FL HB 1259 seeks criminal penalties against HOAs

Florida’s HB 1259 [1] has the makings to become landmark legislation: holding the HOA and its directors accountable under criminal penalties as are all municipal employees held accountable.  As FL law now stands, they violate the equal protection of the law and due process requirements under the 14th Amendment.  Homeowner members are subject to special laws that apply to HOAs and condos and will  not pass judicial scrutiny.

Professor McKenzie called it like it is back in 1994 in his seminal book, Privatopia: Homeowner Associations and the Rise of Residential Private Government.

“HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”

Why the special treatment for HOAs?   The answer is obvious.  HOAs are contractual governing bodies under state nonprofit corporation law, and thus require a board of directors to run the association.  Holding the BOD accountable under criminal law would put a huge crimp in getting members to become directors and officers, a result feared by the pro-HOA parties and even the members themselves. Without directors there cannot be a functioning HOA.    Consequently, some modifications to the state’s constitutional system of government had to be made to exempt the BOD from state accountability.  Justice was denied the members for the survival of the defective HOA scheme.

Even if directors and officers were offered a salary on par with city/town council members, I doubt this would fly. The members, who go bonkers on any raise in assessments, would not go for it.  If they did go for it then they would demand performance from the BOD and the weak argument that they are volunteers with a good heart without the abilities to perform as required and should not be held accountable falls apart.

HB 1259 will surface these major defects in the HOA legal scheme and as well as the unconscionable legislative protection of HOAs.  But this will not happen without FL advocates making these constitutional arguments and positions loud and clear –  to the legislators, to the media, and to the public at large.

 

Note 1.  See Deborah Goonan’s discussion of HB 1259 at IAC.

HOA social dynamics — “freedom of mind” pt. 1

HOA social dynamics and the loss of “freedom of mind”

By: George K. Staropoli, March 18, 2019

Part 1.

A very disturbing  behavior by the vast majority of HOA members in many HOAs, both large and small, is their willingness, their wholehearted obedience, and their unquestioned loyalty to behave as instructed by their board of directors (BOD).  When confronted with contradicting views, criticizing and opposing the BOD’s actions and conduct — supported by documentation in statutes, correspondence and BOD behavior — members simply ignore the evidence.  These unknown neighbors, these strangers for the most part, who apparently cannot think for themselves can affect your home without your consent.

And when questioned and confronted as to their reasons and justifications for these outright illogical and wrongful acts by their BOD, the questioner is met with a cult-like resistance and dogmatic defense.  The defenses are a combination of, among other things,

  1. the BOD can do no wrong;
  2. the BOD is made up of volunteers doing what’s right for the HOA;
  3. outright denying and disputing the opposing arguments without investigation;
  4. labelling the questioner as a troublemaker and attacking his motives; ostracize, and disparage;
  5. a defense consisting of slogans and mottos, like “no government interference.”

The BOD demands faith (never question), loyalty (agreement with the BOD),  and obedience (suffer the consequences for disobedience, both financially and emotionally). However, there may be a small opposition group, but it usually lacks the power to be effective because the governing documents have been designed to restrict such “upstarts.”   HOAs restrict the freedom of political speech as permitted in the public domain.

I am aware of two instances —  both in Arizona by upscale, large HOAs — of the extreme degree to which members display a lack of “freedom of the mind”[i] concerning amendments to the governing documents that have material consequences.   In both cases the membership was given notice of serious violations of the law and governing documents supported by hard evidence. In both instances the BOD failed to address these concerns and to justify its actions.  The vote was allowed to continue and the amendments became, in my view, falsely effective.

There is clear and convincing evidence that this irrational behavior is the result of a long-term, systematic program of indoctrination using propaganda[ii] as the means to accomplish the aims and goals – the “party line” — of the propagandists.  Enforcement of the party line can be found in the same methods used to enforce cult obedience.[iii]  The causes of this state of affairs in HOA-Land[iv] are analogous to the pressures of the pre-WWII Germans and today in America with respect to Facebook and other  businesses fostering social media for their own self-serving agenda, respectively.

Milton Mayer interviewed average Germans in 1955 asking how could they let the Nazis take control. One telling response was that the “good” Germans went along “in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.”[v]  The vehicle for this abandonment was the Ministry of Public Enlightenment and Propaganda.

Roger McNamee[vi] describes Facebook’s motive and mission as to make money by allowing people to “talk” to each over the Internet.  Facebook uses behavioral modification techniques such as, playing on “’lizard brain’ emotions such as fear and anger,” “giving users ‘what they want,’” and “[nudging] user attention in directions that Facebook wants.”  Both examples seek to control and limit the people’s “freedom of mind” by indoctrinating them to their self-serving agendas. The analogies to HOA-Land are striking.

Continue with Part 2.

References

[i] See Social dynamics freedom of mind.pdf (2019), footnote 1.

[ii] Propaganda techniques: glittering generalities; testimonials from prominent people; name calling; use of false and misleading statements.

[iii] Obedience: “a form of “social influence in which a person yields to explicit instructions or orders from an authority figure.”

[iv] I have defined HOA-Land as a collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States.

[v] They Thought They Were Free, Milton Mayer, 1955.

