Gregg Harcus removed birdhouses after being told they violated homeowner association rules in the Eden Prairie development where he lives. The dispute didn’t stop there.

Richard Sennott, Star Tribune

Whistleblower: Eden Prairie birdhouse dispute costs $650

  • Article by: MARY LYNN SMITH
  • Star Tribune
  • November 26, 2011 - 11:08 PM

For years, the simple cedar birdhouses that Gregg Harcus hung in the trees behind his town home in Eden Prairie attracted wrens and other small birds.

Now they've landed him $650 in legal fees.

The homeowner's association that oversees Bluff Country Village Townhomes, where Harcus has lived with his wife since 2002, notified Harcus that his birdhouses violated association rules and had to be removed.

Harcus, who resigned in protest from the association's board of directors earlier this year, was surprised that his birdhouses ruffled someone's feathers. He said they have been in place for at least seven years and no neighbors have complained. Harcus said the violation notice came amid a simmering conflict between him and the new management company.

Harcus requested a hearing to find out why the birdhouses had suddenly become a problem. Initially, he indicated he would be accompanied by his attorney, but he later changed his mind and told the board he wouldn't bring a lawyer. When he arrived at the hearing, he was surprised to find that the association had an attorney present.

Weeks later, he was angered when the association billed him for its attorney's fees.

In a written statement from a company that manages the property, the board declined Whistleblower's request for an interview.

"The Board is choosing at this time not to participate in this article," said Holly Johnson of Community Development. "Just to be clear, the Board of Directors was well within its rights to have an attorney present."

Twin Cities attorney Daniel Greenstein, who represents more than 300 homeowner associations in Minnesota but is not involved in this case, said most associations won't bring in an attorney unless the board is attempting to enforce a rule or deal with a homeowner who is challenging a fine.

It would be "a bit of a stretch" for the association to hire a lawyer and pass on the legal fees unless there was some threatening action about a lawsuit or legal action that was previously communicated by this homeowner, Greenstein said.

After Harcus made his case for keeping his birdhouses, the board deliberated privately and denied his request. Harcus subsequently removed the birdhouses.

"I figured life was too short to keep fighting this," he said. "I thought the whole thing was over."

And then he got the board's legal bill for $650.

"I was so outraged I could hardly talk," Harcus said. "They certainly can charge [a homeowner] reasonable attorney fees to enforce the rules. But that wasn't an enforcement hearing. It was just a hearing to express my views and try to get them to change their minds."

Harcus e-mailed the management company, pointing out that he was never told in advance about the board's attorney or that he would have to pay the fee. Harcus believes the attorney's presence at the board was meant to intimidate him. He also threatened to organize a homeowners movement against the board and the management company.

Harcus said he never saw such pettiness when he was on the board.

"We would get firm with a few of them for punching holes in their roofs or building ugly decks," Harcus said. "But we never went after people."

Oftentimes, a situation like this is caused by a breakdown in communication, according to attorney Patrick Burns, who represents other homeowners associations.

"We're talking birdhouses here," Burns said. "I can't think of one reason why an attorney needed to be present for an appeal like that. ... What it probably came down to was a failure to communicate and it could be both ways."

In her written statement, Johnson noted that the board hired an attorney only after Harcus indicated he planned to bring his own lawyer. But Johnson agreed that Harcus wound up "attending the hearing alone."

Burns said Harcus is taking a big risk if he refuses to pay the legal bill or takes the matter to court. The board could send the bill to a collection agency or even begin foreclosure proceedings, he said. Whatever happens, Burns said, Harcus' legal fees would only increase.

"All of a sudden your $650 bill actually becomes a $3,000 to $5,000 bill that's assessed against the property," he said.

Burns said such disputes point out the trade-offs that come with living in a development governed by a homeowners association.

"You give up certain things like freedom to do what you want with your property in exchange for someone taking care of your property," Burns said. "Boards have a tremendous amount of power and authority to govern their associations. I counsel wisdom with my clients. You have to be nice to people. You've got to be flexible."

Mary Lynn Smith • 612-673-4788

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