Tag: CAI

CAI reacts to HOA Enlightenment Movement with targeted lobbying of legislators

Apparently, CAI Central in Falls Church, VA is feeling the heat of the Enlightenment Movement — the awakening of the public, the media and state legislators as to what HOA-Land is really all about.  It has sent an email (“You can Enhance CAI’s Advocacy Program by Participating in this Brief Interview,” July 24, 2013) to its faithful members — presumably its “volunteer” members who are for the most part HOA directors — asking for their participation in a survey of their relationships with elected officials.  Obviously, for intense, micro-managed lobbying efforts in support of CAI’s objectives.

By understanding our network of relationships with elected officials, we can build advocacy programs that advance our positions on any number of issues that directly impact our members and the community association industry.

Recall that I wrote that CAI was formed in 1973 to deal with the problems of HOAs as defined and modeled by the 1964 Homes Association Handbook.  In 1992, CAI made a substantial change in its mission and elected to no longer be an educational organization (Tax exempt 501(c)3) and to become a business trade organization (501(c)6).   It did so under mounting pressures and criticisms in articles, research journals, and books, including McKenzie’s Privatopia.  CAI had to reach the legislatures that controlled state laws regarding the HOA industry.

This latest “brief interview” is another attempt to influence legislators in favor of HOA friendly legislation, knowing that advocates are still fragmented.  With the response from the party faithful, CAI will not only know who the friendly legislators are, but what members have good relationships with specific officials.  CAI Central, or through the local state chapter, can then produce targeted emails — as successfully used by Obama in the past election — to influence legislators. The advocates, unless they want to demand copies of all emails, will be in the dark.

This tactic by CAI has ominous consequences for HOA reforms in every state!  It becomes extremely important that advocates and homeowners in every state seeking redress of HOA problems form an advocacy group to inform the public, the media and their legislators of their views.  As I have long argued, advocates must, even more so now, confront, challenge and expose CAI propaganda.  They must also advance quality reform legislation.

This tactic by CAI of addressing legislators in all states makes it a national issue of unfairly influencing state legislators to advance authoritarian private governments not subject to the US Constitution.  Homeowner rights advocacy groups must be given equal access to their legislators!  Advocates must be given equal bargaining powers over HOA issues!  Legislative committees must not be allowed to hear that the “stakeholders” met without hearing from an advocacy group!

Links to representative CAI “interview” questions: CAI-network3, CAI- network 4, CAI- network 5, and CAI-network6.

 

See What is this “association law” thing all about? and The questionable role of HOA attorneys.

What is this “association law” thing all about?

In the TimesDispatch internet column, “Housing”, two attorneys talk about “association law” (Mercer, Trigiani are guiding voices in homeowner association law). They are real estate attorneys. 

He [Mercer] and his business partner, Lucia Anna “Pia” Trigiani, with offices in Alexandria and Richmond, are considered the top Virginia lawyers in their field, their peers say. . . . “They are a major force in what goes on with association law, and they are equally good at what they do,” [a real estate attorney] said.

But the featured spokesperson, Trigiani, is not identified as a CAI member who received an outstanding person award this past April from CAI, the national lobbying organization for HOAs, the Community Associations Institute.

Lucia Anna “Pia” Trigiani, Esq., a principal with the Virginia-based law firm MercerTrigiani, received one of CAI’s most prestigious honors April 19 at the organization’s 2013 Annual Conference and Exposition. (Trigiani, Dyekman Among Members Honored by CAI).

What is not made clear is just what association law is?   It is not a recognized classification of law, but one promoted by the legal-academic aristocrats and CAI.  (“Community Association Law Seminar, Jan. 23–25, 2014 | Las Vegas, NV.”)  The massive Restatement of Law series consists of some 96 volumes covering 26 categories of law, but no “association law” category.  In fact, laws pertaining to HOAs and covenants/servitudes, the legal basis for HOA authority, can be found in the Property: Servitudes series.

From my research into HOAs reading law encyclopedias, treatises, journals, court cases, legislation, articles and books — I’m not claiming to be an expert, but well read — association law appears to be a conglomeration of constitutional, property, contract, corporation and tort law.  These laws are cherry-picked to support the legitimacy and validity of the Declaration of Covenants, Conditions and Restrictions (CC&Rs) that is the fundamental basis of HOA legal authority.  Whatever aspect of each of these laws that serves to support HOAs is incorporated into association law. Where there are conflicts with laws or contrary laws they are ignored, or association law is declared superior, or first modified and then incorporated into association law. 

