Author: HOAGOV

"The Voice for HOA Constitutionality". I have been a long-term homeowner rights authority, advocate and author of "The HOA-Land Nation Within America" (2019) and" Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

Explaining HOA member irrationality – the BOD can do no wrong

My concern, since I was a teenager, was how do people make decisions and important choices, and why. It should be generally accepted today that we are facing a lot of harmful irrationality in many aspects of our society. It would seem, addressing the conduct, behavior and choices made by members of HOAs with respect to their HOA, and to the institution of HOAs in general, that the adage “My rationality is your irrationality and vice versa” is at play.  (What you consider rational I consider irrational, and what you consider irrational I consider rational).

My many years of activism in HOA reform legislation and research into this issue led me to the strong belief that the forces and dynamics of cult behavior[1] and authoritarianism[2] were the chief factors in the behavior of HOA members; the majority of whom seem to act in a highly irrational manner that was harmful to their own self-interests – the HOA can do no wrong.

Well, thank goodness Steven Pinker[3] makes some sense of rationality by delving into the functioning of the mind from a cognitive psychologists point of view.[4]  (It’s like trying to explain why the chicken crossed the road). Having a minor in psychology, I describe Pinker’s presentation as rather deep being directed more to  Rationality 201 or even higher, Rationality 301, using college level course structure. The “meat” of his book, for my purposes, comes in Chapter 10, What’s Wrong With People, when he comes down to the level of the average person.

From the very start Pinker makes it clear that the average person does not understand scientific investigation, the mathematics of probability, formal logic analysis, syllogisms, forecasting, etc..  He simply uses his gut feelings, his intuition,  which has always been mankind’s way of thinking.

Summarizing the author’s views, using annotations to simplify his learned arguments,

“To be sure, many superstitions originate in overinterpreting coincidences, failing to calibrate evidence against priors, overgeneralizing from anecdotes, and leaping from correlation to causation. [In more common terms, failing to vet the claims or to conduct  due diligence].

“Social media may indeed be accelerating their spread, but the [appeal] lies deep in human nature: people . . .  compose these stories, and it’s people they appeal to.

“The mustering of [reasons] to drive an argument toward a favorable conclusion is called motivated reasoning. The motive may be to [support] a favorable conclusion, but [also to] flaunt the [other sides] wisdom, knowledge, or virtue.

“People seek out arguments that ratify their beliefs and shield themselves from those that might disconfirm them. [Emphasis added].

“A large majority of Americans consider themselves less susceptible to . . .  biases than the average American, and virtually none consider themselves more biased.”

Study the above statements by the author carefully. It should become apparent that they describe the why and how the bulk of HOA members blindly obey their HOA board of directors.  They also explain the cult mentality of and the authoritarian appeal by the members (see Notes below).  It demonstrates that the mindset of the majority of members is believing that their HOA is heaven on earth and the next best thing to Mom’s apple pie; they do not want that belief disturbed and— unconsciously — naturally adopt motivated reasoning to preserve their image of a better community, a better world.

Please understand the difference between a real estate condominium and planned subdivision with its desirable amenities, landscaping, and oversight on contractual violations from the association that is the authoritarian, governing body also commonly referred as the HOA.  The former can be retained under the protection of Constitution now denied to the HOA members.

Applying Pinker’s findings, did the Arizona Supreme Court act irrationally in its denial to review the Tarter v. Bendt Petition[5] filed by the homeowner?

Notes

[1] See Cult behavior within HOA-Land,  Escaping the HOA cult environment,  A Plan Toward Restructuring the HOA Model of Governance.

[2] See HOA political dynamics: totalitarian democracy and  Authoritarianism in the HOA-Land Nation.

[3] Steven Pinker, Rationality: What It Is, Why It Seems Scarce, Why It Matters, Viking (2021).

[4] Cognitive psychology is the scientific study of the mind as an information processor. Information processing in humans resembles that in computers, and is based on based on transforming information, storing information and retrieving information from memory. Cognitive Psychology.

[5] See AZ supreme court denies hearing HOA case raising limited-purpose public figure doctrine.

Attorney abuse sanctioned: why not HOA attorneys?

This US district court opinion[1] sanctioned lawyers who

“abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry.”

This opinion imposed   

“monetary sanctions on nine Trump attorneys was that it was so long in coming  . . . made outlandish claims of election fraud in Michigan and other key battleground states, all of which were roundly rejected by every court that considered them.”

 What has this case to do with HOA attorney conduct? Plenty!  Just read the judge’s opinion (pages 1 – 5) and see why. The highly relevant opinion that can be applied to the conduct of many HOA attorneys:

“Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable. . . This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things.”

Be sure to read the footnotes that further explain the justifications!

Furthermore, in response to intervenor, the City of Detroit’s  charges of violations of Rule 11, civil court procedures, that requires the attorney to certify that the lawsuit was not for “an improper purpose”, was not “well-grounded in law, because the factual allegations could not support Plaintiffs’ claims.”   You may recall my arguments on violations of Rule 11[2] as well as Rules of Professional Conduct, “candor to the tribunal (telling the truth)[3].

This country needs  more cities and towns, like Detroit,  to stand up to attorney abuse of their obligations to the judicial system. We need state bar associations to pursue claims of abuse! We need to stop the attorney claims of “professional courtesy” who fail to raise these issues on behalf of their homeowner clients!

Notes

[1] Timothy King et al. v. Gretchen Whitmer et al.,  No. 2:20-cv-13134  Aug. 25, 2021).

[2] See HOA members fail to invoke their strongest weapon — Rule 11, representations to the court.  

