HOA seeks to curb advocates’ right to internet free speech

One of the most important factors that has helped homeowner rights advocacy has been the lack of control and influence over the Internet by HOA industry special interests.  Even Community Associations Institute, CAI, leadership has recognized the impact that the Internet — the websites and email lists — has had on its domination of the information delivered to the policy makers, especially the legislators. 

 

Today, in California, an HOA and its CAI member attorneys are seeking to acquire the Internet domain name, AHRC.COM, not as the result of a free speech or defamation court decision, but  ostensibly as payment for a judgment. Many believe that this is a legal technicality to shut down this powerful voice of the homeowners who read and publish information criticizing and exposing events, incidents and people opposed to the protection of homeowner rights. How much is a nonprofit domain name worth?  Will the HOA continue the policies of AHRC.COM and publish and distribute information contrary to HOA boards and the industry special interests?  The immediate response is, “Hardly”.  It can only be seen as an attempt to stifle Internet free speech. 

Eight years ago in 2000, when I first became involved, AHRC.COM was the only nationally known homeowner oriented Internet delivery system — publisher and distributor — of material information for decision-making by homebuyers and legislators.  The CAI attorneys were rarely identified as members of the national lobbyist trade group, as today, with its personal agenda to support the status quo.  Advocates were not even consulted.   

In 2000, advocates opened several new email lists and websites.  HOANET and CCFJ are two well-known sites that began operating that year. Others followed. The independent Internet began attracting homeowners relieved to find a vehicle to obtain, share and distribute information on HOA conditions and incidents, information lacking from those state consumer protection agencies, such as the state’s attorney general office, the real estate department, business and professional regulatory agencies, and designated consumer protection agencies. 

(NYS has the most comprehensive document, but an after the fact document,  “What To Do About Problems With Your Homeowners Association”, availabe online from the Attorney general’s consumer protection link.   However, it does not address most of the issues raised in “10 Myths About HOAs”).

It took only about a year before the media actively sought out advocates as a result of this new publication source, and the people’s side, the homeowners, began to be heard. With criticism backed by supporting materials, the industry had to answer questions and defend its actions to the public. Many of the most egregious sources of information “headed for the hills”, and we now see the “puppet” groups of management firms and associations of association board members standing in place of most of the CAI member lobbyists.  The playing field has been leveled quite a bit, but the industry with its national well-financed organizations still dominates the policy makers.  The aims and purposes of the Founding Fathers to explicitly protect free speech, making it the First Amendment, testifies to the place free speech plays in the proper functioning of a democracy.  Along with cries for sunshine laws, open meetings and freedom of information access, the internet public information publishing and distribution vehicle for homeowners associations is a 21st century poster child for first amendment protections. 

We must not allow the HOA industry special interests to take control of the last, truly independent news service vehicle available to homeowners seeking a redress of grievances before state legislators.  AHRC.COM must not be placed in the hands of the opposition where it would languish and disappear, an event harmful to our democratic system of government.   

Read what others have to say about this event.  Go to http://coloradosprings.yourhub.com/CrippleCreekTellerCounty/Stories/News/Government/Story~442525.aspx 

Georgia Senate votes to support the New America of HOAs

This bill, SB 217 appears to be unnecessary, and I’m wondering why it was introduced.  In addition, the delegation of broad police powers to unregulated private groups is a move toward the slippery slope of the replacement of municipal government by private HOA government. (See Private Neighborhoods: The Transformation of Local Government, Ch 20, “Neighborhood Succession”, Urban Institute 2005).
*
The HOA is permitted to be an auxiliary municipal enforcement agency without being subject to the same 14th Amendment restrictions as are government entities.  The bill grants government powers to private parties without any accountability or protection from abuse, as clearly evident from numerous complaints against HOA boards in every state across this country.  The HOA does not even have to follow the laws of Georgia with respect to agencies or municipalities or to government officials. 
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The HOA has no duty of care or obligation, either under its governing documents or state laws, to uphold the just and fair treatment of homeowners.  Rather, they are required, under the Restatement Third, Property: Servitudes, (common law as applied to HOAs) to just enforce the CC&Rs.
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This bill repudiates the US Constitution to bypass the application of the 14th Amendment to private governments. 

Tough Florida HOA bill holds boards and their agents accountable

When will the legislators learn that penalties serve as a detriment to unlawful behavior?  When will they stop “blessing” HOA boards, officers and agents – those management firms – with angelic attributes who can do no wrong? 
At least FL legislators understand what will stop homeowners from continuing to appear before them year after year, seeking a redress of their grievances.
H-995 excerpt.
718.111   The association.

     (1)  CORPORATE ENTITY.

     (d)  As required by s. 617.0830 , an officer, director, or agent shall discharge his or her duties in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner he or she reasonably believes to be in the interests of the association. Regardless of any indemnification provision in the documents or contract, an officer, director, or agent shall be liable for monetary damages as provided in s. 617.0834 if such officer, director, or agent breached or failed to perform his or her duties and the breach of, or failure to perform, his or her duties constitutes a violation of criminal law as provided in s. 617.0834 ; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.   718.1224   Prohibition against SLAPP suits.

