Common Lawsuits in HOAs

Strong Suits

By Greg Olear

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Homeowners associations are governed by a private board, generally comprised of residents of the condominium. Just because board members are unpaid volunteers, however, does not exempt them from exposure to lawsuits. Indeed, HOA board members are held to the same standard as their for-profit corporate counterparts where the law is concerned.

According to the Community Associations Institute (CAI), 54.6 million people lived in private associations in 2005—up from just 9.6 million 25 years ago. With so many residents, lawsuits are an inevitability. A homeowners association's exposure could range from mismanagement of funds by a board of directors or a board member, to slip-and-fall lawsuits for negligent sidewalk maintenance during an ice storm, to disputes with contractors, employees and residents.

What kinds of legal actions are the most common in New Jersey? How can homeowners associations lessen their risk of exposure? What steps can be taken to redress small problems before mountains are made of proverbial molehills? And are lawsuits as ubiquitous as they seem? The following may shed light on these questions and more.

It's the Money, Stupid

If there's one thread that joins the disparate types of lawsuits seen in the state involving homeowners associations, it's green in color.

"It's always about money," says Karim Kaspar, an attorney with the Law Offices of Lowenstein Sandler in Roseland.

Probably the most common type of lawsuit involves injuries sustained on the premises due to alleged negligence—the so-called slip-and-fall. Ice is not removed promptly from the front steps, someone slips and breaks their ankle, and presto—instant lawsuit.

Surprisingly, for as common as lawsuits are in HOAs and the amount of time they take up, it's not necessarily the association's general counsel who always goes to bat for the HOA in such situations. "Not much of our time is taken up with working on the really common cases," says David Byrne, a shareholder attorney with Stark & Stark in Lawrenceville. "In general, the insurance company will appoint the lawyer for such claims."

That's because these kinds of claims are generally covered under the homeowners association's liability insurance. In a slip-and-fall case, the board would contact their insurance carrier, who would assign an attorney to handle the case. Personal injury claims, even if paid for by liability insurance, can make rates go up substantially.

If the condominium is large enough to have employees, this increases legal exposure. Employees must be managed, which means hiring them—and sometimes, firing them. This exposes the board to possible discrimination claims for violating Title VII of the Civil Rights Act, which prohibits job discrimination by gender, race, religion, country of origin and age.

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The association is also responsible—to a degree—for how its employees behave. If, for example, a gardener employed by the association makes lewd comments or advances upon some of the residents, the association could be liable if the board knew about the problem but did nothing (or not enough) to correct it.

Fortunately, such claims are relatively rare. With employees, the most common claims involve workers' compensation, for which associations that employ workers have insurance.

Board vs. Contractor vs. Residents

It is also common, Kaspar says, for disputes between boards and contractors to escalate into litigation. "Board members are volunteers, and maybe they're not in the unit all year-round. In those situations, it's easy for disputes with contractors to arise."

Judith Jennings, who has her own law office in Medford, notes that disputes frequently arise concerning building defects. For example, a homeowners association could sue a contractor for installing a faulty air conditioning system; the contractor might then countersue, claiming the problem was with the maintenance, not the unit itself.

Then there are the internal fights, one that pits neighbor against neighbor, or resident against board.

"These usually arise out of a perceived right to services," explains Robert Shanahan, of Kilcommons Shanahan in Annandale. "HOA residents can have a landlord-tenant mentality, and they don't pay their dues if something goes wrong. The board moves to recover the fees, and is hit with a countersuit."

For example, a resident might have a broken toilet in his apartment. He insists that the board have the toilet repaired, although the association's bylaws may explicitly state that he is responsible for the toilet. In protest, he decides to stop paying his dues.

These kinds of cases rarely end well. Residents, of course, are forbidden by the bylaws to withhold maintenance fees, so these cases almost always work against them, and they wind up covering the board's legal costs out-of-pocket.

Finally, there are suits that can be brought against the individual board members. Because no sane person would expose herself to such liability for an exacting volunteer position, boards take out Directors & Officers (D&O) insurance policies to cover their members should the need arise.

Under the so-called fidelity and honesty provisions of D&O policies, board members are not liable for honest mistakes.

"If they are acting according to the advice of their attorneys and other professionals," Kaspar says, "that's OK. If they act arbitrarily and don't follow advice, that's when they get into trouble."

