Based on my HOA Common Sense, here’s a graphic of the 6 substantive HOA defects as I see them. Please feel free to use provided proper credentials are included.
HOA Vortex
Author: gks256
UCIOBORA: an attempt at justice for HOA members
According to CAI, 9 states have adopted UCIOA (Uniform Common Interest Ownership Act), 14 the UCA (Uniform Condominium Act, and 1 state, Pennsylvania, the UPCA (planned community act)?[i] Why is it that only 1 state, Kansas,[ii] has adopted the Uniform Common Interest Ownership Bill of Rights Act (UCIOBORA) in 2008?[iii]
The Bill of Rights Act was released as a separate act independent of the basic and initial UCIOA, and from the above state adoptions we can see why. Apparently, except for Kansas, none of the states care for a Bill of Rights for HOAs!
Why then did the BORA come to pass with only one “buyer”? Allow me to provide some background as to why BORA came about. In the years preceding its 2008 appearance, there was an outcry for a homeowners’ bill of rights with yours truly, among others, playing an important role in demanding homeowner rights. Among the demands were Texas attorney David Kahne who co-wrote the AARP Member Bill of Rights in 2006[iv]; and yours truly who argued for homeowner rights to CLRC that was conducting a rewrite of California’s CID act, the Davis-Stirling act (2005 – 2008).[v]
CAI is an avid supporter of UCIOA even to this day, probably because it’s based on the HOA legal scheme and structure introduced in the 1964 Homes Association Handbook.[vi]
Let’s see what pro-HOA state legislators and the national lobbying entity may have felt quite disturbed about its covenants. (A hint is given when ULU chose to make it free-standing).
UCIOBORA excerpts:
“The Need for a Free-Standing Home Owner Bill of Rights. . . . The reason is that each of these complex Acts has its detractors who have historically blocked adoption of these Acts in any state. . . . [And] of the difficulty drafters in the States may encounter in integrating any new adoption of the existing Uniform Acts with the laws that may already exist in a particular state. For these reasons, ULC promulgated a free-standing and relatively short Uniform Act that addresses all of the ‘association versus unit owner’ [hints at similarity of ‘management vs employees’] issues touched on during the drafting of the 2008 UCIOA amendments.[vii]
(5) shall establish a reasonable method for unit owners to communicate among themselves and with the executive board concerning the association;
(6) may suspend any right or privilege of a unit owner that fails to pay an assessment, but may not: (B) suspend a unit owner’s right to vote (Section 8(a), powers of HOA). (a) In the performance of their duties, officers and members of the executive board appointed by the declarant shall exercise the degree of care and loyalty to the association required of a trustee (Section 9, Executive Board).
(b)(5) determine the qualifications, powers, duties, or terms of office of executive board members (Section 9).
(a)(4) specify the powers the executive board or officers may delegate to other persons or to a managing agent (Section 10, Bylaws);
(Section 11, Owners meeting). (c) The notice for any meeting must state the time, date, and place of the meeting and the items on the agenda, including: (1) a statement of the general nature of any proposed amendment to the declaration or bylaws;
(f) The declaration or bylaws may allow for meetings of unit owners to be conducted by telephonic, video, or other conferencing process, if the alternative process is consistent with Section 12(g).
(g) Except as otherwise provided in the bylaws, meetings of the association must be conducted in accordance with the most recent edition of Roberts’ Rules of Order Newly Revised.
(Section 12, Executive Board meetings). (g) Unless the declaration or bylaws otherwise provide, the executive board may meet by telephonic, video, or other conferencing process if: (1) the meeting notice states the conferencing process to be used and provides information explaining how unit owners may participate in the conference directly or by meeting at a central location or conference connection; and (2) the process provides all unit owners the opportunity to hear or perceive the discussion and to comment as provided in subsection (d).
(Section 14, Voting). (d) Unless prohibited or limited by the declaration or bylaws, an association may conduct a vote without a meeting. In that event, the following requirements apply: (3) The ballot must set forth each proposed action and provide an opportunity to vote for or against the action.”
OK, where are we? The sampling above is not in the same spirit and intent as our constitutional and properly named, Bill of Rights.