[3] See in general, Is CAI’s ‘lack of candor to the tribunal’ intentional? and Misrepresentation: CAI comes with unclean hands.

 

In Kosor the NV appellate court upholds HOAs as public forums

In January of this year I posted the Nevada Supreme Court’s opinion on HOAs as public forums and the president as a limited-purpose public figure (NV supreme court upholds HOAs as public forums).  Last month on an appeal (Olympia v. Kosor, No. A-17-765257-C (Nev. Ct. App. 2021) from the remand, to  let the trial court hear the case on above issues, the appellate Court upheld the supreme courts findings and opinion.

The tremendous constitutional question of free political speech on issues of HOA governance was upheld. Finally! In doing so, the Court also held, citing several cases that [note 1],

  • [the HOA]  “is a quasi-government entity ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”
  • the Nevada Supreme Court has found the [the HOA] Board to be in the nature of a quasi-government entity largely paralleling the powers, duties, and responsibilities of a municipal entity and its meetings similar in function to a governmental body.
  • homeowners’ associations open meetings are public forums as such associations play ’a critical role in making and enforcing rules affecting the daily lives of [community] residents.’”  
  • “the HOA meetings at which Kosor made certain of the statements at issue were ‘public forums’ … because the meetings were ‘open to all interested parties, and … a place where members could communicate their ideas. Further, the…meetings served a function similar to that of a governmental body.”
  • In deciding this Motion, this Court also concludes Plaintiffs at least constitute limited-purpose public figures.
  • The test for determining whether someone is a limited public figure includes examining whether a person’s role in a matter of public concern is voluntary and prominent.” [as is the case with HOA boards and presidents]
  • the issues Defendant raised involve efforts to encourage homeowner participation in and oversight of the governance of Southern Highlands, “an inherently political question of vital importance to each individual and to the community as a whole.”

. . . .

Your HOA cannot stop your free speech if you argue Kosor! Just be careful about making harsh, accusatory statements that violate elements of defamation that will  defeat your free speech.

NOTE 1. Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205, 214 (2000); Cohen v. Kite Hill Cmty. Ass’n, 191 Cal. Rptr. 209, 214 (1983); Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 91 (2002).

Fair HOA voting at risk in CA – SB 391

In April of this year I urged support (CCHAL in Calif. stands up to CAI) for CCHAL’s (Center for California Homeowner Association Law) opposition to California’s SB 391 that would allow online vote counting with no meaningful homeowner oversight. Another defeat of fair elections as expected in a community claiming to be democratic. At that time, Marjorie Murray CCHAL President, wrote:

“’The Community Associations Institute (CAI) and the property managers (CACM) are still “stretching the truth’ about SB391 (to put it politely.) CAI and CACM keep publishing ads saying  ‘SB391 gives HOAs the right to hold teleconference meetings during an emergency.’ This is FALSE.”

Yesterday Murray wrote in her urgent call to action email,

“SB391 is a dangerous bill – it’s being marketed by the association industry as one that “engages homeowners in governance” when what it really does is strip owners of the right to transparency and accountability in elections.

“SB391 IS NOW ON THE SENATE FLOOR AND WILL BE VOTED ON NEXT WEEK.  BE READY TO PHONE YOUR SENATOR TO URGE ‘NO ON SB391/MIN!”  Please PHONE, don’t email.”

Get with it Californians! Your voice is needed as legislators pay attention to the widespread  voice of homeowners affected by the bill.

The writing is on the wall for HOA reforms

Although the Arizona Supreme Court has not yet decided to hear Tarter v. Bend (CV 21-0049), my 44 page Pro Se amicus curiae brief is a matter of public record, regardless.  The case about a defamation suit by the HOA president, also an attorney and a limited-purpose public figure, raised constitutional issues of public speech with respect to questions of HOA governance. 

Selected excerpts follow.

As with the issue in Dombey (Dombey v. Phoenix Newspapers, Inc) . . . failing to present the question of Tarter’s status as a possible public figure denied the jury from considering the issues of protected free speech on public issues.

Kosor (NV) was sued on the basis of his criticism  and distribution of a pamphlet and letter at a board meeting seeking a seat on the board of directors.

“Because we conclude that each of Kosor’s statements was “made in direct connection with an issue of public interest in a place open to the public or in a public forum,” we reverse the district court’s decision to the contrary and remand for further proceedings consistent with this opinion.”

The impetus behind this view can be laid to the heavy lobbying of state legislators, judges, the public and the media by the Community Associations Institute (CAI). From its 2016 white paper,

“Most legislators do not thoroughly understand common-interest communities or who their patchwork legislation is actually protecting. . . . Legislative responses to individual constituents contribute to community associations being perceived as over-restrictive micro-governments focused on covenant enforcement.”

In response to my Arizona Supreme Court pro se amicus brief in Gelb v. DFBLS (CV-10-0371-PR) CAI attorney Jason Smith wrote,

“It is clear from the that the amicus curiae [referring to me] simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.”

[I called to the Court’s attention a question of a SLAPP lawsuit against Brendt.]  The issue of an HOA SLAPP lawsuit against a member is in the interest of general public and of statewide importance, and also of national concern, the impact on community associations is certainly substantial. This Court should, sua sponte, consider Tarter’s legal action as a HOA politically motivated strategic lawsuit  against member participation.

I urge the Court to apply the long overdue correction  of  Plessy v. Ferguson by Brown v. Bd of Education to the long overdue and needed corrections to the unconstitutional HOA legal scheme.  As with Brown, America’s culture and environment has changed dramatically from 1964’s Homes Association Handbook and the formation in 1973 of Community Associations Institute (CAI) to deal with rising HOA problems and constitutional concerns after only 9 years.