If laws are broken, however, all bets are off. "Fraud is fraud," Kaspar says, "and a board member who commits fraud would be convicted criminally and sued civilly."

Improving the Odds

If board members are supposed to listen to their professionals, what do professionals advise, to lessen the chance of litigation? Given that many of the lawsuits involve neighbors, most pros stress the importance of communication.

"Have a fair system where you can hear people," advises Shanahan. "Show you're willing to listen to their grievances. And try to work it out."

Anything that improves communication among neighbors is a good idea, Shanahan continues, including periodic newsletters from the board, even a summer barbecue for residents can foster better, friendlier relationships wherein people are more likely to work out their differences amicably than resort to litigation.

"We've lost the ability to work things out," he says. "Now, everything is a perceived threat. If you can show that the people in your building are nice people, it brings the pressure down—it brings the volume down a lot."

If tensions escalate, the first step is to try and defuse the situation outside of a courtroom. New Jersey state law requires that an alternate dispute board be the first step in resolving grievances—in fact, if this step isn't attempted, a judge will throw out any lawsuit of this kind.

According to Joel Meskin, vice president of community association products at McGowan & Co., an Ohio-based insurer specializing in HOA coverage, most lawsuits are avoidable.

"There's a lot you can do to avoid claims," says Meskin. "Know your bylaws and any other governing documents, and make sure that new association members receive and sign off on the bylaws and governing documents when they move in. Also, avoid emotional involvement [in disputes]—that can lead to some of the greatest wastes of time and resources." Meskin also strongly recommends alternative dispute resolution between board and residents, management and residents, and residents with other residents.

To that end, Shanahan suggests working with nearby homeowners associations.

"Even if it's arbitration, you make a ruling," he says. "If it does go to court, the judge either agrees or disagrees—you're not going to get in trouble."

As lawsuits are inevitable because it's the nature of the beast, Shanahan suggests having as much money as possible on hand to cover unanticipated legal expenses, "without being ridiculous."

Jennings and Meskin both agree that communication is the single greatest tool in avoiding lawsuits and harmony-destroying squabbles between neighbors. "It's difficult for some people to attend board meetings," Jennings notes. She recommends posting non-privileged information on a community website, so everyone can feel that they're in the loop and not being kept in the dark about the HOAs goings-on.

"Communication is the key to resolving problems," adds Meskin. "An association should consider having a mechanism in place for the community association to address conflicts and grievances."

More Advice

For her part, Jennings suggests letting a professional management company do the heavy lifting, even if your homeowners association is small. "In the long run, it saves money," she says. Also, Jennings points out that since managers don't live on-site, they don't have to worry about dealing with a neighbor. In this vein, there has been talk in legal circles about introducing the idea of professional, compensated board members but this hasn't caught on yet.

Kaspar has different advice. "First, don't go outside the scope of your by-laws," he says. "Lawsuits commonly arise when boards act outside their scope of authority, such as borrowing money, when it's not explicitly stated that they can do so."

Second, Kaspar says, rely on the advice of a good attorney and other professionals.

Shanahan, too, prefers that disputes are settled out of court. "The problem with court is, someone will lose. And they may never talk to the other person again."

The Good Ol' Days?

While the consensus holds that there are more lawsuits now than in the past, Shanahan says you have to go back decades to the 1960s, when many new regulations were codified, to get to a time when litigation was not rampant.

"It used to be, you'd never think of suing because you ate something bad at a restaurant," says Jennings. "You'd just let them know and that was that. But now…"

Does the preponderance of lawsuits stem only from the new regulations in the Sixties, or is there more to it? Shanahan's theory is that Baby Boomers have higher expectations than their forbears, and when those expectations aren't met—and met promptly—they get angry. And anger means lawsuits. (Full disclosure: Shanahan just makes the Baby Boomer cut-off).

Jennings believes the perception that an HOA's insurance company has "deep pockets" convinces some would-be suit-filers to move forward—although if the ones filing suit are residents, they eventually will pay the price in future dues or assessments.

Whatever the reason, litigation is here to stay. Lawsuits are part of the business. As Shanahan puts it, "The only thing that changes are the people involved and the amount of anger."

And it's important to take threats of legal action seriously, says Byrne. "A lot [of claims] are legit," he says. "It wouldn't be true to say that every lawsuit was frivolous."

