Houston attorney Tony Buzbee found himself in a war of words with his Homeowners Association — the River Oaks Property Owners. For some reason, the HOA isn’t very keen on his authentic World War II Sherman tank.
In Buzbee’s words, “This particular tank landed at Normandy, it liberated Paris… and ultimately went all the way to Berlin. This is a piece of American history. But for this type of vehicle, we would not have won the war.”
Buzbee purchased the tank last year for $600,000. It took a year to get it to Houston from its overseas location. Buzbee plans on permanently keeping the tank on his East Texas ranch, but it arrived in Houston at a time when he couldn’t get it to the ranch.
He had to do something with the tank, so he parked it on the public street in front of his River Oaks residence.
River Oaks is a pretty swanky neighborhood, and a fully functional tank is a surprising thing to see parked against the curb. It seems to be drawing quite a bit of attention, and most people think it’s pretty cool. But it drew some unwanted attention from his HOA.
Houston’s KHOU-TV station picked up the story, and their story and interview received national attention.
Buzbee received a threatening letter from the HOA, claiming that the tank, parked on a city street, “impedes traffic and poses a safety hazard,” and causes “serious concern for neighbors.”
The letter also points to a provision in the subdivision’s Deed Restrictions that restricts extended parking of mobile homes, trailers, boats and recreational vehicles on the River Oaks lots and adjoining streets.
KHOU-TV took issue with the statement that the tank was causing concern for Buzbee’s neighbors. “But finding those concerned neighbors wasn’t easy. Everyone we spoke with loved it.”
No shrinking violet
Buzbee is no slouch. He is a highly respected and successful litigator — and a former Marine Recon officer who retired as a captain. He is not one to shy away from a fight.
“It’s not violating any ordinance, but for some reason it makes the homeowners association uncomfortable. If you’re offended, lighten up,” Buzbee said. “The problem is there is no action they can take. They can ticket it or they can try to tow it, but the truth is, unless I decide to move it, it’s not going anywhere.”
Can Buzbee’s HOA really do anything about his Sherman tank? I asked an expert friend, Rob Fotheringham, this very question.
Fotheringham and his partner founded Vial & Fotheringham LLP 35 years ago as a small Portland-area general-practice law firm. The firm now has over 50 lawyers in five offices in five Western states. Their HOA practice fueled that growth.
Fotheringham said HOAs do have a lot of power. Their “charters,” the CCRs or Deed Restrictions, typically grant the board very broad rule-making authority, so long as the rules don’t contradict the charter.
Fotheringham said some people are unhappy when they learn that, after having bought into a community that has an HOA, they have lost a lot of their independence.
I apologized if I was disparaging his practice area — and then offered that I’ve always seen HOAs as “the work of the devil.”
Fotheringham laughed and retorted, “That’s why you won’t see any of our lawyers living in a community that has one!”
Fotheringham said that Buzbee’s HOA could write a rule that prohibits tanks from being parked on the street. But they may have to adopt that rule before they can actually do anything about Buzbee’s tank.
The Deed Restrictions definitely apply, but it’s hard to envision a Sherman tank as a “recreational vehicle” or a “mobile home,” and it certainly isn’t a boat or a trailer. It may not fit into the categories spelled out in the deed restrictions, and there is undoubtedly no existing HOA rule against tanks.
So the HOA board will have to adopt a specific rule regarding tanks. Since Buzbee says that he plans to move the tank in a couple of weeks, his situation may end up being moot.
But no matter how unreasonable — or even stupid — you might think they are, HOA rules shouldn’t be ignored. Fotheringham said HOA boards have the power to levy fines, and unpaid fines almost always create liens against your property with a super priority.
If the fines aren’t paid, the HOA can foreclose its lien and sell your property.
HOA fines typically start out fairly small — often with an opportunity to correct the violation before anything further occurs. If not paid, the fines typically grow larger with time. The law requires fines to be reasonable in amount, and owners must be afforded some level of due process rights. If the fines are extreme or unfairly imposed, owners are typically able to take the matter to court resolution.
Are cars like tanks?
You might well ask, “What does this have to do with cars?” Obviously, mischief is not limited to Sherman tanks. Cars can be targets as well.
A friend related a story about being at a car event with his Ferrari 308 when a fellow participant walked up and introduced himself as a neighbor.
After pleasantries, the neighbor told him, “Look, I don’t mean to put you on the spot, but I’m on the board of our HOA. The board was looking to come down on you because you’re always speeding through the neighborhood. I suggested that before they do that, I might talk to you individually and try to avoid any hassles.”
My friend was aghast by the insinuation that he was menacing the neighborhood streets, denied it, and suggested that perhaps people were just misbelieving that he was speeding just because his aftermarket exhaust was rather loud. He promised to be careful about his speed — as well as the noise.
Could the HOA do that? Fotheringham is doubtful — the streets are public roads, governed by city ordinances and state law. An HOA board can’t enforce those laws, only its own rules.
And an HOA can’t adopt rules that apply to public roadways. However, Fotheringham points out that some neighborhood roads are actually private property, owned by the HOA as common areas. In those situations, the HOA can control speed limits and driving habits.
“Noise is an easier issue,” Fotheringham said. “Noise control is an extremely common topic for HOA control, and greater leeway would be afforded in that regard. Loud exhausts could easily be regulated.”
You can also run into HOA problems when you try to add more garage space. Architectural review committees can easily dislike (and scuttle) your Garage Mahal project or your house garage addition. It’s easy for such construction to “conflict” with the “character” of the neighborhood.
Why so rigid?
Why are HOAs so rigid about stuff? Don’t they have a sense of humor?
I’ve always thought that there are two types of people on HOA boards:
Those who want to be on the board so they can be in charge and tell other people what to do.
And then there are those who don’t really want to be on the board but serve out of self-defense.
That’s why I would never buy a house in an area ruled by an HOA. I’d have to become one of the latter because I couldn’t stand to be hassled by the former. Not that I’m that much of a rebel — it’s just that there is little tolerance for diversity in thought or style.
Fotheringham sees that. HOAs are all about uniformity and stability — all keyed to their strong sense of preserving property values. Personality, flexibility and individual style all lose out.
Kind of makes me think of the old “Stepford Wives” movie. ♦
JOHN DRANEAS is an attorney in Oregon. His comments are general in nature and are not intended to substitute for consultation with an attorney. He can be reached through www.draneaslaw.com.