Attorneys Specializing in Appellate Practice Needed

October 12, 2003

By Trevor Sheehy
Copyright AHRC News Services

Contact: Shirley Cottom and Charles Honeycutt: (949)366-2125

With the growth of new concepts of land use and community development, a new level of government, homeowners associations, have been interjected into our legal system.

Seemingly innocuous CCR's intended to both guide the development and maintain standards, primarily architectural, in new communities, have, as a result of a perplexing combination of individual homeowner pettiness and lust for power and social engineering by courts, created a fertile field ready for the cultivation of legal fees by those inclined to stir the imbroglio, and more sadly brought anger and often despair to those who anticipated easy enjoyment of their hard earned and usually not inexpensive homes.

While little may be expected in the way of change for human behavior, what is shocking is the failure of the court to protect the individual homeowners from the pettiness and lust for power of their neighbors and the fee generating legal advisors to the associations. Does it not seem as if the courts have taken something akin to a laissizfaire attitude, letting associations rule as they wilt under the position: "well! you agreed to it when you purchased the property"?


However, when people buy homes affected by CCR's and a homeowners association, are they truly cognizant of the possible impact of the association on their use and enjoyment of the property? We, who have bought into these communities know that CCR's and associated documents are presented sometime before, if not often, at closing - and certainly without full explanation of their potential impact on the homeowner's free use of the property.

The contract which courts say is established through these documents has come to be viewed differently in it's interpretation by the courts than are other contracts into which one may enter. Courts have a history of interpreting written instruments to the benefits of the party having less, if not any power, in the drafting - thereby giving effect only to the mutual intention of the parties. Doctrines to protect the weaker party are part of our legal fabric. For example, the doctrine of Informed Consent to ensure that patients are fully informed of the risks of a surgical procedure, or the Federal Fair Debt Collection Practices Act which places specific requirements on lenders even to the extent of contract form and type. But such protective perspective does not seem to be applied to homeowners in association lawsuits.

The laissez faire attitude of the courts has become one of aggressive social engineering. A recent appellate court tentative decision somehow worked its way to a conclusion that a clause in a four page list of CCR's which stated that the CCR's could be amended by majority vote allows the homeowners association to impose a new requirement that all homeowners pay a monthly fee to an adjoining private club not owned by the association or the residents whether or not the homeowner is able to or wishes to use the facilities.

The homeowners contended that the amendment placed a new burden, one not reasonably anticipated from a reading of the original CCR's and could not be enforced without their consent - all to no avail.

So now associations cannot only restrict the use of your property - they can impose new financial burdens - without your consent...THINK ABOUT IT!

Next you will be required to shop at the grocery store owned by the brother-in-law of the association president.

The Desert Crest Seniors Case is a case in point. If this trend is to be stopped, this case must be appealed to the California Supreme Court.

The decision of the three judge panel of the appellate court must not be allowed to go unchallenged. However, the seniors are of modest means and cannot afford to go beyond the $30,000 they have already spent on this appeal. This is in addition to the thousands which they have already spent defending themselves over the past three years.

To help them defend their homes and possibly your own, please send your donations to:

Fair Play Advocates
69534 Morningside Drive
Desert Hot Springs, California 92241

ATTENTION APPELLATE SPECIALISTS

Any appellate specialists interested in this case please email Trevor Sheehy or call (949)366-2125


About the author:

Trevor Sheehy is a retired attorney from Georgia who has a home in Desert Crest Community Association. He did an amicus brief on behalf of his fellow seniors.

Without informing the residents, the board under the tutelage of collection lawyers Peters & Freedmen dissolved the homeowners association and formed a new one. It designated it a Davis Stirling homeowners association even though it it did not meet the requirements of the Davis Stirling Common Interest Development Act.

It is questionable whether more than a handful of the residents are aware that their association was dissolved and a new one formed without their concurrence. Legally there may be no existing homeowners association.

Shortly after arriving and becoming aware of the board's action in 2000 (the dissolution of the association), Trevor informed the "board" of the questionable status of the association and attempted to inform the "board" attorney, Margaret Wangler of Fiore Wangler and Powers. He relates that he was informed that if he "didn't like it he ought to move."

His future plan is to persist in making all of the over 550 residents aware of the unauthorized actions of the board in the year 2000.

He is also working with the media, courts and authorities to expose the wrongdoing and injustices in Desert Crest.,