Given that, it's vital that your own HOA be prepared for the inevitable with good legal counsel and a clean financial house. And in the meantime, perhaps you can prevent some of that inevitable litigation with good communication between board and association members and by fostering a more robust sense of community among your members.

Greg Olear is a freelance writer living in Northern New Jersey.

Comments

Evelyn Doyle

You have no idea how horrible a management company can be unless you speak to me. I have been harassed for years with the property manager convincing many people to do very bad things against me. I will start with a warrant out for my arrest because I didn't renew my dog's license and this was done by the PM. Then the PM convinced the board to change the roof and skylights on 4 condos in our community and everything done was against the bylaws because they forced us to get new skylights when we had the best ones ever with all the upgrades and drainage system. My new skylights are defective since the roofer sawed them to fit the skylight homes. I had skylights like Pella's best ones and now I have Home Depot's which cost $233 and are not laminated and if the thin cheap skylight breaks the glass will fall right into my condo. I got fake fines which I wouldn't pay because they were lies made up by the same PM. Because of those fake fines I was not able to use the clubhouse and pool for 7 years so far. The last thing that happened was the management company for some reason with the help of the board and condo attorney filed a summons against my daughter and myself which the judge threw out and was going to d8ismiss but the condo attorney cancelled it after making a fortune when it was all lies...it was for injunctive relief against my daughter and me and I never leave my condo. The very last thing that occurred is the mgm. co. tried to make me believe an insurance claim was denied. Finally after confronting the 2nd bunch of adjustors who visiting my condo after finding out they denied the claim, someone got scared and the mgm. co. decided to throw me a few crumbs and offered me $4900 for a lot of damage when I know the claim they are pretending was denied was paid out in Jan. or Feb. of 2012. The mgm. co. showed me a copy of a check from April 14,, 1012 and I know that check wasn't for my claim as the president of the insurance co. told me Jan. or Feb. of 2012. Believe it or not there are some insurance co. workers who are involved with this management company which amazes me that somoone would put their job on the line but what do I know. The check that was sent to me was made out by the treasurer of the board but with it came a letter from the condo attorney which said if I cash the check it means I will not hold the board responsible for any future payment. I never heard of such a thing being the board's decision as it usually is done by the insurance co. I believe the claim moeny that was received and never put in the associations account was split amount some board members and the mgm. co. and the board members got scared so the mgm. co. said we will maike the condo lawyer write a letter saying that if the person entitled to the claim money they will agree not to bother the board members for more money,. I think this is totally fraud done by someone who has been having horrible things done to the condo owners. Believe it or not this saqme PM fined a deceased school tearcher after she dies for not replacing her light bulb outside her condo and the PM went to the closing and collected $4750 from the 2 sons of the school teacher and the association never saw it. I am wondering who the heck these people are. Thought you might find this interesting. I am the most honest person and there is nothing in this note that is not true. Sadly there is a lot more that I didn''t include. . of what was done to me but it caused me and my family to not be able to use the clubhouse and pool . I still am waiting

an unknown user

HOAs are a joke and only the lawyers are laughing. You write that the lawyers are giving advice to avoid lawsuits....you are patheticaly ignorant of what is going on in HOAs. HOA attorneys ENCOURAGE conflict with the hope that a lawsuit erupts. This is money in the bank and win lose or draw, HOA attorneys ALWAYS win. At the same time, HOA attorneys are lobbying our legislature (Community Association Institute IS the lawyer lobby) to maintain the status quo of virtualy no state oversight or homeowner protections from amatuer run HOAs. Wouldn't it be nice if a homeowner could call the Attorney Generals office and demand enforcement of homeowner friendly law? HOA attorneys fight tooth and nail to prevent this. Sickening! Like millions of Americans who know the score, you could not GIVE me a home in an HOA.

Janet

Dear Evelyn: I do not understand why you did not get a bulldog for an attorney and go after this slime. Sometimes you need a lawyer - a real fighter - to put someone in their place. Or even go to your local TV station with video of what was happening to you.

Terry

Our board went against the covenants and by laws to add friends to the board. That is right no voting of the homeowners and now they want to pay 20,000 of HOA money to change the by laws as well as Arc rules. What can we do?

