Category: Opinion

It is well known that the national lobbying trade group, CAI, has its own agenda.  What we have never determined is whether or not that agenda is consistent with the views of the clients, the HOAs that the CAI attorneys represent.  It is also not uncommon for HOA board members to appear before the legislature or to speak out on proposed legislation.  What we have never determined is whether or not that the position of the board member is consistent with the views of the membership. I have never once heard a board member announce, with respect to his public position on legislation that he acts pursuant to a vote of the majority of the membership.  After all, isn’t the HOA supposed to be a democracy?

The point that I’ve raised in the past is that the board does not speak for the membership on public issues in absence of such a vote, and any such statements are an abuse of authority.  There is no grant of such public representation in any Declaration of CC&Rs, or in any statute or HOA Act in any state.  The astute CAI attorneys well know that!  Yet, they act as if the board represents the position of the membership on public issues, without first determining, after reasonable inquiry, if a vote of the membership so agreed with the board’s position.  Yes, the attorney can say that its client, the HOA as represented by the board, has taken such a position, but it cannot act in any way as if this is the position of the membership.  However, it has been my experience that these attorneys leave the impression that their views are the views of all HOAs and their members, whether currently represented, formerly represented, or never represented.

I am not saying that CAI attorneys cannot speak out, but they must be very careful of attributing or implying that the CAI agenda is also that of the HOA.  The safest  and most ethical route is to simply say, “I speak for the national trade group, CAI”.

In Oasis West Realty v. Goldman, pertaining to the right of an attorney to speak out on public issues — think advocating legislation — the CAL. appellate court held,

“These authorities stand for the proposition that a lawyer may take positions adverse to a client, as long as current representation is not compromised, something which does not concern us, and as long as confidentiality is not compromised. . . . We cannot find that by representing a client, a lawyer forever after forfeits the constitutional right to speak on matters of public interest.”

In the court’s discussion, we find legal authorities (excerpts are itemized below) with respect to attorney – client conflicts of interest, with a focus on speaking out on public issues (emphasis added):

1. Attorneys have a duty to maintain undivided loyalty to their clients to avoid undermining public confidence in the legal profession and the judicial process.

2. Our Supreme Court has also said that “`It is . . . an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent . . . . By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests.’

 3. “Loyalty to a client requires subordination of a lawyer’s personal interests when acting in a professional capacity. But loyalty to a client does not require extinguishment of a lawyer’s deepest convictions; and there are occasions where exercise of these convictions — even an exercise debatable in professional terms — is protected by the Constitution.”

4. [T]he Restatement (Third) of the Law Governing Lawyers, section 125. Section 125 provides that “Unless the affected client consents to the representation . . . a lawyer may not represent a client if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s financial or other personal interests.”   Comment b explains the rationale: “Personal interests of a lawyer that are inconsistent with those of a client might significantly limit the lawyer’s ability to pursue the client’s interest.” . . . Consent of the lawyer’s clients is not required.

5. “However, a lawyer’s right to freedom of expression is modified by the lawyer’s duties to clients. Thus, a lawyer may not publicly take a policy position that is adverse to the position of a client that the lawyer is currently representing if doing so would materially and adversely affect the lawyer’s representation of the client in the matter. The requirement that a lawyer not misuse a client’s confidential information . . . similarly applies to discussion of public issues.”

Read Oasis West v. Goldman, B217141, Cal.App.2 Dist., Mar. 3, 2010 at http://www.leagle.com/unsecure/page.htm?shortname=incaco20100303039

I am quite disturbed by this Florida legislation that attempts to save the condominium industry at the expense of unit renters, who are detested by all “loyal” condo and HOA believers.  As a non-signee to the Declaration, renters are looked upon as second-class citizens of the Condo society, treated as personae non gratae, and feared that they may destroy precious property values.

In spite of this view or renters, or maybe because of it, these two bills before the Florida Legislature, HB 329 and S 2458, now turn to these second-class condo “citizens” to impose financial obligations on renters — as substitutes for delinquent unit owners — by statutory fiat.  While any imposed obligation on the renter similar to a garnishment of the unit owner is rational and ethically acceptable, up to the amount of the rental payments, the bill gets extreme when it declares that “the unit’s tenant is jointly and severally  liable with the unit and unit owner for the unit and unit  owner’s monetary obligations to the association.”

