a St. Francis statue in his landscaping - all violations. Welcome to the neighborhood!
The HOA began fining him tens of thousands of dollars for these ‘violations’. Jim hired an attorney for the satellite dish. The Federal Communications Commission (FCC) ruled in Jim’s favor. The HOA had to pay for Jim’s legal fees and the HOA dropped the issue.
The next year, Jim hired a landscape designer for a landscaping project. The HOA ordered Jim to stop the work. The HOA held up Jim’s landscaping project for a year before emailing Jim an approval. Jim had a tiered garden installed in the back yard. When work started on the front yard, the HOA started taking photos and he was ordered to stop work. The HOA declared the subdivision’s aesthetics and ambiance would be harmed as a result of Jim’s ongoing and continuous violations.
One neighbor who supported Jim said she’s now the target of the HOA and receiving violation notices. Another supporter was told to shut up. Residents say the rules aren’t applied evenly. Neighbors and even HOA Board Members say Jim’s landscaping is gorgeous, but not compliant. Neighbors are pitted against one another. One resident said if homeowners didn’t adhere to the HOA laws, there would be “complete anarchy”.
Jim hired an attorney specializing in HOA defense eventually going to trial in the district court. The district court ruled in favor of the HOA, ordering Jim to remove the landscaping, but the court also ruled Jim’s ‘full’ landscaping plan had not been submitted to the HOA’s Architectural Review Committee. The court then stayed the order (halts further legal process in a trial or other legal proceeding).
Jim submitted a full landscaping plan to the HOA committee that was promptly rejected. Jim was back in court again, the court lifted the stay and Jim appealed the decision.
Jim’s legal bills have been very costly and if he wins his case, the HOA could end up reimbursing him for his legal bills. Jim will again be back in court later this week in what is hoped to be a final ruling.
It is very important to understand the risks associated when litigating issues against an HOA. Gantenbein Law Firm's Colorado HOA attorneys represent homeowners solely in HOA fines, defending HOA lawsuits and covenant violation issues. Homeowners can fight their HOAs but it is highly recommended that a homeowner seeks the assistance of a Denver Real estate attorney that understands how and when to fight the HOA.
Gantenbein Law represents Colorado Homeowners with Real Estate, Tax, Business, Estate Planning, Credit Disputes and Foreclosure Defense. For more information, visit www.gantenbeinlaw.com or call 303-618-2122.
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