Homeowner association

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In the United States, a homeowner association (HOA) is a private association formed by a real estate developer for the purpose of marketing, managing, and selling homes and lots in a residential subdivision. It grants the developer privileged voting rights in governing the association, while allowing the developer to exit financial and legal responsibility of the organization. Typically the developer will transfer ownership of the association to the homeowners after selling a predetermined number of lots. Generally any person who wants to buy a residence within the area of a homeowners association must become a member, and therefore must obey the governing documents including Articles of Incorporation, CC&Rs (Covenants, Conditions and Restrictions) and By-Laws, which may limit the owner's choices. Most homeowner associations are incorporated, and are subject to state statutes that govern non-profit corporations and homeowner associations. State oversight of homeowner associations is minimal, and it varies from state to state. Some states, such as Florida and California, have a large body of HOA law. Other states, such as Massachusetts, have virtually no HOA law. Homeowners associations are commonly found in residential developments since the passage of the Davis-Stirling Common Interest Development Act in 1985.

The fastest-growing form of housing in the United States today are common-interest developments (CIDs), a category that includes planned unit developments of single-family homes, condominiums, and cooperative apartments. Since 1964, HOAs have become increasingly common in the United States. The Community Associations Institute trade association estimated that in 2010, HOAs governed 24.8 million American homes and 62 million residents.

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History

HOAs were first established by land developers in the United States in the mid-19th century. Their growth was limited, however, until the 1960s, when several factors led to a period of rapid national growth. Large-scale suburban residential development was encouraged by the Federal Housing Authority and the Urban Land Institute, as the construction of highways had made commuting to cities from outside areas easy. There was an increasing social preference to control and preserve architectural quality in developments. The amount of readily available land declined near business centers. Rising construction costs made large-scale development and savings more attractive; and federal mortgage insurance rules were changed to include cooperatives and condominiums, as well as such planned developments controlled by HOAs.

Early covenants and deed restrictions were established to control the people who could buy in a development. In the early postwar period after World War II, many were defined to exclude African Americans and, in some cases, Jews, with Asians also excluded on the West Coast. For example, a racial covenant in a Seattle, Washington, neighborhood stated, "No part of said property hereby conveyed shall ever be used or occupied by any Hebrew or by any person of the Ethiopian, Malay or any Asiatic race." In 1948, the United States Supreme Court ruled such covenants unenforceable in Shelley v. Kraemer. But, private contracts effectively kept them alive until the Fair Housing Act of 1968 prohibited such discrimination. Some argue that they still have the effect of discriminating by requiring approval of tenants and new owners.

According to Donald R. Stabile, the explosion in the number of CIDs (many of which were based on homeowners' associations) was strongly influenced by a 1964 publication (TB 50) by the Urban Land Institute. This technical bulletin was funded by the National Association of Home Builders and by certain federal agencies: the FHA, the United States Public Health Service, the Office of Civil Defense, the Veterans Administration, and the Urban Renewal Administration.

In 1963 the FHA had approved federal home mortgage insurance exclusively for condominiums or for homes in subdivisions which had a qualifying homeowner association. The rationale was that developers wanted to get around density laws. The effect, however, was to divert investment from multi-family housing and home construction or renovation in the inner cities. This accelerated the middle-class exodus to the suburbs and into common-interest housing. The rapid expansion of federally subsidized highways under federal programs made access to new areas easy.

In the 1970s, a growing scarcity of land for suburban development resulted in escalating land costs, prompting developers to increase the density of homes on the land. In order to do this while still retaining a suburban look, they clustered homes around green open areas maintained by associations. These associations provided services that formerly had been provided by municipal agencies funded by property taxes. Residents of such development also had to pay their local taxes. Accordingly, local governments began promoting subdivision development as a means of improving their cash flow.