“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”
On the other hand, UICOBORA addresses the governing documents as if they were the HOA’s constitution in its attempt to bring more fairness and justice to homeowner issues and complaints. The Uniform Law Commission (ULC) had good intents. However, the two BOR are like apples and oranges. UCIOBORA should be more aptly named Homeowners Rights and Responsibilities. Instead appears to look as if it were supporting a genuine BOR for HOA homeowners based on our Constitution.
Furthermore, don’t get confused with CAI’s Rights and Responsibilities for Better Communities,[viii] which consists of “ought to” advice and prescriptions for better communities, with nothing that you can go to court on. Excerpts:
“Homeowners have the right to: Honest, fair and respectful treatment by community leaders and managers, Receive all documents that address rules and regulations governing the community association,
“Homeowners have the responsibility to: Read and comply with the governing documents of the community, Treat association leaders honestly and with respect, Vote in community elections and on other issues, Pay association assessments and charges on time.
“Community leaders have the right to: Respectful and honest treatment from residents., Receive support and constructive input from owners and non-owner residents;
“Community leaders have the responsibility to: Conduct open, fair and well-publicized elections, Conduct open, fair and well-publicized elections, Encourage events that foster neighborliness and a sense of community.”
The good intentions of the Uniform Law Commission were found unacceptable by all the states except Kansas. Nationally, we have UCIOA, the Uniform Common Interest Act replacement to America’s Constitution with a deceptive bill of rights for homeowners as contained in UCIOBORA. Yet, HOA-LAND[ix] continues to grow and represents a secession from the Union without a shot being fired. These subdivisions and condos portrayed as “communities” function outside the US Constitution and have substituted their governing documents as the community’s supreme law of the land.
by: George K. Staropoli
References
[i] “CAI State Advocacy, Uniform Acts.”
[ii] “Kansas Legislative Research Department”, Common Interest Statutes, March 2018).
[iv] AARP HOA Bill of Rights, David Kahne.
[v] See California CLRC proposal for state assistance to HOAs, Homeowner Rights are an important issue for California’s CLRC, CLRC proposes changes to HOA laws without a bill of rights. Also involved in the quest for a CA Bill of Rights were Donie Vanitzian (see Staropoli letter to CLRC) and Elizabeth McMahon (“In 1997, Elizabeth McMahon of AHRC filed a Homeowners Bill of Rights with the California Law Review Commission looking into revising California’s HOA statutes); both are no longer with us.
[vi] See Analysis of The Homes Association Handbook.
[vii] Supra n. iii, Prefatory Note, page 1.
[viii] CAI’s Rights and Responsibilities.
[ix] Definition of HOA-LAND: HOA-Land is a collection of fragmented independent principalities within America, known in general as “HOAs” that are separate local private governments not subject to the constitution; and collectively constitute a nation within the United States.
Rigged HOA elections create a false democracy
Long ago in 1994 Professor McKenzie wrote, “HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[i] There is no better example of HOA independence than prejudiced HOA election procedures. In 2013 I wrote,
“HOA members have been repeatedly told that they can change things in their HOA by voting for board members and even by changing the governing documents; that HOAs are democratic because members can vote to make these changes happen. . . . Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy.[ii]
CAI, on the other hand, maintains in its Public Policy statement that,
“Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community.[iii]“
Let me give a prime example of far these pro-HOA procedures can go to deny members a fair and just voting process, one that subtly favors the HOA Board. In this large scale HOA in Arizona with over 9,000 homes and some $20 million in revenues, amendments to the CC&RS and bylaws are needed to be approved by 67% of the membership.
The governing documents have an unusual, non-standard voting procedure that allows for “consent” by the members, in addition to an actual vote, which constituts a vote and are counted in the approval requirement. Members just have to fill out a form and submit it. Surprisingly, in contrast to the public voting procedures, this procedure contains
- no mention of a “cutoff date,” the date that the Consent Form needed to be received by the election committee. A start date, date form first distributed, is mentioned and currently is 5 months ago.
- no opportunity for a “no” vote, just the wording that not submitting the form would be seen as choosing “ not to consenting to the documents.”
