Saturday, September 20, 2014
FAIRFIELD-SUISUN, CALIFORNIA
99 CENTS

Does HOA need to be incorporated?

By
From page C2 | July 28, 2012 |

Q: We moved into our home seven years ago. We were told that we had a homeowners association and we were given a set of the C,C&Rs governing our development. We went to an association meeting and were told that the association isn’t incorporated. We have some renters in our home who won’t follow the rules. Is there anything the association officers can do about this? Also, under the law, is it even possible to have a homeowners association that isn’t incorporated?

A: I’m not entirely sure I understand the first part of your question, so I’m going to try and provide answers to several different questions and hopefully I’ll hit on the information you’re looking for.

Homeowners associations are becoming the norm for new housing developments, not that there’s a lot of those right now.

An HOA is a type of “city council” that exists only by the agreement of all the homeowners. Like a city council, its purpose is to govern the day-to-day management of the development.

Some HOAs, like in Fairfield’s Rancho Solano or Eastridge, have broad sweeping powers and relatively large budgets with which to manage streets, fences, street lights, security, green space, etc.

They can fine homeowners for parking their cars on the street at night or painting their home an unapproved color. They typically have a private security force to monitor the security of the development as well as serve as a surrogate police force capable of breaking up parties and even making arrests.

Others are not given all of those powers or money, and simply set rules regarding the operation of the development while having very few tools to enforce those rules. Typically, these types of HOAs leave any enforcement to the individual homeowners who are left with no option other than to ignore the problem or file a lawsuit against their neighbor.

The powers given, or not given, to an HOA are mostly contained in the C,C&Rs which functionally serve like a type of civil code defining what the HOA can and cannot do.

When it comes to making tenants follow the rules, regardless of the type of HOA, ultimately the property owner or landlord is responsible to the neighbors and the association.

No HOA has the ability to fine a tenant. The liability for imposed penalties such as fines is inherited by the landowner as a result of his ownership in the land itself.

So the answer to the question I think you’re asking is: No, the officers of the association, incorporated or not, can’t be relied upon to supervise your tenants. That’s your responsibility as the homeowner.

To answer the second part of your question regarding incorporation: No, I guess an HOA doesn’t technically need to be incorporated.

If the C,C&Rs lay out the existence of the HOA, and each homeowner’s deed requires the homeowner to adhere to the C,C&Rs, then it’s possible to have a defacto association that operates without the benefit of the corporate structure or protections. But I can’t imagine why anyone would want to do so.

Without being a corporation, what you’re left with is one big partnership. That means each homeowner is individually liable for anything the HOA does. If an employee, for example, sues the HOA for back pay or sexual harassment or discrimination, then every homeowner is equally liable as if they had been the employer. That’s because, just like in any business partnership, they are. That’s the nature of partnerships. Everybody is responsible for every other partner’s actions.

If I were you I would look closely at the C,C&Rs and see if they don’t require the HOA to be incorporated. My hunch is they do.

If so, ultimately, the homeowners can sue the officers to make them incorporate.

Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at SolanoScene@TJones-Law.com.

LEAVE A COMMENT

Discussion | 1 comment

The Daily Republic does not necessarily condone the comments here, nor does it review every post. Read our full policy

  • PatrickMay 31, 2013 - 12:10 pm

    Couldn't you just draft by laws that offer you the same protection as a corporation i.e. no individual homeowner can be sued for anything the HOA does

    Reply | Report abusive comment
.

Solano News

Solano jobless rate drops, jobs rise

By Barry Eberling | From Page: A1

 
Parsons files FPPC complaint against Bertani

By Barry Eberling | From Page: A1

 
Memorial focuses on hope, healing from addiction

By Amy Maginnis-Honey | From Page: A1 | Gallery

Travis celebrates KC-10′s 20 years at base

By Ian Thompson | From Page: A3 | Gallery

 
Highway 37 detours in place

By Amy Maginnis-Honey | From Page: A3

 
Vallejo man faces deportation after guilty pleas

By Jess Sullivan | From Page: A3

New law aimed at urban water district reports

By Amy Maginnis-Honey | From Page: A3

 
Maintenance begins on Rio Vista Bridge Sunday

By Amy Maginnis-Honey | From Page: A4

 
Fairfield police log: Sept. 18, 2014

By Susan Hiland | From Page: A9

 
Suisun City police log: Sept. 18, 2014

By Susan Hiland | From Page: A9

.

US / World

Record-setting retardant used on California fire

By The Associated Press | From Page: A1

 
Oakland mother charged in cocaine death of son, 2

By The Associated Press | From Page: A4

UC campus chancellors granted hefty pay raises

By The Associated Press | From Page: A4

 
Brown vetoes diaper changing-station bills

By The Associated Press | From Page: A4

Feds approve California’s immigrant license words

By The Associated Press | From Page: A5 | Gallery

 
California man accused of killing fellow gym-goer

By The Associated Press | From Page: A5

California school gender equity ruling upheld

By The Associated Press | From Page: A5

 
State to ban smoking at home day cares

By The Associated Press | From Page: A5

Driver of stolen van that hit dog gets prison time

By The Associated Press | From Page: A5

 
License plate scanner networks capture movements

By The Associated Press | From Page: A5

Fence-jumper makes it into the White House

By The Associated Press | From Page: A9

 
Florida town knew shooter had troubled past

By The Associated Press | From Page: A10

Daughter calls Utah doctor a monster at sentencing

By The Associated Press | From Page: A10

 
3 guilty in Ga. salmonella-tainted peanut trial

By The Associated Press | From Page: A10

Fierce fighting in Yemeni capital kills 120

By The Associated Press | From Page: A10

 
Sierra Leone begins 3-day Ebola lockdown

By The Associated Press | From Page: A10

Ambush suspect could be aided by dense woods

By The Associated Press | From Page: A10

 
France joins US against Islamic State over Iraq

By The Associated Press | From Page: A10

After vote to stay in UK, Scots must heal divide

By The Associated Press | From Page: A10

 
.