In an effort to control water pollution, the U.S. Clean Water Act of 1977 required that all new real estate developments had to detain storm water so that flow to adjoining properties was no greater than the pre-development runoff. As a result, nearly all residential developments had to construct detention or retention areas to hold excess storm water until it could be released at the pre-development flow level. Since these detention areas serve multiple residences, they are almost always designated as "common" areas. This requirement was a reason for developers to establish a homeowner association. Although these areas can be placed on an individual homeowner's lot, eliminating the need for an association, nearly all U.S. municipalities now require these areas to be part of a common area to ensure an entity, rather than an individual or the municipality itself, has maintenance responsibility. Real estate developers have frequently established homeowner associations to maintain such common areas. Having established the HOA, the developers have expanded their scope, giving them authority to regulate changes to residences, landscaping and maintenance requirements, color of houses, etc., a variety of other requirements and amenities that the developers believe will make their project more desirable to the market..

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Industry

The Community Associations Institute (CAI) is a trade association of individuals and businesses that sell supplies or services to HOAs, and is dominated by lawyers and homeowner association managers. The CAI does not represent homeowners associations. It lobbies the legislatures of states that have HOAs in order to promote legislation beneficial to its members. It opposes laws that would harm its members.

Authority

For purposes of this article, the term "homeowners association" or "association" refers to a mandatory homeowners association, in which the homeowner's property interest is the real property (dirt) and improvements thereon. Condominiums and cooperatives are considered by most states to be a different form of community association because the property interest is different. The authority of a homeowners association is determined by relevant state statutes and the "governing documents". The governing documents usually include the covenants, conditions, and restrictions (CC&Rs) and the corporate documents (articles and bylaws) referenced by the CC&Rs and usually attached as exhibits. They may also include board-enacted rules as authorized (expressly or implicitly) by the CC&Rs.

The association is structured as a private corporation and subject to the state's corporation statutes and/or specific association statutes. It is incorporated by the developer prior to the initial sale of houses, and the CC&Rs are recorded when the property is subdivided. The "governing documents" usually include the CC&Rs, the corporate documents (articles and bylaws) as referenced in the CC&Rs, and board-enacted rules and regulations as authorized (expressly or implicitly) by the CC&Rs. In these situations, the governing documents "run with the land". This means that the governing documents "touch and concern" the land, and there is no mutual agreement between the seller and subsequent buyers regarding their terms. In essence, these are "adhesion contracts"; they are a condition of ownership and a prospective buyer must take it or leave it.

If an owner sells the encumbered real property (and improvements thereon), the seller ceases to be a member of the association and the new owner automatically becomes a member. All members of a mandatory homeowners association must pay assessments to and abide by the association's governing documents.

Limitations to enforcement of CC&Rs

The governing documents may be limited by public policy, and state or federal statutes. However, in some cases because of the constitutional prohibition against "impairment of contract," a covenant provision may "trump" a statute. This occurs where a later-enacted statute adversely affects a substantive contractual provision that existed before the statute was enacted. Predictably, there is also an exception to the exception; a contractual provision that is rendered illegal by later enacted state or federal law cannot be constitutionally protected. For example, a developer-drafted covenant giving the developer sole rights to amend the CC&Rs was declared unenforceable as a matter of public policy in at least one state, where the developer attempted to amend years after he had sold all the property. That state's legislature later codified that public policy. Racial exclusions covenants have been ruled to be unconstitutional and unenforceable. These examples provide good reason for an association to obtain the advice of competent legal counsel.

Board of directors

The association's board of directors is composed initially of developer-appointed members, then of a mix of appointees and of homeowners elected at an annual meeting. Their responsibility is to maintain the common areas and enforce the governing documents. The mix changes to solely homeowners as the percentage of land/home ownership shifts away from the developer. The board of directors makes decisions regarding the association, including management of the association's finances, protecting the association's real and intangible assets, and enforcing the governing documents. Boards of directors have a legal responsibility to members, which is known as fiduciary duty. Violation of that duty may result in liability for individual directors. The association will often adopt an ethics code for the board members to ensure they act ethically and in accordance with their responsibilities.

Association management

Many homeowners associations hire management companies to handle the governing duties of the association. Management services are typically divided into three categories: financial only, full management, and on-site management. Financial services typically cover administration of bank accounts, bookkeeping, assessment collection, and the HOAs budget. Full management typically includes the financial services plus help with board meetings (keeping minutes, agendas, etc.), board elections, and maintenance duties (obtaining contractor bids, etc.). On-site management typically includes all of the full management services plus direct assistance to homeowners with an assigned manager to the HOA. Education requirements for managers varies from state to state, with some requiring certification under all circumstances and others having a more lenient approach. For instance, while California does not require HOA managers to be certified, it does require that managers meet certain educational requirements to claim certification.