NJ Co-opper

There is usually a tightly knit, brick-like alliance between coop attorneys and management companies - most of whom are members of the Community Association Institute. This organization has a very strong lobby that has blocked legislation to strengthen the rights of shareholders. Shareholders and condo owners are at a real disadvantage in NJ. Check it out and contact your local legislator to find out about pending legislation that would help us all - but is stuck in committee.

an unknown user

Can a condominium association in NJ spend monthly condo fees to benefit residents over non resident homeowners?

Mike

You got that right! I had my State Rep sponsor a bill that would impose some constraints and oversight on HOA boards. We all win with checks and balances right???? WRONG...the Community Associations Institute...the lawyers who profit from the theft of our equity and money in the bank....fought tooth and nail to prevent this or any law that would threaten their gravy train.... The bill was sent to "study"...which my Rep said meant "oblivian"

woody

can an HAO prfohibit Free Speech?

Arlington, VA Condo owner

How about a condo association board that did not notify the owners that their parking space lines were displaced when the parking garage was repainted. Yet, the president (>10years ob the board) had her parking space line with the common area left off. Now we have residents with a parking space so small only a motorcycle can park there. Oh, I forgot, it is possible the Management Company has conspired to keep this from the residents/owners. Isn't this fraud too?

Carole

Can a homeowners association in nj modify its covenants to prevent members from suing the association for negligence?

David Kenney

I own a condo in OC New Jersey. Hurricane sandy flood water damaged the condo. The waters came thru the common front door. The door was not sand bagged because a resident stayed in the building during the storm. The door was supposed to be replaced prior to sandy. The Governor and Mayor of oc ordered mandatory evacuations. My place is ruined and insurance is only half my estimates. What can I do? The condo association has a duty to protect our property .

Maryland Man

I would like to know if I should consider suing my HOA for erroneously threading to place a lien on my property and foreclose, if I didn't pay bogus fees and late charges that I was never made aware--yes, I thought my wife paid HOA dues and she thought I paid them. However, we were never made aware of (in writing) dues were late until we received notice of intent to create a lien with fees: collection cost, administrative cost, and attorney fees totaling almost 6 times our quarterly dues. What’s your thought?

beth

in a law suit for Condo Association what names do I serve ---in Illinois the board and the association, Liberman management and the mgr who I was in contact with, I was told if not served properly the judge will throw it out

isik

We live in a HOA and we just had a new neighbor (tenant). She is getting a divorse from her husband. The guy comes everyday with his buldog and stay over night and park his car. He is not in the lease. We had a mothers day party and he came over and among our children, friends and friends children treaten us, yelling screaming because one of my guests parked in far end corner of the tenants house. First of all, we moved the car. Actually according to HOA rules anybody can park it there, we are not in fault. The owners called us following day and saying that we desturb their tenants. The owner does no idea about the husband and he was not in the lese. Instead of apology they gave us a hard time. Week later, same guy came knocking our door almost to broke. My children (4 and 7 yeras old) tottaly afraid of going outside to play all summer because of this guy. We tried to reason with the owners. We filed a police report against them. The tenant apperantly does not know her 20 years of husbands last name and birthday. Both tenants and owners are not cooperative. We asked HOA to send a notice to them because according to HOA rules, owners responsible from their tenants action. They said that it's a neighbour issue and they do not want to involve. When we send a official letter to the Board, the Board spoke with an attorney and they decided to not take a n action however they granted the bully guy to park inside to our HOA when he visits. Apperantly, anybody can bully their neighbours and get away with it. This issue gave us a great deal of stress all summer. We have withnesses and police report. We will be going to court. NM just adapted a HOA legislation and it's effective on July 2013. According to this new HOA, HOA has to favor his home owners. Plus we have been great neighbours and we never had any problem with any tenant. Can HOA Board members can choose who to favor or not or they have to do what the covenants say?

Betty Ackerman

We recently wanted to volunteer to serve on the Board of Directors (my husband ). He was told he would not be able to run because he had to be physically present at the time of the board elections meetings. He was also told that he could present himself as a candidate the day of the meeting if he changed his mind and owners of the condo association would be able to vote at that time . Which my husband did. 5 minutes later he was approached by the attorney of my condo association and told he could not run and once he withdraws he cannot re-enter. After he was told that he can. We had quite a crowd ready to vote and he was told he could not run for the board. The present board members were incumbent board members and just wanted to run unopposed. What is his recourse since there are no such rules in our by-laws.

an unknown user

can an hoa restrict use of facilities if lives somewhere else

an unknown user

can hoa restrict owner from coming into the community . fees are all paid to date. but temporarily living somewhere else.

an unknown user

I'm in the same spot of Maryland Man.. im being sued for a special assessment i was not aware of. Please need some help!!!!! Monthly payments were always paid on time!!