This forced service to the private condo governments that operate outside the Constitution is quite draconian (emphasis added):

The tenant’s monetary obligations to the association include, but are not limited to, all assessments and installments, late charges, collection costs, attorney’s fees  and court costs, and other monetary obligations from the unit  owner to the association, and any interest thereon, that come  due against the unit or the unit owner from the date of the  association’s notice to the tenant, and accruing to the date all  the monetary obligations are paid in full, regardless of whether the lease is terminated or otherwise concluded. In addition to  all other remedies, the association may enforce the tenant’s liability by evicting the tenant, either in the association’s name or in the name of the unit owner . . . .”

 

While the intent of the sponsor has merit, the execution of that intent is highly defective.  In fact, the bill appears to be punitive of the renter, placing the burden for the financial crisis, the unit owners delinquency, and the condo board’s failure to prudently manage the condo onto the innocent renter. Talk about government interference into private lease agreements!  Its actions —  tantamount to state actions — in support of, in cooperation with, and constituting a symbiotic relationship, take the cake.  

There is no “Legislative Intent” section, as found in the Sponsor’s other bill, HB 237, whereby the legislature attempts to define the legitimate government purpose in enacting such statutes.  Perhaps because they can’t justify this outlandish bill to protect a private government unaccountable to the state.  Perhaps because there is no compelling reason for this violations of due process when, today, there are remedies available to the HOA/condo to collect delinquent owner rental income.

Would the Legislature dare impose such obligations on all renters to compensate for property owners not paying their real estate taxes to the local government?   Aren’t these local governments also facing huge shortfalls and are shutting down services, too? What is this obsession to protect authoritarian private governments over civil governments?

Nothing has been proposed to hold the condo strictly accountable to the state or to provide for strict penalties against condo violations of the laws and Declaration. The same abuse that the sponsor is well aware of will now infect the renters in a three-way free-for-all as to who’s at fault, and who is not obeying the laws.  It will be a nightmare.  There is even no provision to inform and warn those seeking to rent in a condo of these obligations being imposed on them by this bill. 

What is readily apparent is that property values come first and foremost over long cherished values of justice, fairness, and upholding constitutional protections that reign in out-of-control governments.  Paraphrasing Jim Wallis in Rediscovering Values,

Do we want [property] values to prevail everywhere and in all things?  Are there some areas of life where [property] values should not determine what is most important — personal and family relationships, ethics and religion, community and public service and social justice?  Are there certain things degraded when [property values] are allowed to be the ultimate measure?  Are there certain social values and practices that are higher than market values? 

 

Read the full bill at HB 239.

I read with disbelief the following quotes from the KOMOnews.com (Seattle, WA) report about a homeowners association objection to posting ‘missing persons’ flyers.

Now the president of the Country Hollow Homeowners’ Association has made them take down the rest of the fliers, which are designed to raise awareness about Susan’s disappearance.

The regulations of the community do not allow any posting of signs on community property,” he told the volunteers. “As the president of the association, I have to tell you.

My comment:

Do we want [property] values to prevail everywhere and in all things? Are there some areas of life where [property] values should not determine what is most important — personal and family relationships, ethics and religion, community and public service and social justice? Are there certain things degraded when [property values] are allowed to be the ultimate measure? Are there certain social values and practices that are higher than market values?

In my continuing historical research to uncover any pattern of activity by pro-HOA supporters that would help to explain today’s HOA environment and culture, I now came across a 1989 U.S. Advisory Commission[i] report for public officials.[ii]  It uses a question and answer format, raising some of the very same constitutional and legal issues still being raised today.  The reader must wonder why the answers have been ignored all these years, and who was responsible.

I’ve excerpted a few of the 54 questions, and answers contained in this report.  But first, an introductory statement is worth highlighting: “These private organizations, created through covenants on residential real estate, are exercising some functions similar to local governments and are a significant factor in the privatization of local public services.”

 10. Why have RCAs been called “shadow governments” and “invisible kingdoms”?

 

19. How have special districts been formed in place of RCAs?

Read the full commentary at Public officials.

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[i] The Advisory Commission on Intergovernmental Relations (ACIR) is a permanent, independent, bipartisan agency that was established under Public Law 86-380 in 1959 to study and consider the federal government’s intergovernmental relationships and the nation’s intergovernmental machination. 

[ii] Residential Community Associations Questions and Answers for Public Officials, ACIR, M-166, July 1989, (http://www.library.unt.edu/gpo/acir/Reports/information/M-166.pdf).

  

 

The link below tells the HOA law firm of Carpenter Hazelewood – CAI members – twice fought to stop fair and just due process, because 1) they were losing control over the HOA board members whom they considered “dumb” (see note 1 below), and 2) they lost 42% of the time to Pro Per homeowners, signifying the awful state of injustice going on in HOAs today!