Powers

Associations provide services, regulate activities within a development, levy assessments, and may, if authorized by CC&Rs or a state legislature, impose fines. Unlike a municipal (public) government, they are not deemed "state actors" subject to constitutional constraints. A homeowners association can enforce its actions through the threat and levying of fines and private legal or equitable actions seeking damages, foreclosure or injunction, under civil law. Homeowners have the ability to defend against such actions, and are usually entitled to sue associations for contractual or statutory violations, or for a legal determination as to the enforceability of a provision in the CC&Rs corporate documents or board-enacted rule. However, they cannot sue for civil rights violations under 42 U.S.C. 1983 because associations are private corporations and not public governments.

Association boards may appoint corporate officers or officers may be elected directly by the membership (depending on the jurisdiction). The officers and the board may create committees, such as an "architectural control committee", a pool committee, a neighborhood watch committee, and others, as authorized by the CC&Rs or state statutes.

Assessments

Mandatory homeowner associations can compel homeowners to pay a share of common expenses, usually proportionate to the ownership interests (either by unit or based on square footage). These expenses generally arise from the operation and maintenance of common property, which vary dramatically depending on the type of association. Some associations operate little or no common property, and the expenses relate solely to enforcement of use restrictions or assumed services. Others are effectively private towns, with elaborate amenities including private roads, street lights, services, utilities, commonly owned buildings, pools, and even schools. Assessments paid to homeowner associations in the United States amount to billions of dollars a year, but are not classed as property taxes.

When determining what the monthly/annual assessment should be, it is important to consider what funds are required. There should always be a minimum of two funds: an operating fund and a reserve fund. The operating fund is used to pay for the operating expenses of the association. A reserve fund is used to pay for the infrequent and expensive common area assets maintenance, repair and replacement costs. The reserve fund is crucial for reducing the chances of a special assessment (mentioned in the risks below). Obtaining a reserve study is recommended to help determine and set the reserve contribution rate which is included in the regular monthly assessment.

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Benefits and disadvantages

For homeowners

The benefits that a homeowner association (HOA) provides to homeowners vary depending on the specific regulations and practices of the HOA. Individuals may also benefit more or less depending on their political standing in the association and the degree to which the community's decisions match their preferences. In the 1994 court case Nahrstedt v. Lakeside Village Condominium Assn., the California Supreme Court noted:

"...Owners associations 'can be a powerful force for good or for ill' in their members' lives. Therefore, anyone who buys a unit in a common interest development with knowledge of its owners association's discretionary power accepts 'the risk that the power may be used in a way that benefits the commonality but harms the individual.'"

Benefits to homeowners may include maintenance and management services, provision of recreational amenities such as pools and parks, insurance coverage, enforcement of community appearance standards which may lead to higher property values, and the opportunity for members to plan development in accordance with community values.

Disadvantages to homeowners may include the financial burden of association fees, punitive fines, and costs of maintaining appearance standards; restrictions on property use and personal autonomy; and the potential for mismanagement by the board, including the possibility of arbitrary or heavy-handed enforcement of rules.

For the municipality

Many municipalities have welcomed HOAs in the belief that they may reduce operational costs for the local government. Since the homeowners sometimes pay for roads, parks, and other services within the development, the local government may believe it can gain revenue from property taxes from owners in a development that costs the municipality little or nothing.

A 2009 study of California HOAs suggested that this assumption was partially true, but that the overall effect of HOAs on municipalities was mixed. While HOAs did offset the costs of city governments to a small degree, they also reduced overall tax revenues because their members, insulated from the larger community, tended to vote down taxes that the city required to fund services. This led to an overall decrease in government expenditures that disproportionately affected those citizens who did not reside in an HOA.

As the study noted,

"...critics of private governments claim that HOAs erode support for public institutions. Those who join can bypass the public system: homeowners who fear crime do not have to vote for tax dollars to attack the root of the problem; they can build a gate to keep the criminals out. Opponents maintain that the erosion of public support, reflected at the ballot box, leads to further deterioration of municipal services and reductions in local revenues. Nonmembers experience a reduction in public service levels and may be worse off. At the extreme, homeowners associations may contribute to sentiments of secession and withdrawal from the public sector."

