I said recently that I might have to write another newsletter about homeowners’ association foreclosures, that is, what associations can do when obligations owed to them by homeowners go unpaid. After reading what was written in the newspaper item that I linked, I decided now would be a good time to revisit the subject. You can read about it in my Real Estate Law Update by going to deconcinimcdonald.com and clicking on the publications link.
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I might have to write another newsletter about homeowners’ association foreclosures. A story that was posted yesterday on AZCentral.com indicates that homeowners losing their homes due to foreclosures by associations is a big problem, but I’m skeptical. I haven’t been aware of a large number of foreclosures for failure to pay association assessments, but there are a lot more planned communities in the Phoenix area than there are in the Tucson area, so maybe it’s more of a problem there. And while I do think that the late charges tacked on by associations when assessment payments are in arrears are often excessive, I don’t think that the lawyers who are handling the foreclosures are routinely charging exorbitant fees, contrary to what the linked article suggests.
The article doesn’t mention that the law on what associations can charge, and under what circumstances they can foreclose for nonpayment of assessments, has been changed substantially to the benefit of homeowners in the last several years. In other words, associations can’t just charge whatever they feel like, and foreclose the moment a homeowner falls behind in paying assessments. Associations generally don’t want to take someone’s house, just like banks generally would rather have you make your mortgage payments than they would take your house.
Or if you just need one moved across Tucson, Arctic Cactus can do it, as a story in today’s Daily Star suggests. Unfortunately the only place in that story where you’ll actually see any reference to the company doing the moving is in the photo of the truck hauling the cactus. The name of Arctic Cactus is on the door of the truck.
I offer no comment on the idea of taking a saguaro to Seattle. Arctic Cactus is just doing a job they were hired to do. I’m sure it wasn’t their idea.
I wrote last week about the statement by New York City Mayor DeBlasio that he “would like to have the city government be able to determine which building goes where, how high it will be, who gets to live in it, what the rent will be.” The Antiplanner makes the argument, as he usually does, that the more meddling with the free market government does, the less affordable housing becomes.
I didn’t find the recent comments by Mayor DeBlasio of New York City myself, and I’m not going to go as far in interpreting them as the commentators whose posts alerted me to their existence. I’m just going to say that they reflect an approach to land use planning that may have its adherents, but I believe is pretty far out of the mainstream.
The comments I’m talking about are in a New York Magazine interview, in his response to a question about income inequality. He’s essentially saying that the rights of a property owner to use his or her property as he or she sees fit should be completely subordinate to land use decisions by the city government. In his own words, he says he “would like to have the city government be able to determine which building goes where, how high it will be, who gets to live in it, what the rent will be.”
He does acknowledge that the approach he favors is inconsistent with our system of private property rights.
My Update this month is about something a little different: a recent Arizona Supreme Court opinion on the law of cattle brands. The specific question was whether or not the location of the brand on the animal is a characteristic of the brand for purposes of determining whether or not it is identical to another brand. The short answer, logically enough, is no.
To get the whole story, go to deconcinimcdonald.com and click on the publications tab, or just click on this link.
As I said in the Update, I expect that decision to be of interest to my clients and friends in the cattle industry. If you’d like to comment, just click the link below.
Or to put it another way, who knows better where the restaurant will succeed: the owners of the restaurant, or elected officials? I know, the elected officials have concerns other than whether or not the restaurant succeeds. But if that’s the case, then why do their comments (at least, as reported by the Arizona Republic) make it sound like they are only concerned with identifying the location where the restaurant is most likely to be a success?
I have written about this before. The methods used by large enterprises to select locations for their outlets are very sophisticated. Armchair quarterbacking by elected officials is unlikely to be helpful.
This one isn’t anywhere close to the magnitude of the Phoenix hotel mess that I wrote about recently, and it’s probably not as bad as the newspaper article makes it sound, but it still could be a mess. I hope the City of Tempe has lawyers who know enough to get good indemnity agreements and bonds from private parties who build commercial projects on city-owned property. That’s a way for the city to protect itself against what happened here, where contractors are claiming that the project developer hasn’t paid them for work they did on the project.
That reminds me of a truism that I heard once: an indemnity is only as good as the financial statement of the party giving it. That means that if someone promises you that they will cover the cost if something they do results in a claim against you, you better make sure that they have the financial strength to make good on that promise. That’s why there are indemnity bonds.
And what’s an indemnity bond? Here’s how I describe it to clients in the context of someone acting as a fiduciary: it’s an insurance policy against you absconding with the money that’s being entrusted to you. In the construction context, it’s an insurance policy against you causing a me a liability that you can’t satisfy.
PROPERTY OWNER SPENT $350 MILLION TO BUILD PROJECT, STILL OWES $306 MILLION ON IT, IS CONSIDERING SELLING IT FOR $255 MILLION – THAT DOESN’T SOUND LIKE A GOOD DEAL
Read about the potential sale of the largest hotel in Arizona, here.
Debt on the property exceeds the value of the property by $51 million? That's what you call being upside down.
Did I mention that the owner of the project is the City of Phoenix? Thanks, taxpayers!
IT’S HARD TO BELIEVE THAT A DISPUTE ABOUT A GARAGE LASTED FOR OVER SIX YEARS AND WENT ALL THE WAY TO THE STATE SUPREME COURT
Maybe it’s not that hard to believe, actually, but it sure seems excessive that a homeowner in Sussex County, Delaware, had to spend six years defending against efforts by his neighbors to force him to tear down his garage. According to the news accounts, county officials said the garage is permitted by the local regulations, and the homeowner’s activities did not violate any regulations or require any governmental approval.
It sounds like the dispute also involved some contention over a shared driveway, but the news accounts predictably gloss over that aspect, since it was undoubtedly more complicated than the presence and use of the garage. Nevertheless, it took more than six years and a trip to the state supreme court to resolve a dispute over a garage and a shared driveway? That seems particularly ridiculous in light of the facts that, according to the news accounts, it sounds like the home sites of the parties involved are each more than one acre in size (a five acre parcel was split into four pieces), and the home of one of the complainers is 800 feet from the garage. 800 feet is a long way.
The contents of this blog, this web site, and any writings by me that are linked here, are all my personal commentary. None of it is intended to be legal advice for your situation.