[vi] Zucked: Waking Up to the Facebook Catastrophe, Roger McNamee, Penguin Press (2019).

HOA social dynamics — “freedom of mind” pt. 2

HOA social dynamics and the loss of “freedom of mind”

Continued from Part 1

By: George K. Staropoli, March 18, 2019

Part 2.

The best explanation I’ve found, and reinforced after some 7 years, for this illogical mass conduct by HOA members can be found in my 2012 six-page paper re-titled as, HOA social dynamics and the loss of “freedom of mind.”[i]  The following is my Conclusion.

In the Milgram[ii] and Stanford Prison[iii] Experiments researchers explored what evil men can and will do to others 1) under repeated pressure from authority figures to follow the rules, and 2) in an environment where one is expected to act in accordance to the  roles of the community.  The researchers found that basically good people will indeed do harm, even do severe harm, to others.  The conditions and factors present in these experiments exist within the HOA community, and the harm being done to others in these HOAs is well documented in the media and in the courts.

 The authoritarian insistence on enforcing complete obedience to the CC&RS, as repeatedly impressed on HOA boards by their attorneys, is well documented. The compliance by the directors and officers with these pressures for enforcement is well documented.   The blind obedience, apathy, and passivity  to authority by HOA members – the “prisoners” — who sign and agree to provisions blatantly detrimental to their interests, is well documented.  The adoption of the roles demanded of them by the system  and by the situation —  state laws and the court opinions, the adhesion CC&Rs and governing documents, and the lack of effective recourse — is well documented.  

The numerous “educational” seminars taught  by the attorneys and managers, many of which are sponsored by state and local governments,  serve not to fully inform but to indoctrinate the members into roles of obedience  and passivity, is well documented.  Good people doing bad things or remaining silent in the midst of wrongful acts and actions by the HOA is well documented.

State governments, the legislatures,  cannot allow HOAs to continue to  run amuck and to  freely violate the laws and their contractual obligations without legitimate and necessary constraints holding them accountable for the harm that they do to others.  BODs are getting a free ride from their state legislature.  

State legislatures and town/city governments must stop supporting the propagandists responsible for creating this unhealthy attitude.  They must immediately conduct a valid and independent vetting of the principal party that conducts their educational seminars and conferences that advance their misleading party line. A fully informed citizenry within HOA subdivisions is a necessity for democracy to function and protect individual rights and freedoms.

References

[i] See Social dynamics freedom of mind.pdf (2019), footnote 1.

[ii] Obedience to Authority, Stanley Milgram, Harper Perennial (1720) (1983).

[iii] The Lucifer Effect: Understanding How Good People Turn Evil, Philip Zimbardo, Random House (2008).  Made into a movie in 2015, The Stanford Prison Experiment. 

Continue reading HOA social dynamics — “freedom of mind” pt. 2

CA SB323 a model on fair elections for all states

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

The bill modifies California’s Civil Code, Section 5145(a), inter alia, mandating a court to void any election found to violate the law. The court no longer has discretion, as many have been found to favor the HOA over the member, and insures that justice be served. “A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association.”

Section (b) is modified to read, “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.”

In all fairness, the bill requires the violation to be intentional and material to the outcome to avoid frivolous suits.  With CAI “experts” in HOA law involved in many of these cases, it’s hard to view the violation as accidental.  There is an instance in Arizona at this time where this bill is sorely needed.[iv]

Without fair elections, all this pro-HOA clamor by CAI and other staunch HOA backers that HOAs are the epitome of democracy where members can vote, and should get elected and involved in the affairs of their HOA becomes meaningless tripe!

California’s SB 323 must be made law not only in California, but in all the states as well!

References

[i] See HOA Common Sense: rejecting private government, Democratic elections, No. 5.

[ii] See “California HOA elections bill update (March 2019)”, Independent American Communities.

[iii] Supra, n. i, HOA Boards can do no wrong, No. 7.

[iv] For example, see “Non-conforming HOA voting procedure”,  HOA Constitutional Government.

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

The bill modifies California’s Civil Code, Section 5145(a), inter alia, mandating a court to void any election found to violate the law. The court no longer has discretion, as many have been found to favor the HOA over the member, and insures that justice be served. “A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association.”

Section (b) is modified to read, “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.”

In all fairness, the bill requires the violation to be intentional and material to the outcome to avoid frivolous suits.  With CAI “experts” in HOA law involved in many of these cases, it’s hard to view the violation as accidental.  There is an instance in Arizona at this time where this bill is sorely needed.[iv]

Without fair elections, all this pro-HOA clamor by CAI and other staunch HOA backers that HOAs are the epitome of democracy where members can vote, and should get elected and involved in the affairs of their HOA becomes meaningless tripe!

California’s SB 323 must be made law not only in California, but in all the states as well!

References

[i] See HOA Common Sense: rejecting private government, Democratic elections, No. 5.

[ii] See “California HOA elections bill update (March 2019)”, Independent American Communities.

[iii] Supra, n. i, HOA Boards can do no wrong, No. 7.

[iv] For example, see “Non-conforming HOA voting procedure”,  HOA Constitutional Government.

New poll: should HOAs be subject to Constitution

Please see the poll in the left margin, below my picture.

Question:  As de facto community governments, should HOAs be subject to the Constitution as are all other local governments?