For real estate developers

Real estate developers establish HOAs in the belief that they can contribute to the developer's ability to build and sell units profitably. Providing common amenities may enable developers to build at a higher density, if the local government has encouraged such results. In addition, by relieving municipalities of the costs of road and utility maintenance, developers may obtain more favorable terms. Ordinarily, the developer retains some control over the HOA until a specified number of units are sold, and the covenants, conditions, and restrictions of the HOA are put in place to further this goal.

The potential disadvantage to a developer is that they may be exposed to liability to the HOA for poor construction, misleading marketing, or other problems. In these cases, the HOA may sue the developer.

Regulations

Homeowner associations have been criticized for having excessively restrictive rules and regulations on how homeowners may conduct themselves and use their property. Some maintain that homeowner association leaders have limited financial incentive to avoid indulging in rigid or arbitrary behavior, and unless people begin to leave in droves, it will have little effect on the value of a board member's home.

In The Voluntary City, published by the libertarian Independent Institute, Donald J. Boudreaux and Randall G. Holcombe argue that homeowners associations do not necessarily have advantages over traditional governments. They note that the association's creator, e.g. a developer, has an incentive to set up a government structured in such a way as to maximize profits and thus increase the selling price of the property. If a certain decision would increase the selling price of certain parcels and decrease the selling price of others, the developer will choose the option that yields his project the highest net income. This may result in suboptimal outcomes for the homeowners.

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Undemocratic

Some scholars and officials of the AARP have charged that, in a variety of ways, HOAs suppress the rights of their residents. Due to their nature as a non-governmental entity, HOA boards of directors are not bound by constitutional restrictions on governments, although they are de facto a level of government. If a homeowner believes a breach of duty has occurred by the board of directors, they may run for the board at the next election or, in extreme cases, sue the association at personal expense.

Corporation and homeowner association laws provide a limited role for HOA homeowners. Unless either statutory law or the corporation's governing documents reserve a particular issue or action for approval by the members, corporation laws provide that the activities and affairs of a corporation shall be conducted and "all corporate powers shall be exercised" by or under the direction of the board of directors. Many boards are operated outside of their state's non-profit corporation laws. Knowledge of corporate laws and state statutes is essential to properly managing an HOA.

Once notified by a homeowner, attorney or other government official that an HOA organization is not meeting the state's statutes, the boards have the responsibility to correct their governance. Failure to do so in certain states, such as Texas, can result in the levy of misdemeanor charges against the board and open the board (and HOA) to potential lawsuits to enforce state laws of governance. In some instances, a known failure to rectify the board's governance to meet the state's statutes can open the board's members to personal liability as most insurance policies indemnifying the board members against legal action do not cover willful misconduct.

HOAs establish a new community as a municipal corporation. Voting in an HOA is based on property ownership, Only property owners are eligible to vote. Renters are prohibited from directly voting the unit, although they can deal directly with their landlords under their lease contract, since that is the party who has responsibility to them.

Additionally, voting representation is equal to the proportion of ownership, not to the number of people. The majority of property owners may be absentee landlords, whose values or incentives may not be aligned with the tenants'. Homeowners have challenged political speech restrictions in associations that federal or state constitutional guarantees as rights, claiming that certain private associations are de facto municipal governments and should therefore be subject to the same legal restrictions.

Of great concern is the fact that several court decisions have held that private actors may restrict individuals' exercise of their rights on private property. A recent decision in New Jersey held that private residential communities had the right to place reasonable limitations on political speech, and that in doing so, they were not acting as municipal governments. With few exceptions, courts have held private "actors" are not subject to constitutional limitations -- that is, enforcers of private contracts are not subject to the same constitutional limitations as police officers or courts.

In 2002, the 11th Circuit Court of Appeals, in Loren v. Sasser, declined to extend Shelley beyond racial discrimination and disallowed a challenge to an association's prohibition of "for sale" signs. In Loren, the court ruled that outside the racial covenant context, it would not view judicial enforcement of a private contract as state action, but as private action, and accordingly would disallow any First Amendment relief.

