Author: HOAGOV

Over the years, several homeowners “bill of rights” have been proposed, the latest being proposed by David A. Kahne and published by the AARP Policy Institute. Homeowner rights advocates debate the provisions of these homeowner’s bill of rights, and the industry supporters — the lawyers, CAI trade group, and HOA management groups — have proposed their own version of a bill of rights. In the midst of all these proposals, one advocate wrote, “There is only one Bill of Rights, the US Bill of Rights”. I ask, “What is the real bill of rights?”

The US Bill of Rights only pertains to that document called the US Constitution. These Rights are AMENDMENTS to the Constitution, period. The Constitution applies to the federal government, and to state entities only by virtue of the 14th Amendment to the US Constitution. They do not apply to private organizations, such as HOAs, unless the US Supreme Court has declared them so.

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Donie Vanitzian’s new book is what Hyatt’s book is to HOA attorneys, except it tells what the laws are and how to use them for the benefit of the homeowner, not the association. No longer will the legal field be flooded with the views of those who wish to perpetuate the status quo while offering “handout” legislation to placate HOA reformers. No longer will the media be forced to carry just the views of the establishment on “How to be a good homeowner and not cause problems with your HOA.”

Now, the laws restricting and obligating the duties and responsibilities of boards are explained for the homeowner’s benefit, covering not only condo/HOA statutes, but corporation, contract and tort laws. Here are few examples from the book:

“Proving a director’s breach of good faith may be difficult, but not impossible. . . . For anyone to take notice, the description must be graphic [detailed], strong and unrelenting. . . . No one law delineates the fiduciary duty of a homeowners association board of directors.” p. 267.

“The burden of proof is on the association [regarding fines] to establish that they followed proper procedures. Unless the association can unequivocally meet the burden, the fine should be challenged as illegal and all monies obtained as a result should be returned to the titleholder [property owner].” p.319.

“Methodically documenting the case against monetary fines or punitive measures is important because the board’s decision must stand the test of reasonableness if and when challenged. Watch for board actions that appear to exceed the scope of the director”s duties, or for those punitive measures against association members under which the board has no authority to do so.” p. 320.

“Where reserve funds do exist, boards should not withdraw those reserves, however temporarily, for purposes other than those for which the funds were intended. . . . The litigant owner arguing that his board has acted in bad faith and breached its fiduciary duty to titleholders and association by mismanaging assets, should consider initiating discovery specifically aimed at the association’s reserve studies or reports.” p. 376.

While the book focuses on the California statutes, the Davis-Stirling Act, the materials are applicable to other states. Just adapt the materials to the particular statues, if any, or apply the appropriate precedents.

California Common Interest Developments – Homeowner’s Guide, Donie Vanitzian, (The Expert Series, Thomson – West 2006). 1060 pages.

We are a nonlawyer legal services provider. We provide general information about the law. I am not a lawyer nor am I employed by a lawyer. I do not provide legal advice or opinion regarding your legal rights. You should consult a competent attorney or other expert for specific information and advice regarding the law. For more information, see AHLIS below.

Donie Vanitzian’s new book is what Hyatt’s book is to HOA attorneys, except it tells what the laws are and how to use them for the benefit of the homeowner, not the association. No longer will the legal field be flooded with the views of those who wish to perpetuate the status quo while offering “handout” legislation to placate HOA reformers. No longer will the media be forced to carry just the views of the establishment on “How to be a good homeowner and not cause problems with your HOA.”

Now, the laws restricting and obligating the duties and responsibilities of boards are explained for the homeowner’s benefit, covering not only condo/HOA statutes, but corporation, contract and tort laws. Here are few examples from the book:

“Proving a director’s breach of good faith may be difficult, but not impossible. . . . For anyone to take notice, the description must be graphic [detailed], strong and unrelenting. . . . No one law delineates the fiduciary duty of a homeowners association board of directors.” p. 267.

“The burden of proof is on the association [regarding fines] to establish that they followed proper procedures. Unless the association can unequivocally meet the burden, the fine should be challenged as illegal and all monies obtained as a result should be returned to the titleholder [property owner].” p.319.

“Methodically documenting the case against monetary fines or punitive measures is important because the board’s decision must stand the test of reasonableness if and when challenged. Watch for board actions that appear to exceed the scope of the director”s duties, or for those punitive measures against association members under which the board has no authority to do so.” p. 320.

“Where reserve funds do exist, boards should not withdraw those reserves, however temporarily, for purposes other than those for which the funds were intended. . . . The litigant owner arguing that his board has acted in bad faith and breached its fiduciary duty to titleholders and association by mismanaging assets, should consider initiating discovery specifically aimed at the association’s reserve studies or reports.” p. 376.

While the book focuses on the California statutes, the Davis-Stirling Act, the materials are applicable to other states. Just adapt the materials to the particular statues, if any, or apply the appropriate precedents.

California Common Interest Developments – Homeowner’s Guide, Donie Vanitzian, (The Expert Series, Thomson – West 2006). 1060 pages.

We are a nonlawyer legal services provider. We provide general information about the law. I am not a lawyer nor am I employed by a lawyer. I do not provide legal advice or opinion regarding your legal rights. You should consult a competent attorney or other expert for specific information and advice regarding the law. For more information, see AHLIS below.

1. Who cannot support, in principle at least, the David A. Kahne proposed Bill of Rights published by the AARP Public Policy Institute?

2. A clear statement of the purpose of the AARP proposal is contained in its forward written by the Institute:

The purpose of this publication is to outline a key set of ten principles . . . that states can follow when developing laws and regulatory procedures for common interest communities.

The guiding philosophy behind this publication is to promote healthy interaction between residents and their associations ….

3. If you cannot support all the ten points in principle, to what do you object? What principles would you like to add? Delete?

4. The introductory pages leading to these principles cannot really be argued against. While they could be stronger, they are a good statement of policy to guide the legislators. Offer your improvements.

See the complete commentary at AARP

1. Who cannot support, in principle at least, the David A. Kahne proposed Bill of Rights published by the AARP Public Policy Institute?

2. A clear statement of the purpose of the AARP proposal is contained in its forward written by the Institute:

The purpose of this publication is to outline a key set of ten principles . . . that states can follow when developing laws and regulatory procedures for common interest communities.

The guiding philosophy behind this publication is to promote healthy interaction between residents and their associations ….

3. If you cannot support all the ten points in principle, to what do you object? What principles would you like to add? Delete?

4. The introductory pages leading to these principles cannot really be argued against. While they could be stronger, they are a good statement of policy to guide the legislators. Offer your improvements.

See the complete commentary at AARP