     (1)  It is the intent of the Legislature to protect the right of condominium unit owners to exercise their rights to instruct their representatives and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. The Legislature recognizes that strategic lawsuits against public participation, or “SLAPP suits” as they are typically referred to, have occurred when association members are sued by individuals, business entities, or governmental entities arising out of a condominium unit owner’s appearance and presentation before a governmental entity on matters related to the condominium association. However, it is the public policy of this state that governmental entities, business organizations, and individuals not engage in SLAPP suits, because such actions are inconsistent with the right of condominium unit owners to participate in the state’s institutions of government.

 FL Rep. Robaina is the sponsor

HOAs: non-congruent developer and homeowner interests

Excerpts from I. Introduction. 

Over the past several decades, common interest communities (an umbrella designation that includes planned single-family home developments, gated and walled communities, condominiums and housing cooperatives all under the aegis of a homeowners association) have become the standard template for new residential development in the United States. Yet, the CIC paradigm is palpably deficient in many ways, premised, since its inception, on a “command and control” rule regime that attempts to regulate all manner of land use and behavior. 

We argue instead that the standard CIC rule-template is far from the inevitable by-product of unfettered market forces. Its continued dominance is, rather, a product of distorted market forces – just as the underlying CIC movement persists as a consequence of skewed markets. The source of that market distortion is three-fold. First, mounting evidence suggests that the CIC phenomenon is, increasingly, the direct product of conscious and deliberate government policy aimed at load-shedding municipal functions and services onto newly created CICs. 

A well-functioning marketplace usually requires some rough equality of bargaining power between the market players, or, in the alternative, a strong governmental role in protecting the consumer. Further, healthy markets typically depend on market players having meaningful access to all of the information needed to make informed decisions. 

But developer and homeowner interests are not congruent. . . . [T]he “dead hand” of the developer all too often bequeaths to the CIC a rule regime that does not necessarily comport with the needs of the residents themselves or, more broadly stated, the needs of the housing market. Buyers are left to contend with a draconian package of restrictions that, unfortunately, is remarkably resistant to change. . . . The rule-bound boilerplate that governs the traditional CIC is best replaced by a legal template that places far less emphasis on regimentation and punishment and far greater reliance on the power of social trust and community. 

In this regard, mandatory leadership training programs as well as fiscal integrity training for all CIC board members are appropriate and warranted. Such programs are the norm in both governmental and private sectors, and have been shown to be effective in inculcating leadership skills and ethical responsibility. 

Still, a broad program of statutory reform and training initiatives, although necessary, is not sufficient. The elusive but essential social virtues of trust and community must be consciously cultivated, tended to and reinforced by CIC leadership and, most importantly, by CIC residents themselves. Neighborliness works. When all is said and done, the power of social trust and cooperation must be given the chance to do its job. 

Trust and Community: The Common Interest Community as Metaphor and Paradox, Paula A. Franzese and Steven Siegel, Vol 72, Missouri L. Rev., 1111 (2007). 

Steven Siegel

1.  Co-author of AARP amicus brief to NJ Supreme Court in the 2007 Twin Rivers HOA free speech appeal.

2.  The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years after Marsh v. Alabama, Wm & Mary Bill of Rights J., Spring 1998.

HOAs: 'command and control regimes' under questionable consent

Excerpts from VII. Conclusion.

That particular paradox has been the source of considerable confusion and misunderstanding. For too long, conventional wisdom has been that CICs are nothing more or less than the product of market forces, and that the elaborate CIC servitude regime is nothing more or less than a market response to consumer demand. This received wisdom ignores the realities of several distinctly non-market phenomena, including the pervasive privatization policies of local governments and the self-interested motives of CIC developers, that are at variance with the best interests of CIC homeowners. It also fails to respond meaningfully to gaps in resident consent to the CIC servitude regime in the first place. Those market distortions have played a critical role in sustaining less than desirable rule-bound CIC templates. One consequence is that the status quo CIC paradigm cannot be justified as the inevitable product of market forces or consumer choice. In fact, we have argued the contrary to be true.

. . . .

In particular, we propose a new legal foundation for CICs composed of the following elements: (1) a new set of governance choices based on a sunsetting of the developer-imposed servitude regime after the developer relinquishes control of the CIC; (2) a series of clear statutory rights for residents; (3) a fair, equitable and affordable alternative dispute resolution regime; (4) an ombudsman with a mandate to resolve homeowner issues before such issues metastasize into full-blown wars; and (5) the imposition of systems of transparent management and accountability.

. . . .

Ultimately, CICs must be afforded the opportunity to shed their command-and-control rule regimes in favor of templates aimed at reinforcing norms of basic neighborliness. This way, similarly situated residents, all of whom share the goals of minimizing their own transaction costs while preserving and protecting their property values, are given the chance to live the essential wisdom of “self-interest rightly understood.”

Paula A. Franzese and Steven Siegel, Trust and Community: The Common Interest Community as Metaphor and Paradox,  Vol 72, Missouri L. Rev.,  1111,  2007. 

Steven Siegel

1.  Co-author of AARP amicus brief to NJ Supreme Court in the 2007 Twin Rivers HOA free speech appeal.
2.  The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years after Marsh v. Alabama, Wm & Mary Bill of Rights J., Spring 1998.