Attorneys like to promote association law as sui generis, or a unique thing in a class of its own not subject to other laws.  This new thing, this association law, is an attempt to establish as legitimate and binding a new set of laws that conflict with and repudiate the Constitution.  Laws that distinguish and repudiate the fundamental principles of our system of government and principles of justice, derived from the organic law of this country – the US Constitution, its Bill of Rights, and the Declaration of Independence.  And for obvious reasons — for domination, power and control.

In his seminal book, Privatopia: Homeowners Associations and the Rise of Residential Private Government, Even McKenzie wrote in 1994,

HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments. . . . The balance of power between the individual and the private government is reversed in HOAs. … The property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander.

And this is the purpose in establishing “association law” — to avoid constitutional protections, to deprive people of their life, liberty, or property  without due process of law, and  to deny homeowners of the equal protection of  the laws that apply to all public bodies.

 

See  The questionable role of HOA attorneys

The questionable role of HOA attorneys

In my view after 13 years dealing with HOA attorneys, and especially those who are members of CAI across the country, they are lawyers first and foremost and not advocates for a cause.  They deal with the laws and statutes and CC&Rs as they are, having had a profound role in their creation.

An advocate fights for a cause, or at least, for justice and fair play against unjust, unfair and illegitimate laws.  He sees a societal wrong and seeks to redress these ills of society.  The HOA attorneys defend private corporations without a moral or ethical perspective, as they insist is the law. They do not concern themselves with the de facto acts of HOAs as private governments.   Therefore, under the CC&Rs contract, concern for individual rights and freedoms, those basic American values, are of little importance.

Over the years I’ve seen attorneys cross the line and act in collusion with the wrong-doing of HOA boards, even advising how “to deal with the new laws” that grant homeowner rights and freedoms.  They have proposed suggestions that are in keeping with the letter of the law while openly unreasonable and designed to give the homeowner a “hard time.”  A prime example, offered by the current president of CAI’s College of Community Association Lawyers (CCAL), in his guidelines[i] on videotaping board HOA meetings, as permitted by Arizona’s ARS 33-1248 and 33-1804. 

I’m sorry, but I must admit that my opening statement above is wrong. The CAI HOA attorneys are indeed advocates, advocates for HOAs under the banner, as stated on CAI’s home web page “Building Better Communities”[ii] and “responsible citizenship.” The banner is quite explicit as stated on the Arizona chapter’s web page, “Creating Better Communities Through HOA’s”[iii]  (sic).

When their acts and actions before state legislatures are contrasted with their lofty public relations materials, the average person gets a clear picture of the better America being advocated by CAI attorneys.  It’s an America not based on the basic American values that created this great nation, but on authoritarian private governments permitted to operate outside the protections of the US and state constitutions.  And those protections were established to protect the rights of the people, and not private governments.

In contrast to the intents and purposes of HOA “constitutions,” America took pains in its Constitution to protect individual rights and freedoms:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.[iv]

 

Notes

[i] Videotaping Board Meetings – “Reasonable Rules” (http://www.carpenterhazlewood.com/resources/enews/2011/videotaping-board-meetings-reasonable-rules, April 29, 2011).

[ii]Celebrating its 40th anniversary in 2013, CAI provides information and education to community associations and the professionals who support them. Our mission is to inspire professionalism, effective leadership and responsible citizenship. (http://www.caionline.org/Pages/Default.aspx, July 21, 2013).

[iii] CAI-Central Arizona Chapter (http://www.cai-az.org/home.html, July 21, 2013).

[iv] The Preamble to the Bill of Rights.

CA CAI opposes fair election protection for homeowners

In last month’s California appellate court decision in Wittenberg v. Beachwalk HOA,[i] the court upheld HOA fair elections procedures.  Homeowners are to be given equal opportunity to express opinions in opposition to those of the board, in and on the same media as used by the board. The common practice in most HOAs is to deny members equal access, which has extended in many cases to the denial of membership records and intimidating members from conducting door-to-door campaigning.

The record shows that Beachwalk had engaged in practices found in many other HOA instances:

1.      Holding multiple elections until the proposed amendment was finally passed,

2.      The ballot and cover letter expressed only the board’s recommendations on the amendment,

3.      The board made exclusive use of the HOA newsletter to promote its views, refusing a request by a member to comment on the election, and

4.      Denying a member the use of a fee paid “renter” room to hold a rally against the amendment.

 

The court explained, my emphasis,

This plain English definition [of advocacy], which we adopt, is consistent with the overall nature and purposes of section 1363.03. Subdivision (a)(1) was part of a bill that sought to “provide substantial new voting protections” to members of homeowner associations designed to “guarantee that basic democratic principles are in place during elections,” which had previously been “contaminated by manipulation, oppression and intimidation of members, as well as outright fraud.” It is thus remedial in nature. “A statute which `is remedial in nature and in the public interest is to be liberally construed to the end of fostering its objectives . . . . `The rule of law in the construction of remedial statutes requires great liberality, and wherever the meaning is doubtful, it must be so construed as to extend the remedy.””

