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.

Toward a democratic HOA subject to the Constitution

The news is good lately as several state legislatures have and are dealing with substantive HOA reform legislation that confronts the HOA legal structure as un-American. California’s SB 323 passed into law last year amid the hostility of CAI; Florida’s HB 623 is in the legislative process of becoming law; and Arizona’s SB 1412 is just starting out in the legislature.

The substantive amendments to state laws are:

SB 323 (CA) — seeks to introduce fair elections procedures for HOAs, addressing one of my 6 substantive defects in the HOA legal scheme.  Deborah Goonan’s excellent discussion of this bill[1] brought to my attention a second defect in the HOA legal scheme, the lack of enforcement of the law.

“A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association. . . . “A member who prevails in a civil action to enforce the member’s rights . . . the court may impose a civil penalty of up to five hundred dollars ($500) for each violation.”

HB 623 (FL) —

“This provision will amend 718 F.S. so any bylaws, or reasonable rules or regulations of the association which diminish or infringe upon any right protected under the Fourteenth Amendment[2] to the United States Constitution or Art. 384 II of the State Constitution and would be void and unenforceable without further action of the association. However, the provision states that the association may record a notice in the public records of the county in which the condominium is located evidencing its intention to not enforce such provision, it would foolhardy for them to do so. This has been overdue in our quest for achieving equal rights.”[3]

Much to my surprise Eric Glazer, of FL HOA & Condo Blog and host of HOA Condo Craze, warns of danger if HB 623 is made law.[4]

To simplify, the 14th Amendment made The Bill of Rights (The first ten amendments to the Constitution) applicable to the states.  So, this law basically says no provision of your governing documents can infringe upon the rights you have under the Bill of Rights.  All of you know several of these rights such as the right to free speech, freedom of assembly, and freedom of religion.

There is plenty of law out there that says when you move into an association, you may give up some of the rights you may ordinarily have in your private home. You do this by agreeing to be bound by the governing documents.

SB 1412 (AZ) — seeks to prohibit HOAs and condos from restricting political free speech. Members are permitted to associate, meet, discuss, show signs regarding political activity.

“NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS, AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT A UNIT OWNER’S ABILITY TO PEACEFULLY ASSEMBLE AND USE PRIVATE OR COMMON ELEMENTS OF THE CONDOMINIUM IF DONE IN COMPLIANCE WITH REASONABLE RESTRICTIONS FOR THE USE OF THAT PROPERTY ADOPTED BY THE BOARD OF DIRECTORS. AN INDIVIDUAL MEMBER OR GROUP OF MEMBERS MAY ORGANIZE TO DISCUSS OR ADDRESS PLANNED COMMUNITY BUSINESS, INCLUDING BOARD ELECTIONS OR RECALLS, POTENTIAL OR ACTUAL BALLOT ISSUES . . . .”

I cannot emphasize that these bills have a very large umbrella covering many issues found at fault in HOAs. They provide the legal authority supporting many, many complaints, even those where the homeowner is just not happy with the way the HOA is run. In these cases, the HOA hasn’t really violated any law of the governing documents per se. The complaints should their focus on the lack of fair elections to remove wayward boards, or due process and equal protection of the law violations. The 14th Amendment applies!

What is needed is the strong support for the champions of these bills, Sen. Bob Wieckowski in CA, Senator D. Farnsworth in Arizona, and Representative Jason Shoaf in Florida. The California bill made law was achieved, in my opinion, with the help of the strong support of Marjorie Murray of CCHAL.[5] They fought and are fighting the system — state legislatures do not favor HOA reforms.

References

[1] “California HOA elections bill update (March 2019)”, Deborah Goonan, Independent American Communities.

[2] The 14th Amendment. Section 1 state prohibitions against laws denying due process of law and the equal protection of the laws, and abridging the privileges and immunities of citizens.

[3] Comment number 6, CCFJ.net, Milena Macias, Esq. (Feb. 4, 2020).

[4] “A PROPOSED AMENDMENT TO THE LAW THAT HAS DANGER WRITTEN ALL OVER IT”, Florida HOA & Condo Blog, Eric Glazer, Esq. (Feb. 3, 2020)

[5] Center for California Homeowner Association Law.

 

 

 

 

Podcast: 2008 FL Robaina HOA hearing

This video from Rep. Robaina’s HOA hearing in 2008 takes you back to the way things were then  – the open hostility.  Some 13,000 views on YouTube. One of several of my excerpts from the public files.

PODCAST UPDATE:  I will be posting podcasts with the post title leading with “Podcast.”  If you have signed up for email updates (see left panel) you will receives as normal.  As an alternative, you can receive podcast posts by means of RSS FEEDs (Real Simple Syndication).  Your email program — Outlook or Chrome has an option to read  posts as a part of the email program —  just another folder called, RSS FEEDS.  My podcasts will appear there as if they were just another email.  To use this approach, right-click on RSS Feeds on my page and paste link into your reader as instructed.