Never Again

HIllsborough Village Condo Assoc refuses to trim the trees that are rubbing on the roof. This will cause damage and allow a path for insects. How can we force them to trim these trees before infestation or damage occurs?

an unknown user

I live in a DE HOA community. Should the landscaper carry worker's compensation insurance, along with general liability. What are the pitfalls? Thanks

NJ Condo resident

Board election was held with 3 members 2 yrs back, last yr they continued with same members. this yr when I want to be board member they announced 4th member and held election. by law says no member can be in board for more than 3 yr. But there are some in board for more than 3 yrs. when mentioned it was not even listened.

Millie

I thought I was helping and hired man to cut dead branches hanging over my roof for fear iif broken they would break window or damage windo.Pres of assoc told me to send in invoice as she wanted to rimburse me.Board members said no be a use I did not fill out Maintaince request.I did no because a Large tree by condo had a X on it to come down for 7 Mo and a week ago we had a bad storm and it almost hit our condo. I was glad I did hire man but now mad at board as they knew I saved them money by hiring my help. Amt was only $51.00 They said they would give me 25.50 but I know for a fact other work has been done in here by handyman and Maintaince request was not filed

an unknown user

Board member does not follow CC&R's. Infringes on others space and common area with storage, bikes, tools. WHAT CAN WE DO?

RICHIE ROLLINS

MY CONDO ASSOCIATION REFUSE TO REPAIR MY ROOF IT HAS A HOLE IN IT WATER IS COMING IN MY BEBROOM CEIL.

michael sher

I was about to buy an apartment for our twice a year visit to USA from South Africa. I'm amazed at the vindictive behaviour of Apartment owners and Board members & their sly attorneys. I will now consider a stand alone house with a fence between me & my neighbour. Good fences make good neighbours. There are no fences in apartmernt blocks.

Discussed Homeowner

Can an HOA in NJ deny service to some residents while providing it to others? Those being denied HOA fees are up todate.

Mike

Our HOA of MILLSTONE COURT, STATEN ISLAND, NY 10314, doesn’t exist, – Only one lady that says she is the treasurer, sends us every year the total amount that we have to pay for that incoming year, without sending us, for at least last six years, any explanation, proof or records of where, when how the money was spent etc… Funny thing, even the increases on the HOA fees for at least two years came from the same lady on an notice page without any signature or even HOA stamp telling us that HOA fees just went up to $400 from $250. None meeting from the people living here was hold, nobody knows who decided for that increase etc… I dont know what is going on here. Please help us with any thoughts or suggestions on this issue. Thanks very much

John

Recently I bought a property that was bank owned, there wasn't much info exchanged from bank but the price was such I figured I couldn't get hurt. I bought it w/ intensions of renting it. I closed put an add in a local newspaper to attract interest. I then received a letter stating the HOA no renters rule. I did not want to live there so I decided to clean it up & resell it. Upon starting my work there I was greeted by the neighbors & was asked if could employ this certain guy who was down on his luck & needed money. I agreed to let him do some gardening outside upon him finishing that I paid him $20 over our agreed price hoping it would satisfy him. He asked if there was anything else he could do to make money. I said I'd see & get back to him. He really wanted to power wash my roof which I figured would be a huge liability if he should fall. I said no & hired a professional company that was insured! Upon finishing my project at the house I was greeted by him when I was leaving he said you never called me ! I said sorry I really didn't have anything else I needed done so I thought I left him on good terms but now suddenly his mom is the president of the association & she stated to me that her intentions are to make it impossible to sell my unit in no uncertain terms. She's about to find out she's playing with the wrong cowboy though I'm gonna own that house of hers very shortly! Hope she reads this!!

an unknown user

My HOA changed management companies about a year ago. The old HOA sent my mail to my old LA address until moved into the actually house in Phoenix. I changed the mailing addressand began to receive my bills as usual. Then about 6 months ago the HOA changed management company. I guess my hedges wereto long for the HOA ccompany's liking. I didn't get any warning letters or fines in the mail.Then I nnoticed I wasn't getting my bill from the HOA. I went to speak with the new company and they said I had fines and late fee and attorney fees to pay for my hedges. They were sending the letter to my old address. They refuse to remove the chsrges. Is there anything I can do?

jim

I bought a home in a HOA community and I have requested a copy of the HOA rules and its been two years now and after several request I have not been sent a copy yet. I have not paid my dues yet and I just received a late fee notice from an law firm. What rights do I have and what should I do.

