Matthew Winton's Condo & HOA Blog

Online Zoom HOA legal issues seminars December 13 and 15, 2021

For over 15 years, the Central Oklahoma Neighborhood Alliance led by Georgie Rasco has hosted with Oklahoma HOA attorney Matthew L. Winton the only formal condo and HOA legal issues seminar in the State of Oklahoma. Presented over the course of two nights at approximately two hours each presentation, the topics cover condo and HOAs from start to transition from developer to the continued life of a community association. If you are interested in condo and HOA law in Oklahoma, here is a great learning opportunity.

You can register here for the December 13 and 15 seminars.

HOA and Condo Association basic legal issues July 13, 2017

 

This video by Oklahoma community association lawyer Matthew L. Winton is a two hour presentation on an introduction to Oklahoma community association legal issues. Topics discussed are general development and how condo and HOAs are created and formed, Oklahoma law and statutes, terminology, HOA meeting management, and enforcement issues. Questions and answers were part of the presentation format. For a schedule of upcoming presentations, go to http://nacok.org/events/

Winton Law collections memo

At the recent Neighborhood Alliance HOA Legal Issues workshop, a request was made for the Winton Law assessment collections memo. You may Download Winton Law Collections Memorandum 2016 by clicking on the link. You may contact the office to discuss the particulars of your association's collections issues.

I also want to thank Mutual of Omaha for sponsoring the Legal Issues workshop. Check the Neighborhood Alliance webpage for upcoming Legal Issues workshops - we put on approximately four sets per year, the first being a basics course and then a companion advanced course.

Matthew L. Winton

Oklahoma condominium and homeowner association lawyer

Does an HOA board have to comply with the Fair Debt Collections Practices Act?

The topic of the Fair Debt Collections Practices Act came up at the recent OBA webcast on Oklahoma homeowner association law. Specifically, the question was:

Q - Do HOA boards have to comply with the Fair Debt Collections Practices Act?

A - The FDCPA is found at 15 USCA 1692 et. seq. By definition, a board member or officer of an HOA collecting the HOA's own debt is not a "debt collector" under the FDCPA. 15 USCA 1692(a). However, if for some reason the HOA sought to collect its own debt under an assumed name which would tend to make a consumer believe a third party sought to collect a debt, the HOA could be defined as a "debt collector" under the FDCPA - why an HOA would ever do this is beyond me.

Matthew L. Winton, Oklahoma homeowner association lawyer

Undefined terms in covenants

During the recent OBA webcast on Oklahoma homeowner association law, I was asked the following question:

Q - If the governing documents do not offer a definition of a particular term, such as "outbuilding," where would one go to find such a definition?

A - It may be that the context of the word used in the governing document suffices to remove any ambiguity in the intent of the drafter. Of course, governing documents should not only define key terms, but also use such definitions consistently throughout the patchwork of governing documents.

Courts will often look to Black's Law Dictionary or Webster's Dictionary for the plain meaning of words. If these efforts fail, it may be that there exists an ambiguity in the governing document, which must be resolved by resort to determining the drafter's intent, which may be satisfied by testimony or an affidavit from the developer or the drafting attorney.

Matthew L. Winton, Oklahoma 

Creation versus Organization of an HOA

This seems to be a popular issue this week. At both the OBA webcast this past Wednesday and at today's luncheon for the Central Oklahoma Association of Legal Assistants, I was asked about when an HOA is created.

A - It is my opinion that an HOA is created when "creation language" is filed of record with the county clerk. For example, the plat to an addition may provide for common areas and contain a plat restriction like, "All common areas shall be maintained by the property owners association. Each person owning a lot shall be a member of the association." While this language would be what I call barebones, I believe it sufficient to put a buyer on notice that there is an association in existence and that owners must be members of the association.

60 OS 852 uses the term "formed" for the association. It requires the association to be "formed" by the filing of a document specifying the obligations of owners to the association in a filed, acknowledged document with the county clerk. A plat or covenants filed with the county clerk containing specific membership and administration language serves this purpose.

Matthew L. Winton, Oklahoma homeowner association lawyer.

Foreclosure on attorneys fee judgment

During the recent OBA webcast on Oklahoma homeowner association law, I was asked the following question:

Q - If an HOA has sued an owner and received a judgment for attorney's fees, can the HOA file a lien and foreclose on that lien?

A - Generally, no. Unless the governing documents provide that fees and costs of the Association are lienable charges, the HOA must collect its judgment against the owner just as it would collect any other judgment. Homestead (presuming the owner lived on the property) would prevent the HOA from executing on the judgment. However, if the judgment was against an owner and the owner's property within the HOA was a rental, then the HOA could go after the property free from homestead protection.

The HOA could seek collection of its judgment through the typical courses of collection: hearing on assets, wage garnishment, and bank garnishment.

Matthew L. Winton, Oklahoma property owners association lawyer.

Resurrecting expired covenants

During the recent OBA webcast on Oklahoma homeowner association law, I was asked the following question:

Q - If a set of covenants for an older neighborhood has expired, how can the residents create new covenants to control structural restrictions in the future?

A - It may be that the covenants did not actually expire. Check the covenants for language such as, "These covenants shall run with the land for a period of 20 years, after which time they shall extend for successive 10 year periods." This language does not cause expiration, but rather continuation without interruption except if a certain percentage of owners amend the covenants.

If the covenants have in fact expired or terminated, the owners within the addition will have to vote to create a new set of covenants. These covenants will have to be approved by each owner whose property will be subject to those covenants. Their approval should be designated in writing before a notary and be filed in the local county clerk's office along with the new set of covenants.

Matthew L. Winton, Oklahoma property owners association attorney.

Real property covenants as contracts

During the recent OBA webcast on Oklahoma homeowner association law, I was asked the following question:

Q - Please explain more about how covenants are treated as contracts.

A - Courts have for a while determined that real property covenants are not void for public policy, do not violate the Constitution, and will generally be upheld as being supported by consideration. For a discussion of this, see, Lyons v. Wallen, 1942 OK 415 (HOWEVER - two points about the Lyons case and its similar strain of race cases: 1) the mere existence of  real property covenants limiting ownership based on race is thoroughly and utterly repugnant to me, and 2) thankfully, these cases have each been overruled by Shelley v. Kraemer). While the subject matter of race restrictions is a dead issue, the language in Lyons regarding the interpretation of real property covenants as contracts is alive and well. Parrish v. Flinn, 1996 OK CIV APP 104, para. 13.

Matthew L. Winton, Oklahoma homeowner association lawyer

Interest on assessments; attorney's fees

During the recent OBA webcast on Oklahoma homeowner association law, I was asked the following questions:

Q - A governing document says that interest may be charged for delinquent assessments, but does not specify an amount. What amount can be charged.

A - If the governing document is silent on an interest rate but does state that one may be charged on delinquent assessments, the default interest rate for written contracts is 6%. 15 OS 266

Q - Can attorney's fees be tacked on the amount claimed owed for late assessments in a demand letter before litigation or added to a lien when there is no litigation and attorneys fees are not provided for in the governing document?

A - If the declaration is silent on the issue of the HOA collecting attorneys fees as costs of collection, and no other governing document cites the ability of the HOA to collect these expenses, it is unlikely the HOA may properly collect these costs without them being liquidated by a court.

Matthew L. Winton, Oklahoma homeowner association law attorney