HOA Constitutional Government

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!

The members of the Arizona Terravita CA voted about 1000 to 100 to accept the extensive amendments to their CC&Rs. (See   HOA ethics: vigorous performance or collusion?)  In response to a member’s concern about any affects of this vote, I answered as follows.

I am sure that you are aware of the expression: “You are identified by the people you associate with.”  That expression holds true for the community in which you live, the Terravita community, whose actions and failures to act set the character of the community, and of the people who live in Terravita.  The Terravita mindset is: In the name of “maintaining property values”, the HOA is beyond reproach and can do no wrong. 

From my years working to bring the American democratic system of government to HOAs, I have encountered HOA “true believers” who adhere to the ideology that “my HOA can do no wrong”, and who refuse to look at the facts. They are primarily concerned with a narrow self-interest: how will it affect my finances and my property value? The 1000 to 100 vote in favor of the extensive amendments clearly demonstrates that Terravita is infected with this malady.

HOA members do not want to hear that they live under an undemocratic government whose legal objective is to maintain property values, and not concerned with protecting the individual’s rights and freedoms. It’s a commune environment where your property rights are not under your control, but under the control of a board and your neighbors — now under the control of a minority of your neighbors — in a corporate form of government where a member has less rights than those not living in an HOA. Do you really want your home to be collateral to a regime that is authoritarian, and not having your best interest in mind? Under law, the HOA board has it allegiance to the HOA corporation, which is NOT the same as to the membership.

The one-sided vote reflects a mindset in Terravita that the board can do no wrong, and the attorneys advising the board have the best interests of the members in mind, and not a personal agenda to protect and defend the un-American HOA government that serves to feed their revenues. Attorneys who play loose with the laws and judicial system, ignoring irregularities in order to get their way.

HOA members need to reevaluate their value systems and to understand the character of their community. Do the members stand up for ethical and moral values, for the equal application of the laws and adherence to the Constitution? Or does only property value have any meaning, any importance?

Here’s my review of Rediscovering Values, Jim Wallis, Simon & Schuster, 2010. Mr. Wallis a preacher who has appeared on numerous TV discussion panels. And many people see no wrongs. Wallis wrote:

There are some things that we all should get angry about. First, we were told a lie. Second, the rules of the game failed. Third, our good was supposed to trickle down.

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?