In the Twin Rivers case, a group of homeowners collectively called The Committee for a Better Twin Rivers sued the association, for a mandatory injunction permitting homeowners to post political signs and strike down the political signage restrictions by the association as unconstitutional. The appeals court held the restrictions on political signs unconstitutional and void, but the appeals court was reversed when the New Jersey Supreme Court overturned the Appellate courts decision in 2007 and reinstated the decision of the trial court.

In some HOAs, the developer may have multiple votes for each lot it retains, but the homeowners are limited to only one vote per lot owned. That has been justified on the grounds that it allows residents to avoid decision costs until major questions about the development process already have been answered and that as the residual claimant, the developer has the incentive to maximize the value of the property.

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Board misconduct

The New Jersey Department of Community Affairs reported these observations of Association Board conduct:

"It is obvious from the complaints [to DCA] that that [home]owners did not realize the extent association rules could govern their lives."

"Curiously, with rare exceptions, when the State has notified boards of minimal association legal obligation to owners, they dispute compliance. In a disturbing number of instances, those owners with board positions use their influence to punish other owners with whom they disagree. The complete absence of even minimally required standards, training or even orientations for those sitting on boards and the lack of independent oversight is readily apparent in the way boards exercise control"

Overwhelmingly ... the frustrations posed by the duplicative complainants or by the complainants' misunderstandings are dwarfed by the pictures they reveal of the undemocratic life faced by owners in many associations. Letters routinely express a frustration and outrage easily explainable by the inability to secure the attention of boards or property managers, to acknowledge no less address their complaints. Perhaps most alarming is the revelation that boards, or board presidents desirous of acting contrary to law, their governing documents or to fundamental democratic principles, are unstoppable without extreme owner effort and often costly litigation.

Certain states are pushing for more checks and balances in HOAs. The North Carolina Planned Community Act, for example, requires a due process hearing to be held before any homeowner may be fined for a covenant violation. It also limits the amount of the fine and sets other restrictions.

California law has strictly limited the prerogatives of boards by requiring hearings before fines can be levied and then reducing the size of such fines even if the owner-members do not appear. In California, any rule change made by the board is subject to a majority affirmation by the membership if only five percent of the membership demand a vote. This part of the civil code also ensures that any dissenting individual who seeks a director position must be fully represented to the membership and that all meetings be opened and agenda items publicized in advance. In states like Massachusetts, there are no laws to prohibit unilateral changes to the documents by the association board.

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Double taxation

Most homeowners are subject to property taxation, whether or not said property is located in a planned unit development governed by a homeowners association. Such taxes are used by local municipalities to maintain roads, street lighting, parks, etc. In addition to municipal property taxes, individuals who own private property located within planned unit developments are subject to association assessments that are used by the development to maintain the private roads, street lighting, landscaping, security, and amenities located within the planned unit development. A non-HOA property owner pays taxes to fund street repairs performed by the city; the HOA property owners pay these same taxes, but without the same benefit, since the local government will not maintain the streets to their homes. Thus the HOA property needs to pay a second time, to privately maintain the street.

The proliferation of planned unit developments has resulted in a cost savings to local governments in two ways. One, by requiring developers to build 'public improvements' such as parks, passing the cost of maintenance of the improvements to the common-interest owners; and two, by planned-unit developments being responsible for the cost of maintaining infrastructures that would normally be maintained by the municipality.

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Financial risk for homeowners

In some U.S. states (such as Texas) a HOA can foreclose a member's house without any judicial procedure in order to collect special assessments, fees and fines, or otherwise place an enforceable lien on the property which, upon the property's sale, allows the HOA to collect otherwise unpaid assessments. A proposed constitutional amendment in Texas would limit the power of HOAs in such matters. A case in point involves a soldier who, in 2008, was informed his fully paid-for $300,000 home in Frisco, Texas, had been foreclosed on and sold for $3,500 by his HOA over unpaid dues of $800 while he was serving in Iraq. In 2010, the case was settled and the soldier regained ownership of the home. Federal laws protecting military personnel from civil action may have been his defense; however, a gag order prevents details from being known.

Other states, like Florida, require a judicial hearing. Foreclosure without a judicial hearing can occur when a "power of sale clause" exists in a mortgage or deed of trust.