- A biased, pro-HOA “advertising” on the form itself without any mention of opposing views. “ Moving Forward to the Future.” Other advocacy by the Board is prominent.
- An annual membership meeting scheduled some 6 months after the ability to submit a Consent Form, but the agenda was silent on actual voting for these amendments instead of submitting a Consent Form, or announcing the results of the “vote.”
This method of voting by the HOA would not pass muster in the public realm. So much for democracy in action. This election process is rigged in favor of approval, is unjust and negates any choice by the members who may wish to submit a NO vote. It’s a no-lose approach for the Board since the Form does not allow for NO votes! It would never fly under the public realm’s fair elections requirements.
In Wittenburg v. Beachwalk HOA,[iv] the California appellate court held that a board is engaged in advocacy when it supported and urged an approval vote in its materials and communications. The Court’s view was that opposing parties must be given equal opportunity to advocate against the proposition, which is being denied in the above instance, by not allowing a no vote and the open-ended voting process of form submissions with only YES votes.
The Court held that the relevant statute was in the public interest and it sought to
“provide substantial new voting protections” to members of homeowner associations designed to “guarantee that basic democratic principles are in place during elections,” which had previously been “contaminated by manipulation, oppression and intimidation of members, as well as outright fraud.”[v]
Yet, overwhelmingly, according to the CAI surveys, HOA members standby their HOA even though it operates outside of constitutional protections and the laws of the land. They seem to believe that, like a King, their board can do no wrong; that, contrary to James Madison’s view that “If angels were to gvern men, neither internal nor external controls on government would be necessary,” their board must consist of angels.
The HOA legal scheme as set forth in the governing documents and pro-HOA state laws, does not contain a fundamental principle of our constitutional system of government: checks and balances. The HOA board basically has, for all practical purposes, a free hand to function as an authoritarian government.
By: George K. Staropoli
References
[i] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.
[ii] “Democratic Elections No. 5,” George K. Staropoli, HOA Common Sense: rejecting private government.
[iii] Section 8 in An Introduction to Community Association Living (2006).
[iv] Wittenburg v. Beachwalk HOA, 217 Cal.App.4th 654 (2013).
[v] Id.
Civic responsibility vs. HOA member responsibility.
To whom does a member of an HOA owe his loyalty? To the constitutional government or to the HOA? I raise this question because of the general apathy and strident defense of their HOA by many HOA members.
The inescapable conclusion is that the vast majority of the members do not care if they are governed by private, contractual corporations functioning outside constitutional government. When faced with solid evidence of violations of the law or governing documents they get highly defensive of their HOA board of directors. It seems quite obvious that these individuals have forsaken their civic responsibilities and duties for HOA member responsibilities and rights.
Now I am sure that these individuals are good people believing that they are doing good for their community – the HOA – and therefore good for the people in the town, state and country. With this belief, they do not understand that putting the HOA first damages their duties to the community at large, the town, the state and the country.
Let me explain why. As citizens[i] of our state and country we have civic responsibilities that consist of our “actions and attitudes associated with democratic governance and social participation.”[ii]
“The importance of civic responsibility is paramount to the success of democracy and philanthropy. By engaging in civic responsibility, citizens ensure and uphold certain democratic values written in the United States Constitution and the Bill of Rights. Those values or duties include justice, freedom, equality, diversity, authority, privacy, due process, property, participation, truth, patriotism, human rights, rule of law, tolerance, mutual assistance, self-restraint and self-respect.[iii]“
The Preamble to the Constitution says it clearly: “to establish justice”, “promote the general welfare,” and “secure the blessings of liberty.” And what does the HOA “constitution,” the CC&Rs, stand for? Essentially, maintaining property values and enforcing the governing documents. Since it is a contract, we can only look to the authority and responsibilities as stated in the contract, and we cannot ascribe any part of the Preamble objectives to the CC&Rs. Under the contract they have no such obligations to be just, fair and a good community member to oppose wrong-doings by the Board.
