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Handling Legal Matters with Your Homeowners Association: An Interview with Willaim P. Benjamin of Higgins Benjamin

By William P. Benjamin

Tell us a little bit about your firm and the areas of law that you practice.

Higgins Benjamin is a law firm with fourteen attorneys and a full support staff. Higgins Benjamin offers clients a high level of service with a hands-on approach to providing comprehensive legal solutions to even the most complex legal matters. The attorneys at Higgins Benjamin place the interests of their clients first and foremost. Our commitment is to provide quality legal services at a reasonable price. Higgins Benjamin has attorneys with the experience and knowledge in areas such as real estate matters, homeowners and condominium associations, bankruptcy, business and civil litigation, as well as employment, family, and tax law. Our attorneys pride themselves on getting to know you and your needs, and providing practical legal advice by balancing the economics, the legal issues, and common sense. With a proven track record of success in courts at the trial level, as well as in appellate courts, our attorneys have the tenacity, integrity, and experience to get the job done, and done well.

What's the first thing that a new homeowner should know about being part of a homeowners association?

When a homeowner acquires real property in a community association, they receive the benefits of membership, but also become bound by the responsibilities and restrictions of the homeowners association's governing documents. This is also true of the other homeowners in the community and it protects you from your neighbors and your neighbors from you.

Disclosure of the existence and financial details pertaining to any applicable community association is required by North Carolina law to be part of the purchase contract. The party acquiring real property that is subject to a declaration of covenants, conditions and restriction or a declaration of condominium takes the property subject to those documents and becomes obligated to the governing documents for the community association. This occurs when the documents are in the "chain of title" and does not require that the acquiring party sign anything. The procedure for removing property from a community association is complicated and a homeowner cannot unilaterally withdraw from a community association.

What are the most common legal matters that you've seen arise with homeowners associations?

Two issues that every Homeowners Association (and Condominium Associations) face are:

1. Enforcement of the covenants, conditions, and restrictions is essential to insure the attractiveness and desirability of the subdivision as well as prevention of future impairment of the properties. In addition to the common areas and amenities your homeowners association may provide, the association, through the Board of Directors, also deals with the man down the street who paints his shutters bright orange in violation of the covenants and conditions. Although, enforcement of a homeowners association's governing documents (aka making sure neighbors follow the rules) is among the most criticized job of the Board of Directors, it is also one of the most important responsibilities they have.

2. Collection of assessments is critical to the sustainability of any homeowners association since assessments are generally the association's only source of income. Assessments are the owner's individual portion of the common expenses of the homeowners association. The obligation to pay assessments is separate and independent from any duty the homeowners association owes to the homeowner. In order for an association to be adequately funded, every owner must pay their assessments in a timely manner. Failure to pay assessments and failure to enforce collection of assessments is damaging to an association.

Can you briefly describe the basic rights that homeowners have when it comes to disputes with their HOA?

As a member of an association, homeowners have the ability to be intelligently informed about the nature of the dispute and to have a hearing before fines can be levied or the benefits of membership suspended. If a hearing is not scheduled, they may attend a meeting of the Board of Directors to present their position on the issue.

When should a homeowner who is having problems with their HOA consult a lawyer?

Homeowner Association (and Condominium Association) matters can quickly become personal and intense. However, many problems can be resolved through good communication. If the homeowner does not understand the issue they should attempt to get clarification from the property manager or the Board of Directors. If the homeowner does not find a satisfactory resolution, then it may be appropriate to seek legal advice if the dispute is "of substance" or something does not "feel or smell right" about a situation. An attorney can advise you of your practical and legal rights and suggest potential remedies to address the situation. Whether or not the attorney becomes your spokesperson is something to consider. We have heard the saying "doctor don't heal thy self," and it may be that representation by legal counsel is the best manner to address the dispute on your behalf.

Is there a law about HOAs that most people don't know about that they should know?

The North Carolina Legislature has enacted laws to assist associations and their members. It is known as the Planned Community Act for townhomes and single family communities and the Condominium Act for condominiums. This sets requirements, limits and standards for the community association to follow and provides guidance when the governing documents are silent.

What's the best way for people to contact you and your firm?

They can call us at 336-273-1600.

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