Attorney Fred O'Neal grew up in the Orlando, Florida area. He has practiced law in the State of Florida since 1978. After graduating from Yale University (Class of '75), O'Neal returned to his home state to attend the University of Florida law school.
Fred and his wife, Cathy, live in the Dr. Phillips area of Orlando with their dog Heathcliff. Cathy is a mental health counselor and Heathcliff is a 90+ pound, black, pit bull (Note: Please do not try to break into our house while Heathcliff's home. It will create quite a mess for my wife to clean up.) The O'Neal's have two adult children, who live in Dallas and Salt Lake City respectively. Recently, they welcomed their first grandchild, Alexandria. She is the light of their lives. Fred enjoys working in the yard, Gator football, and traveling abroad with his wife and their friends.
Why the HOA Slayer?
"Whatever happened to neighborliness?"
Those words were part of a judge’s ruling in a case I had years ago. Why the judge asked that question is because of the way a homeowner's association (“HOA”) had treated my clients in that case.
My clients, an attorney friend of mine and his wife, bought a house where their backyard fronted on a common area containing a walkway around a man made lake. My clients had small children and worried about one of those children accidentally getting out of the house and wandering into the lake. They asked permission from their HOA to build a fence around their backyard in order to keep that tragedy from happening. They felt confident of receiving permission since their covenants and restrictions (“C&R’s) allowed such a fence. Despite the C&R’s allowing such a fence, their HOA turned down my clients’ request, saying a fence would spoil other neighbors’ view of the lake. My clients, more concerned about the safety of their children than their neighbors’ view of the lake, put up a fence without the HOA’s permission.
The HOA, then, sued my clients, asking the court to order my clients to take down their fence. I got involved and the case eventually went to trial. After both sides finished their presentations, the judge ruled. In short, the judge read the HOA the riot act. He allowed my clients to have a fence and he assessed my attorney’s fees against the HOA, awarding me more than three times the amount I was asking for. The judge’s parting shot at the HOA came as he exited the courtroom, rhetorically asking: “Whatever happened to neighborliness?”
Had the judge stayed in the courtroom a little longer, I would have answered his question with two words: “Homeowners associations.”
I say that because, in my professional experience, “homeowners associations” have been the death of neighborliness. Growing up in the Orlando area in the 50’s and 60’s, I had no idea what a “homeowners association” was. Nor did nearly anyone else. In fact, there were less than 500 such associations nationwide back then.
Then came “forced busing,” leading to “white flight,” leading to the growth of suburbia, leading to large-scale tract developments, leading to the creation of common areas and amenities to help attract buyers to those developments, leading to the creation of HOA’s to take over ownership from the developer of those common areas and amenities, leading to mandatory HOA dues to operate and maintain the common areas and amenities, leading to liens being filed against those failing to pay those dues, leading to lien foreclosures, leading to people being put out of their homes for having failed to pay their HOA relatively small sums of money.
In addition to building common areas and amenities into large tract developments as sales tools, developers wrote C&R’s and created architectural review boards (“ARB’s”) in order to keep up the appearance of the homes they had already sold while trying to sell out the remaining lots in the development. The developer-written and developer-benefiting C&R’s then became written in stone for all time. As with the ownership of the common areas and amenities, the developer turned over enforcement of the C&R’s and control of the ARB’s to the HOA’s after selling out his last lot in the development.
What then happened, at least in Florida, often turned out to be a nightmare and, again, the death of neighborliness. More often than not, just the people who shouldn’t have power over their neighbors are the exact people who are attracted to positions on the board of directors ("BOD's") of the HOA’s. In Florida, to my knowledge, all such board of directors positions are unpaid. Therefore, if it’s not money which attracts these people to become HOA directors, what is it which attracts them to take on the responsibilities of an unpaid HOA director? In my experience, it’s “P-O-W-E-R.” Specifically, it’s power over your neighbors. In my experience in Florida, the person with the time and desire to become a HOA director is usually a retiree who is seeking to finally get the respect and recognition he always deserved (in his own mind), but never got.
Once such people take over the board of directors of an HOA, the nightmare begins. They enforce petty rules (Why? Because they can). They make residents jump through ridiculous hoops just to build an addition or otherwise improve their homes. They target perceived “troublemakers,” making life so difficult the “troublemakers” are forced to sell their homes and move out of the development. They hire lawyers who tell them whatever they want to hear, knowing that if they don't, they'll be fired and replaced by an attorney who will. They enlist toadies (or as one judge put it, “Granny Nazi’s.”) to scour the neighborhood for violations of the C&R’s or rules established by the BOD or ARB.
As Lord Acton put it, “Power tends to corrupt, and absolute power corrupts absolutely.”
A more apt description of what, in my experience, is at the root of the problem created by the existence of “homeowners associations” has never been spoken.
Years ago, Stanley Milgram, a professor at my alma mater Yale, conducted a controversial experiment on two groups of college students. In the experiment, one group was put in a position of power over the other. The end result of the experiment was that the group put in a position of power used that position to do things to the other group they never would have done on their own. Milgram said that the person in the position of power over others “comes to view himself as the instrument for carrying out another person’s wishes, and he therefore no longer sees himself responsible for his actions.” Put another way and to quote an obscure philosopher, “O the evil done in the name of the greater good.”