 

The intent of the court is clearly an example of the Enlightenment Movement after some 49 years since the creation of the first HOAs in this country.  While the court upheld California’s HOA fair elections statutes, the California CAI Legislative Action Committee opposed the decision in support of democratic functions in HOAs.[ii]  This position is in conflict with the CAI policy that HOAs are “one of the most representative and responsive forms of democracy in America today.”[iii] Unless, of course, CAI has some distorted view of democracy. In fact, CAI California is seeking support to appeal the decision to the California Supreme Court. 

 Notes

[i] Wittenberg v. Beachwalk HOA,  NO. G046891 (Cal. App. 4th Dist. June 26, 2013).

[ii] “Appeals Court Ensures Equal Access During Elections”, Blog of the Community Associations Institute California Legislative Action Committee, July 9, 2013. (http://caiclac.wordpress.com/2013/07/09/appeals-court-ensures-equal-access-during-elections/).

[iii] “A FORM OF DEMOCRACY. Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community. Numerous other owners or residents  serve on committees and help with special tasks as they arise.”, Section 8 in An Introduction to Community Association Living (2006),  http://www.caionline.org/events/boardmembers/Documents/IntroToCALiving.pdf.

 

Combatting the CAI happiness in HOAs surveys

It is the CAI sponsored/conducted surveys of overall “happiness in HOAs” (my words) that advocates must come to deal with.  The surveys must be challenged and confronted, because the HOA lobbyists will show them, with a smile, to your state legislators. And then they will point out several other similar surveys. The legislators will simply glance at the data, smile, and say, “How can I help you?”

It is accepted doctrine, especially in the courts, that if a statement is not refuted it is taken as true. Same applies here when arguing for HOA reform legislation.  The surveys can be challenged on several points, such as, biased surveys even though the reputable Zogby conducts the actual survey under the sponsorship of CAI;  the questions asked and not asked; and the conclusions drawn from the data presented if you obtain access to the actual survey questionnaire and unedited responses. (Any reputable organization will provide this information as verification of its conclusions, as is standard operating procedure with any validly conducted research).

Take the latest CAI 2012 survey under “Association Rules”  that contained an assertion that 25% — note not 5% — had a  “significant” personal issue or disagreement” with their HOA. It also stated that just 42% were satisfied with the outcome. Yet, the survey concluded with the finding that just 8% dissatisfied with their board: “This strongly suggests that the vast majority of residents recognize and appreciate the net benefit of living in their communities—even when there are differences of opinion.”  The survey did not go into the nature of the disputes.  Were they trivial, or did they involve homeowner rights and the fair and just treatment of homeowners?

The following question was asked under “Pre-purchase Awareness:”  Did the fact that your current home is in a community association make you more likely to purchase or rent your home, make you hesitant about purchasing or renting your home or have no impact? An interesting question that indicates an awareness of advocate arguments that if they knew the whole truth about HOAs they wouldn’t buy into an HOA.  Of course the survey revealed that 64% indicated “no impact” and 29% indicated “more likely,” for a 93% positive view of HOAs.

However, no one was asked to read my Truth in HOAs Disclosure Agreement and its comments from readers, for example, that provided a lot of material information about HOA life.  What do you think the response would have been?  But, if nobody tells the legislators about the Truth in HOAs disclosure, or can get the local media to run a survey, then the legislators can pretend ignorance, or at least ignore the babblings of a few malcontents. 

It seems that the predominate attitude of the vast majority of state legislators is that the overall benefits of HOA legal scheme far outweigh any concerns for homeowner constitutional protections  – due process and the equal protection of the laws.

CAI’s Research Foundation makes the following broad claims in its Statistical Review (my emphasis),

Because of the fiscal challenges faced by many local municipalities, communities are often created with the stipulation that the developer will create an association that will assume many responsibilities that traditionally belonged to local and state government.  This privatization allows local jurisdictions to permit the continued development of needed housing without having to pay directly for that infrastructure through property taxes. . . . Community associations not only maintain home values, but also reduce the need for government oversight and expenditures by providing services, assigning payment responsibility to homeowners and being responsive to local concerns.

Read the above carefully!  Where are the protections for homeowner rights under the contractual, not public domain, nature of HOA governments?  There are no protections as one would expect under our system of democratic government.  That is inexcusable! And state legislators do not see any problems with private governments operating outside their state and US Constitutions.

 

If the above surveys and conclusions by CAI are not challenged, life will remain difficult for meaningful HOA reforms.