Opinion

Fairfield Ford boost animal adoption efforts

By Letter to the Editor | From Page: A8

 
.

Living

Community Calendar: Sept. 20, 2014

By Susan Hiland | From Page: A2

 
Make sure you get educated during Ovarian Cancer Awareness Month

By Kathy Mitchell and Marcy Sugar | From Page: A7

.

Entertainment

 
Fallon to pay up, broadcast show in Chicago

By The Associated Press | From Page: B9

 
TVGrid

By Daily Republic Syndicated Content | From Page: B9

.

Sports

Legs power Mustangs in win over Falcons

By Nick DeCicco | From Page: B1 | Gallery

 
Indians score late but still fall to Panthers

By Marcus Lomtong | From Page: B1

A’s Lester holds Phillies to 5 hits in 7 innings in 3-1 victory

By The Associated Press | From Page: B1 | Gallery

 
Big plays in second half lift Vanden past Center

By Paul Farmer | From Page: B1

Raiders could be down 2 starters on defense

By The Associated Press | From Page: B2 | Gallery

 
Sharks open with new vibe after playoff collapse

By The Associated Press | From Page: B2

49ers’ Davis, McDonald questionable for Sunday

By The Associated Press | From Page: B2

 
Rio Vista gets easy football win over Delta

By Daily Republic staff | From Page: B2

Stewart slogs through tough day at New Hampshire

By The Associated Press | From Page: B2

 
Keselowski wins pole at New Hampshire

By The Associated Press | From Page: B2

Gordon has suspension reduced to 10 games

By The Associated Press | From Page: B2

 
After NFL, baseball addresses domestic violence

By The Associated Press | From Page: B2

Goodell: ‘Same mistakes can never be repeated’

By The Associated Press | From Page: B2

 
Kershaw gets 20th win as Dodgers pound Cubs 14-5

By The Associated Press | From Page: B2

 
This date in sports history for Saturday, Sept. 20, 2014

By The Associated Press | From Page: B3

.

Business

The Kuro taste: Peppery tang and hint of squid ink

By The Associated Press | From Page: B4

 
Pabst Brewing to be sold to Russian company

By The Associated Press | From Page: B4

China fines GlaxoSmithKline $492M for bribery

By The Associated Press | From Page: B4

 
Procter & Gamble cancels on-field NFL promotion

By The Associated Press | From Page: B4

California adopts olive-oil labeling standards

By The Associated Press | From Page: B4, 1 Comment

 
Yahoo rakes in another jackpot from Alibaba’s IPO

By The Associated Press | From Page: B4

Alibaba stock soars in jubilant trading debut

By The Associated Press | From Page: B4

 
.

Obituaries

George Junior Rhode

By Nancy Green | From Page: A4

 
Charles Randolph Orr

By Susan Hiland | From Page: A4

Corazon Libunao Thompson

By Susan Hiland | From Page: A4

 
Allie M. Zell-Jones

By Susan Hiland | From Page: A4

.

Comics

Pickles

By Daily Republic Syndicated Content | From Page: A6

 
For Better or Worse

By Daily Republic Syndicated Content | From Page: A6

Beetle Bailey

By Daily Republic Syndicated Content | From Page: A6

 
B.C.

By Daily Republic Syndicated Content | From Page: A6

Garfield

By Daily Republic Syndicated Content | From Page: A6

 
Sally Forth

By Daily Republic Syndicated Content | From Page: A6

Frank and Ernest

By Daily Republic Syndicated Content | From Page: A6

 
Zits

By Daily Republic Syndicated Content | From Page: A6

Baldo

By Daily Republic Syndicated Content | From Page: A6

 
Dilbert

By Daily Republic Syndicated Content | From Page: A6

Peanuts

By Daily Republic Syndicated Content | From Page: A6

 
Rose is Rose

By Daily Republic Syndicated Content | From Page: A6

Blondie

By Daily Republic Syndicated Content | From Page: A6

 
Word Sleuth

By Daily Republic Syndicated Content | From Page: A7

Crossword

By Daily Republic Syndicated Content | From Page: A7

 
Sudoku

By Daily Republic Syndicated Content | From Page: A7

Bridge

By Daily Republic Syndicated Content | From Page: A7

 
Cryptoquote

By Daily Republic Syndicated Content | From Page: A7

.

Home Seller 09/20/14

Average US 30-year mortgage rate at 4.23 percent

By The Associated Press | From Page: HSR2

Real estate transactions for Sept. 20, 2014

By Daily Republic | From Page: HSR3

New Standard Pacific models in Vacaville

By Daily Republic | From Page: HSR3