The choice then falls onto each member to choose to follow his conscience either as a public citizen or as a HOA member citizen. CAI’s public policy on Rights and Responsibilities says nothing about being a good public citizen. “Good associations preserve the character of their communities, protect property values and meet the established expectations of property owners and homeowners.”[iv] A member who defends his HOA when it has clearly violated the law or governing documents is rejecting his obligations as a public citizen.
Why does this occur? Well, for several reasons including indoctrination into a view of HOA-Land totally devoid of constitutional issues and its values, principles and objectives. This indoctrination creates a false mindset that helps to create a person’s self-image.[i] Human nature being as it is, a person’s self-image will protect the person from harm. Your self-image is basically who you are, what you stand for and what you believe in. It can only change when a new self-image is adopted and substituted for the old image, making the person “whole” again — a good person again.
Another aspect of human nature that plays on the member’s self-image is the need for approval and validation (the member’s feelings, attitudes and opinions are worthwhile). The HOA indoctrination program plays to these needs by setting the criteria for approval – homeowners must obey the rules and maintain community spirit – and validation – praise for attending meetings and hearings and supporting the HOA Board.
Understand that the members can change their misguided view that their HOA is governed by angels and can therefore do no wrong. All that they must do is to listen to the facts and evidence that would be seen as wrongful behavior if conducted with respect to non-HOA issues.
Good citizens, as stated herein, will recognize the need for change to maintain a healthy self-image and restore constitutional government within HOA-Land.
References
[i] “Fostering a Positive Self-Image,” ClevelandClinic.org. “Self-image is the personal view, or mental picture, that we have of ourselves. Self-image is an “internal dictionary” that describes the characteristics of the self”; “is a product of learning”; “is important because how we think about ourselves affects how we feel about ourselves and how we interact with others and the world around us”; is not permanently fixed. Part of our self-image is dynamic and changing. We can learn to develop a healthier and more accurate view of ourselves”.
Good citizens, as stated herein, will recognize the need for change to maintain a healthy self-image and restore constitutional government within HOA-Land.
By: George K. Staropoli, GKS256@nyu.edu.
References
[i] “Civic Responsibility,” Jennifer Self, Learningtogive.org, “A citizen is ‘a person owing loyalty to and entitled by birth or naturalization to the protection of a state or union.’ Citizenship means ‘a productive, responsible, caring and contributing member of society.'”
[ii] Id., “The importance of civic responsibility is paramount to the success of democracy and philanthropy. By engaging in civic responsibility, citizens ensure and uphold certain democratic values written in the founding documents and uphold certain democratic values written in the founding.”
[iii] Supra n. i.
[iv] “Rights and Responsibilities for Better Communities,” CAI Public Policy 2011. Feb. 19,2019.
[v] “Fostering a Positive Self-Image,” ClevelandClinic.org. “Self-image is the personal view, or mental picture, that we have of ourselves. Self-image is an ‘internal dictionary’ that describes the characteristics of the self’; ‘is a product of learning’; ‘is important because how we think about ourselves affects how we feel about ourselves and how we interact with others and the world around us’; is not permanently fixed; Part of our self-image is dynamic and changing. We can learn to develop a healthier and more accurate view of ourselves”.
Regulatory agency enforcement of HOA violations
There has always been a secondary mechanism for enforcing civil law violations that homeowners have been told very little about. In fact, the national ‘educational’ business trade organization has fought against this method from time immoral.
The enforcement of civil law can be found in such state (and federal) regulatory agencies as real estate, banking, medical, registers of contractors, bars, hair salons, etc. Except for HOAs. Why not?
While state legislatures have intentionally avoided explicit delegation of authority to HOAs, their abdication of their constitutional responsibilities by a do nothing, hands-off attitude is an implicit delegation of authority. This failure to protect HOA members has caused much harm and injury to individual homeowners, and has caused much divisiveness and disharmony within HOA communities. The various state HOA acts are devoid of any effective supervision, control, or oversight and should be declared unconstitutional. A regulatory HOA agency solves both the constitutional and civil enforcement defects.
Read the complete paper at HOA regulatory enforcement.
See Model AZ regulatory agency bill and AZ Model regulatory HOA agency fact sheet.
HOA Constitutional Government 