LEGAL CORNER: Can my HOA remove things from my property?

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QUESTION: Can a Home Owners Association enter my property and remove something that does not meet the rules of HOA? Do property owners have the right to protect their person and property? Is this a violation of the property owner's constitutional rights?

ANSWER: Provided that the Home Owners Association rules are not against public policy or in violation of some federal and state law, then the rules are valid. Home Owners Associations' community documents set out building restrictions, rules, and regulations, declarations, covenants and so much the more. These rules affect the properties maintained by the association but can be amended.

One of the purposes of Home Owners Association rules is to protect the aesthetic value of the property within the community and to keep the peace.

Persons who agree to the terms of the Home Owners Association rules and move into communities maintained by such associations agree to abide by the terms set forth in the community documents. This becomes their obligation. The terms agreed upon within the four corners of a contract are binding on the parties unless it's against public policy.

"Signatures to obligations are not mere ornaments. Additionally, the Court noted, "if a party can read, it behooves him to examine an instrument before signing it; and if he cannot read, it behooves him to have the instrument read to him and listen attentively while this is being done." Boullt v. Sarpy, 30, La.Ann. 494 at 495.

See:

Louisiana Homeowners Association Act; Louisiana Revised Statute 9:1141.1 - 1141.9

La. Civ. Code Art. 775-783 Building Restrictions.

La. Civ. Code Art. 2045-2046 Rules of Interpretation (obligations & contracts).

See Home Owners Association Rule (City of Sulphur): "The association has the right to enter any part of the property, including lots, to abate or remove, using force as may be reasonably necessary, any improvement, thing, animal, person, vehicle, or condition that violates the Community documents. In exercising this right, the Board is not trespassing and is not liable for damages related to the abatement".

QUESTION: Can I place a political candidate's yard sign on my own property as my right to freedom of expression under the First Amendment? Does the Home Owner Association have the right to tell me I cannot put up a sign to endorse a candidate?

ANSWER: Parties who contract to purchase homes in communities maintained by a Home Owners Association are obligated in accordance with the terms of that contract to abide by them. The terms within the four corners of the contract are what matters and as long as those terms are not contrary to controlling law or public policy, my friend, you are obligated to abide by them.

It's important to remember that individuals who voluntarily move into a community maintained by a Home Owners Association that prohibits erecting political signs in Louisiana are not forced to live there. As such, it's not a constitutional issue. See Cashio v. Shoriak, a Louisiana Supreme Court case which comports with that notion. Apart from the rules of interpretation, documents establishing building restrictions are subject to the general plan of Louisiana Civil Code governing the interpretation of juridical acts. Interpretation of a contract is the determination of the common intent of the parties.

See:

La. Civ. Code Art. 775-783 Building Restrictions.

La. Civ. Code Art. 2045-2046 Rules of Interpretation (obligations & contracts).

QUESTION: Can a parent place the care of his or her child in a testament (Will) that would become effective upon his/her death.

ANSWER: In Louisiana, a tutorship, what other states refer to as guardianship, describes the person who is legally responsible for the care of a minor child. For instance, tutors are often appointed when a child's parents divorce or when one parent dies.

Pursuant to Louisiana law, a Tutorship by Will (LA. Civil Code Art. 257) is the right of appointing a tutor, whether related or not. This right belongs exclusively to the parent who dies last. This is called tutorship by Will because generally it is given by testament. It may also be given by any declaration of the surviving mother or father executed before a notary and two witnesses. In general, the courts respect the wishes of the parents; however, should the Courts determine that the designated tutor is not in the best interests of the child, then those wishes may not be observed.

In order for Tutorship by Will to take effect, the tutor must be confirmed or appointed by the court and must qualify for office as provided by law. Tutors must accept appointment in order to become a tutor.

See:

La. Civ. Code Art. 257-262 (Tutorship by Will)

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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