 

 

HOA Podcasting trial

The use of video by Raelene Schifano, a great idea, made me investigate podcasting that was something I had wanted to do for some time. I’ve started a trial run beginning with this post; all posts that I designate a podcast will go to al subscribers automatically.

I will start with oldies but goodies from my earlier videos produced from Florida and Arizona legislative videos, then reading of select Editorials/Commentaries for audio podcasts.  They will be 10 minutes or less.

Now, understand that I am an Italian and we have, I believe, a genetic disposition to mumble.

Let’s see how it goes.  I may have to edit this post as it’s my first attempt.

Take the HOA political free speech poll

I’m pleased to see that Deborah Goonan has followed up on my Jan. 29 post regarding Arizona’s SB 1412 bill that restores and protects fair elections and campaigning by members.   Glad to see that she also asked AZHOC, Dennis Legere,  to get involved. Good work Deborah!

BUT we need more active involvement from other groups within and without Arizona.  You are needed to create a bandwagon of support so your state will get the message!  And that also calls for taking the free speech poll today, on left panel, which will demonstrate to your legislature that there is a serious need for such a bill in your state.  Completely private, I don’t get name or email address.

sen_Gov

nation-coverRK

 

CAI reacts to loss of HOA civility

CAI’s new venture into creating harmony by means of a pledge of civility is astounding! I don’t know where to begin. It says be civil, but follow our Rights and Responsibilities program.

Understand that CAI claims some 347,000 HOAs throughout America and a membership of some 40,000. Doing some simple arithmetic – now follow along – that means at most CAI has a miniscule 11.5% presence in HOA-Land. And they dare speak of majority rule when its lobbying before state legislatures affects some 88.5% non-involved HOAs.

Here’s what the CAI Civility Pledge and Civility Pledge Form have to say, in part,

By adopting the Community Association Civility Pledge, community association boards commit to embracing principles that establish a framework for effective community conversations.

The Community Association Civility Pledge was created by CAI’s College of Community Association Lawyers in recognition of the critical responsibility of a board leader to facilitate community conversation about important issues.  

5. We also encourage all residents to review Community Associations Institute’s (CAI) Rights and Responsibilities for Better Communities.

These commitments are guiding principles. They are not governing documents or legally enforceable and do not give rise to penalties if they are not followed.

​ Note that all 5 items on page 1 of the Civility Pledge Form begins with “We.” The form is addressed to the BOD and asks the BOD to sign the pledge and send it on to “CAI Central” as a matter of record.

So, what’s happening? Well, a couple of things come to mind. First, it’s not binding on anyone just a wish, a hope, a desire, but not seeking governing document reforms.

Second, How about CAI legislating such governing document reforms with effectiveness – penalties against the BOD that will help keep them in line. Maybe that will stop average people from being frustrated that there is no one to help them.

Third, maybe CAI is running scared that California’s SB 323 restoration of fundamental rights and freedoms for members will catch on in other states, like is now taking place in Arizona. But restructure the HOA legal model, as I’ve proposed, to make that a reality oh no!   (See HOAs are in need of a major restructuring, published on Jan. 25, 2020, a week before this pledge showed itself).

Finally, in my 20 years dealing with CAI I have never seen such a request by CAI for BODs to pledge or sign anything except membership applications and dues payments.   This format imitates by Truth in HOAs Disclosure Agreement of 2011.

Homeowner Association (HOA)

Buyer “Truth in HOAs” Disclosure
&
Consent to be Governed Agreement

By my signature below, I , the undersigned Buyer, have read and understood the restrictions imposed upon me by law and the courts as a member of an HOA, and have agreed to the waiver and/or surrender of my rights explicitly contained below. All other rights not expressly prohibited below or expressly granted below to the HOA are retained by me.

I, the undersigned Buyer, and the undersigned HOA by its President, hereby acknowledge and consent to the following:

The opening paragraph requires the buyer to explicitly acknowledge his awareness and understanding of the CC&Rs and that he’s surrendering his rights. It also asks for the HOA president to attest to the truth of the above conditions and legalities of the governing documents. No wonder nobody signed it! It was my response to the pro-HOA forces mantra you agreed, you agreed, you agreed. So, I simply put it to them, put up or shut!

Now that tells you something, doesn’t it? CAI’s pledge is more puffery to sell to the policymakers, the legislators and the media. It doesn’t argue for legislative reforms to require BODS to follow a code of ethical and legal conduct, which CAI has the power to sponsor in every state. DON’T BUY IT!