A self-published report by a professor at the University of Washington disputes the claim that HOAs protect property values, stating, based on a survey of Harris County, Texas (which had an unusual legal regime regarding foreclosures): "Although HOA foreclosures are ostensibly motivated by efforts to improve property values, neither foreclosure activity nor HOAs appear linked with the above average home price growth."

Homeowners association boards can also collect special assessments from its members in addition to set fees, sometimes without the homeowners' direct vote on the matter, though most states place restrictions on an association's ability to do so. Special assessments often require a homeowner vote if the amount exceeds a prescribed limit established in the association's by-laws. In California, for example, a special assessment can be imposed by a board, without a membership vote, only when the total assessment is five percent or less of the association's annual budget. Therefore, in the case of a 25-unit association with a $100,000 annual operating budget, the board could only impose a $5,000 assessment on the entire population ($5,000 divided by 25 units equals $200 per unit). A larger assessment would require a majority vote of the members.

In some exceptional cases, particularly in matters of public health or safety, the amount of special assessments may be at the board's discretion. If, for example there is a ruptured sewer line, the Board could vote a substantial assessment immediately, arguing that the matter impacts public health and safety. In practice, however, most boards prefer that owners have a chance to voice opinions and vote on assessments.

Increasingly, HOAs handle large amounts of money. Embezzlement from associations has occurred occasionally, as a result of dishonest board members or community managers, with losses up to millions of dollars. Again, California's Davis-Stirling Act, which was designed to protect owners, requires that boards carry appropriate liability insurance to indemnify the association from any wrongdoing. The large budgets and expertise required to run such groups are a part of the arguments behind mandating manager certification (through Community Association Institute, state real estate boards, or other agencies).

In 2006, the AARP voiced concern that homeowners associations pose a risk to the financial welfare of their members. They have proposed that a homeowners "Bill of Rights" be adopted by all 50 states to protect seniors from rogue HOAs.

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Limits to powers

The Supreme Court of Virginia has ruled that a HOAs power to fine residents is an unconstitutional delegation of police and judicial power in the case: Shadowood Condominium Association et al., v. Fairfax County Redevelopment and Housing Authority - June, 2012.

Prior to the Telecommunications Act of 1996, HOAs could limit or prohibit installation of satellite dishes. Many communities still have these rules in their CC&Rs, but after October 1996, they are no longer enforceable. With a few exceptions, any homeowner may install a satellite dish of a size of one meter or smaller in diameter (larger dishes are protected in Alaska). While HOAs may encourage that dishes be placed as inconspicuously as possible, the dish must be allowed to be placed where it may receive a usable signal. Additionally, many HOAs have restrictive covenants preventing a homeowner from installing an OTA (over-the-air) rooftop antenna. These restrictions are also no longer enforceable, except in some instances. For example: the antenna may be installed at any location unless it imposes upon common property. Also, the antenna must be of a design to receive local, not long-distance signals and must not extend any higher than twelve feet above the top roof-line of the home, unless an exception is granted by the HOA due to extenuating terrestrial interference.

In Florida, state law prohibits covenants and deed restrictions from prohibiting "Florida-Friendly Landscaping," a type of xeriscaping. In spite of the law, at least one homeowner has faced harassment and threat of fines from a homeowners association for having insufficient grass after landscaping his yard to reduce water usage. Similar legislation was introduced and passed by the legislature in Colorado but was vetoed by governor Bill Owens. Residents in Colorado have continued to call for regulation to protect xeriscaping, citing HOAs that require the use of grasses that consume large quantities of water and threaten fines for those who do not comply with the covenants.

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Alternative to CIDs

An alternative to CIDs is the multiple-tenant income property (MTIP), known in the United Kingdom as housing estates. CIDs and MTIPs have fundamentally different forms of governance. In a CID, dues are paid to a nonprofit association. In an MTIP, ground rents are paid to a landowner, who decides how to spend it. In both cases, certain guidelines are set out by the covenant or the lease contract; but in the latter scenario, the landowner has a stronger incentive to maximize the value of all the governed property in the long term (because he is the residual claimant of it all) and to keep the residents happy, since his income is dependent on their continued patronage. These factors are cited as arguments in favor of MTIPs.

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References

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Homeowner association

Tuesday, April 3, 2018