This, in my experience, is what happens to otherwise “good” people who assume positions of power over their neighbors in order to enforce the “greater good” of the subdivision. This is why, in my opinion, HOA’s need to end once the developer (who created the HOA for his own purposes and who wrote the C&R’s for his own purposes) has sold his last lot in a development and why the common areas and amenities need to, instead, be turned over to a local government owned and operated Municipal Service Taxing Unit or the like after that last lot is sold.
Put another way, in my opinion all HOA’s need to die.
Getting back to my growing up in Florida in the 50’s and 60’s, I remember the neighborhood I grew up in as being a mixture of retirees and working families. I remember when one of our elderly neighbors went into the hospital or had some physical problem and was unable to mow his own lawn, the teenage boys in the neighborhood took turns mowing his lawn – free of charge. And, when another neighbor lost his job or hit hard times and needed repairs on his home which he couldn’t afford, the dads of the neighborhood got together and did the repairs as a group – again, free of charge.
Unfortunately, those days are long gone (along with the concept of “neighborliness”).
What happens now if someone gets hurt and can’t mow his own lawn is a “Granny Nazi” will eventually come by with her ruler to measure the height of his grass. The “Granny Nazi” will report back to her obersturmfuhrer, who will pass her report on to one of the HOA’s fuhrers or directors, who will then assemble the other fuhrers of the association. The board will vote to impose a daily fine on the homeowner for having failed to keep his lawn properly cut. If the fine isn't paid, the association’s fuhrers will turn the matter over to the association’s attorney, who will then write a letter to the homeowner telling him he now owes not only the fine, but also $350 to the attorney for the attorney’s having to have his paralegal print out and mail the owner his standard, form "unpaid fine" letter. The form letter will also warn the owner that if he doesn’t timely correct the problem, pay the fine and pay the attorney $350, a lien will be filed against his house, the lien foreclosed, and the owner thrown out on the street.
My first case against an HOA was back in 1989. If you want to read about it, part of the history of the case is contained in an appellate opinion you can find online - Rogers v. Windmill Pointe Village Club Association, Inc., 967 F.2d 525 (11th Cir. 1992).
The Rogers case was one of several related cases I filed in Federal District Court in Orlando. The cases were against several HOA’s and their directors in a development called Williamsburg in Southwest Orange County. Later, the Civil Rights Division of the Justice Department filed several companion cases and both sets of cases were consolidated under the case name “In re: Fair Housing Litigation.”
First, a little background - Williamsburg was developed in phases by William Levitt, the developer who built Levittown on Long Island and Levittown in Pennsylvania. Levitt set up Williamsburg to be “all adult.” Specifically, he wrote an age restriction into the C&R’s of each phase or subdivision of Williamburg – i.e. no children under 16 were allowed to be permanent residents.
In 1989, when Congress added families with minor children as a protected category under the Fair Housing laws, it also created an exception for defined “housing for older persons.” As a result, the HOA’s in the various phases or subdivisions of Williamsburg recorded amendments to each of their sets of C&R’s to further restrict residency to only those households with at least one person 55 years of age or older, the purpose being an attempt to come within the “housing for older persons” exemption so as to continue to exclude minor children.
A business client of mine ran a property management company in Williamsburg. Part of her business included renting out homes. Because she was on the frontline of the question of whether Williamsburg could legally discriminate against families with children (she herself faced being sued if she refused to rent homes in Williamsburg to families with children), she asked me to give her a legal opinion as to whether Williamsburg qualified as “housing for older persons” under Section 3607. I researched the question, then gave her my opinion that it did not so qualify and that, therefore, she could not, legally, refuse to rent homes in Williamsburg to families with minor children.
When she followed my advice and made it known that she would rent homes in Williamsburg to families with children, a director of one of the homeowners associations paid her a visit. During that visit, he tried to persuade her to change her mind, arguing that if families with children were allowed to move into Williamsburg, the community would be overrun by “Blacks, Hispanics, and other undesirables.”
She was not persuaded by his argument and continued renting homes in Williamsburg to families with children. After refusing to change her mind, a boycott of her business was organized, trash was regularly dumped on her front lawn, and, at one point, a rifle shot was fired into her living room as she watched television.
Unfortunately, the boycott against her business was successful. Her business dried up and she was forced to sell.
In the end, justice prevailed. All but one of the HOA’s gave in and agreed to remove all age restrictions, as well as to pay significant reparations for their behavior. The one association who refused to drop their age restrictions went to trial. The end result was a verdict against that association and directors in excess of $400,000. In trying to collect that judgment, we ended up levying against and taking possession of the association’s clubhouse, the pool and the tennis courts.
That case started my interest in representing homeowners against homeowners associations. Though the steady money is on the other side (meaning, the steady money is in representing Goliath), I prefer to represent David. Maybe that’s because I grew up a skinny kid with glasses who got tired of being shoved into a locker. I’ve always hated bullies and always wanted to take them down a peg. As an adult and as a lawyer, I’ve had that opportunity by representing homeowners against bullies sitting on homeowner associations’ boards of directors.
While I continue to represent homeowners myself against homeowners associations, I also want to be a resource to younger attorneys who’ve decided to do the same. To that end, I’m glad to share materials and ideas with other attorneys in order to assist them in representing homeowners against homeowners associations - my thinking being that helping other attorneys around the state achieve positive case precedents can only help me continue to successfully represent homeowners against homeowner associations.
So, in summary, my motto and the intended motto of this website is “death to all HOA’s.” Put another way, “let’s make America’s neighborhoods great again.”