Feeling Taken

I bought a home in a HOA community but was not informed before the closing of the HOA being in receivership. It has been a nightmare of good-ole-boy's taking care of their own. The lawyer is getting fat and we are treated like we don't belong in our own clubhouse. I want out but now I'm stuck. I would NEVER buy in a HOA situation again.

anonymous

If you want to avoid needless litigation, b.s. fees and unfair dues, don't buy a residence that has an HOA. The headaches you will have to deal with will far outweigh any maintenance issues arising from owning your own private residence.You may at first think that you will be saving some hassles, but the odds are you won't. The solution is VERY simple.

Iseesociopaths

I own a home on waterfront property. We have 35 homes on the island. We have an HOA that is run by mad men and women, absolute mad house. I feel HOA condo life is a different animal, but I do agree with the mentally ill sociopathic personalities who run for the board and turn our homes into a compound run by bullies and criminals. Their needs to be a prison and county jail sentences for these criminal acts of so called volunteer board members. I say get rid of the HOA and help a neighbor mow a lawn or fix a leak and kick the crap out of the bullies to clean up the mess.

john

Willowbriar Hoa in Loveland CO. Passed a policy in 2013, banning bike and scooters from the sidewalks to the street. Now they are urging residents to remind kids, not to play on the sidewalks at all.

Vanessa

I live in Fl, and every time I go in the office they treat me like I am a bumb from the corner,rather than a homeowner. Is there anything I can do to get respect

Jane - HELP!

Hey anybody answer this question... My HOA for my SFR has ignored me for 5 years... no bills, no calls, no anything. Now 5 years later (out of the 15 I have lived here) they are trying to forclose for legal fees, fines, Past due. They have not treated me as a member .. no ballot voting for the board. They know where I am at. Legally do I have to pay all these fees after they have not done their duty and even gave me notification of fines and dues?

Sparky Jones

I am disabled from 2 car accidents and i cant get out and lift the pressure washer like i use but my homeowners association keeps hounding me to clean mold off the siding. Which i wish i could but i have to rely on family to help me with now they gave me a violation letter. They know i am disabled and seem or dont care. I feel like i like in Nazi or Communist area. Telling me how to live on house i spent over 100,000 dollars.

Adam Kane

I've had my lot for more than 10 years. My area is undeveloped, lacks power and water, only a cemented road and no neighbors even for a few blocks. Naturally, I live elsewhere because of the lack of development. Suddenly I get a letter from a HOA demanding me 10 years worth of association dues. My gripe with them is I never knew they even existed. They located me via tax mapping. My real estate taxes are paid on time, everytime, every year so no problem there. IMy question is why didn't they try to contact me years ago? I've kept my current address and contact numbers all these years. No knowledge of their existence then no knowledge of by-laws. Is it within my rights to NOT pay due to lack of development and non contact for the past ten years?

Re Sparky

I am disabled too.I am on ssdi.So the hoa can sue as much as they want,But collecting anything?No,Not my check,I am just walking away from my home.Its lost over half its value.Why stay?

Sally Hough

We need to make as much noise as possible about the tyrants who are the Board. I'll likely be in the HOA for the rest of my life as it is too expensive to move and remodel.. However I would never recommend another live in an HOA and would move out if I could.

Jan

It's obvious that the writer of this story failed to do basic research. He just listened what one source told him to write. He missed totally out on the most common kind of lawsuit: Association vs. Homeowner. But that's not what the CAI and its attorneys wanted in the article. The CAI is still spreading the propaganda -- USING A TOTALLY FLAWED OPINION POLL -- that a wide majority of homeowners is happy living in a homeowners' association. The huge number of lawsuits between boards and owners definitely tells a totally different tale!


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