Category: Opinion

Posts by GKS

tort suit against HOA brings homeowners $3.9 million in awards

Here are the tort suits that  can be brought against almost any rogue or knowledgeable Board that intentionally ignores the laws. Note there’s only one complaint for a breach of contract. Keep them this in mind!

The decision in a jury trial of a suit against a condo in Hawaii brought,

“The jury found the condominium association’s board of directors, and its employees and agents violated state condominium laws. They were also found to be engaged in a variety of illegal acts including racketeering, civil conspiracy, gross negligence, malicious prosecution, breach of contract, and both negligent and intentional infliction of emotional distress.”

Jury awards $3.87 million in Molokai condo dispute

60 minutes legal analyst pooh-poohs HOA negligence in Trayvon slaying

CBS legal analyst, Andrew Cohen, wrote in the Atlantic,

 ”The homeowners association? What? At the same time that Sooner was trying to rehabilitate Zimmerman, the Martin family attorney, Ben Crump, was suggesting that Zimmerman’s homeowners association may have some civil liability here because it reportedly encouraged residents to coordinate their “neighbor watch” concerns with Zimmerman. Crump would have to prove that this was negligence. Good luck with that — and bring on the depositions!”

“Andrew Cohen – Andrew Cohen is a contributing editor at The Atlantic and legal analyst for 60 Minutes. He is also chief analyst and legal editor for CBS Radio News and has won a Murrow Award as one of the nation’s leading legal analysts and commentators.”

Trayvon Martin Case: Zimmerman Builds His Defense

Just goes to show that this legal expert dismisses questions of negligence by the HOA, but does he really know about what goes on in HOAs, or the HOA respondeat superior failure to oversee agents. I will hazard a guess that what he has learned about HOAs comes from the propaganda by “Great Educator” and national HOA lobbyist organization, Community Associations Institute, CAI.

Mr. Cohen, with all due respect, please read the other side of the issue with HOAs, the Truth in HOAs Disclosure Agreement, and  Should the Trayson family sue the HOA?

PS. Twitter notice linked to Mr. Cohen at @CBSAndrew

Was Zimmerman acting in a lawful manner?

A lot has been reported about Zimmerman’s actions that led to his claim of self-defense and protection under what  is generally known as Florida’s “stand your ground” law. A lot has been reported in defense of Zimmerman by the Sanford police position that claims it can only rely on the statements of Zimmerman,  as there was no other evidence.  Well,  that’s understandable  — “dead men tell no tales.”

But evidence has been coming forth, but no questioning of or arresting  Zimmerman.   From the evidence at hand, it must be asked if Zimmerman was acting lawfully, which shouldn’t be too hard a case to make under the “reasonable suspicion” or “probable cause” standards for an arrest.  The court makes the determination of  whether or not a crime has taken place, not the police.

The Florida statute before us is, “§ 776.013, Home protection; use of deadly force; presumption of fear of death or great bodily harm,” Title XLVI, Chapter 776, Justifiable Use of Force.  Here’s what must be decided by the court, not the police.  Paragraph  (1) sets forth what constitutes reasonable fear of harm. Under 1a, was Trayvon unlawfully entering a home?  Under 1b, did Zimmerman have knowledge or “reasonable suspicion,” a standard for all law enforcement to adhere, an unlawful act by Trayvon?

Under 2c, was Zimmerman engaged in an unlawful act in stopping Trayvon?  Under a recent Illinois court decision, HOA security officers could not stop and detain people.

It is under paragraph 3 that the police have apparently chosen to see and to ignore all else.

So, is the Sanford Police Department the tail wagging the dog of justice?

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(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle . . . .

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

 

(2) The presumption set forth in subsection (1) does not apply if:

(c) The person who uses defensive force is engaged in an unlawful activity. . .

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Should the Trayson family sue the HOA?

The Orlando Sentinel reported today that the Trayvon family lawyer, Benjamin Crump, has no intention at this time to sue the HOA. The importance of filing a lawsuit is paramount and is needed for justice.

The history of HOA governance has been the apathy of HOA members that allows boards to do as they please, and boards to allow HOA attorneys to, in reality, run the HOA along with the managers. HOAs have gotten away with no accountability under state protective laws, and by the obedience and acquiescence to board authority and pressures by passive members.

Suing the HOA would also serve as a wakeup call to this indifference to life and suffering  that can have severe consequences, in addition to raising ethical and moral questions for our society. That good intentions still must be measured against courses of action that have foreseeable consequences of serious harm to others.

An explanation for this apathy and groupthink by HOA members can be found in HOAs where members band together in support of their boards, “right or wrong,” was offered in Why do people harm others in HOAs?, which is based on the Milgram and Stanford Prison Experiments. I’ve informed homeowners of the areas of potential liability by HOAs and the impact on the membership in What is an HOA’s duty of care liability to its members and to all others?

However, the position by Mr. Crump not to pursue the HOA lawsuit at this time is understandable. The first concern is for justice and the arrest and trial of the killer, then an action against the failures of the Sanford police, and then get some $$$ from a wrongful death suit against the HOA to help pay the bills.

Was I wrong in 2006 about CAI and HOA independence?

My research into the historical role of CAI can be found in the 2008 The Foundations of Homeowners Associations and the New America, “Part II, The National Lobbyist for HOA Principalities.”  Part II is subtitled, “Community Associations Institute: Dominating the Emergence and Acceptance in America of a Quiet Political Revolution in Authoritarian, Contractual Private Local Government.”   It was primarily based on the 2005 book, Community Associations, partially funded by CAI and ULI and written by Donald R. Stabile. 

I concluded Part II with,

In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors, on local community governance through the adoption of uniform planned community acts that perpetuate the current anti-American HOA governments.  In effect, the super, privatized agency to replace the US Constitutional system of government.

This was written back in 2006, before the 2008 revision to an eBook and the 2010 addition of Part III. 

The subsequent acts and actions by CAI include the behind the scenes support for imposing and promoting   the top-down, “one law fits all,” UCIOA laws for adoption by the states.  Its subsequent acts and actions also include positions taken before state legislatures over the years that support and reinforce the denial of due process and the equal application of the laws for HOA members.  And there is CAI’s performance as presented in CAI continues to ignore the Constitution for the HOA constitution that clearly makes the case for CAI’s rejection of and secession from Constitutional government.

Some may call such behavior, seditious.

I don’t think I got it wrong.   

Reference

Seditious:  “Given to or guilty of engaging in or promoting sedition.”

Sedition:  “Conduct or language inciting rebellion against the authority of a state.”