Tag: CAI

CAI files amicus brief in Illinois Supreme Court claiming HOA is like a government

I just read the Illinois CAI chapter’s amicus curiae brief in the IL Supreme Court appeal of the groundbreaking Spanish Court v. Carlson decision. The court held the HOA liable for violating contractual obligations to repair and maintain common areas, and homeowners could withhold assessments.

 Speaking about the need for timely payment of assessment to keep the HOA going, CAI argues,

The very real impact of the Second District’s decision is peculiarly analogous to our government’s need to collect taxes free from objection by individual taxpayers. Surely, if people could refuse to pay taxes and then defend against their collection based upon a claim that the government had been negligent in the maintenance of public spaces and providing services, the government would find itself in dire financial straits and unable to fulfill its obligations.

The other decision in this 2012 case prevented the HOA from using the draconian measure of “forcible entry” – occupy the unit — to get the member to pay right away.  CAI’s argument for the HOA was that forcible entry was a valid tenant-landlord action, but the court had held that not paying rent was also a valid landlord-tenant action.

The major selling argument for CAI’s being “a friend of the court” is its repeated claims to speak not only for the HOA, but for the members, too. CAI offers the same ol’ impression that it is an educational organization and not a business trade group that lobbies for the business interests of its members.  And as such, why is it defending the consumers of its services, the HOA?  We know why?  Does the Illinois Supreme Court know why?

The Institute’s [CAI] mission is to serve as a national voice for those involved in community associations, including homeowners, governing boards, service providers, and vendors. (My emphasis).

The Illinois Chapter’s mission is to provide education and resources to Illinois residential condominium, cooperative, and homeowners associations, as well as represent their interests and the interests of Illinois community association members on issues of legal importance. (My emphasis).

However, the brief is full of arguments supporting the HOA and it right to use the draconian measure of forcible entry, while denying the contractual right to withhold payments when the HOA defaults on its obligations.

See Court decisions: HOA Enlightenment Movement vs. the Dark Ages; CAI amicus brief

Why HOA reform advocates fail at legislative reforms

This Commnetary is in response to a comment to my book review of Colorado Senator Morgan Carroll’s, Colorado senator’s guide to effective HOA legislation.

Your comment is understandably emotional and angry, because of failed attempts at HOA reforms.  I assume you have read my commentaries on the basic theme that state legislatures are not friendly toward HOA reforms. But the book shows you how to throw it back at Carroll and the dysfunctional legislatures and hypocritical legislators.  Just take it from the mouth of the “enemy” and use it against her.  Show her as a hypocrite, if that’s what you believe.  I do it all the time with the Arizona Legislature, and a new strongly worded critique is on the way.

You are mistaken in stating that I praise Carroll as a friend of HOA reforms.  I praise her because the book shows the way to reforms, and similar advice has been provided by legislators in other states.  The problem has always been the failure of homeowner advocates to recognize the fact that this is power politics, just like you see on TV, and they must learn to play the game.  And Carroll tells you how.

Yes, the book implies that all upright and good standing representatives will come to the aid and do right by the people, if they speak out loud enough and in large numbers.  Carroll does not say “right is might,” because the laws do not deal with justice.   Legislators, except for a very small minority in isolated cases, do not take up the “Mr. Smith Goes to Washington” cause of the people that this ain’t right. Wake up guys! 

While small groups have spoken out in many states, they are not organized or powerful enough to overcome the paid lobbyists with their credentials.  But, over the years nobody really wants to organize a national HOA reform advocacy to counter the CAI propaganda.

Yes, there have been champions of HOA reform, but advocates fail to realize that these legislators must buck the powers that be at the legislature and win over the votes of a majority of other legislators. And this takes outcries by many people, not with gripes of “I wuz wronged!” but with valid arguments as to why HOAs are wrong for the state and the general public well-being.  And how to fix  these wrongs.  

This must be understood. The legislature does not get involved in your personal gripes! You must raise your issue to a general issue, a fundamental rights issue, before any legislature will get excited.

Learn from the book and take it to Carroll and show her “dual personality” in public, where it counts, and not here among others who know but do nothing.

State legislatures and HOAs: When will they ever learn?

It should not come as a surprise to anyone that state legislators have allowed the HOA legal scheme, which they have played a strong hand in supporting, to deny the equal application of the laws for all, and the loss of constitutional protections. 

Free speech, flying the flag, due process, clean elections, etc. have been denied by HOA regimes.  Even noted CAI member attorney, Adrian Adams, speaking about HOAs in the Davis-Stirling online Newsletter article, Animal Sacrifice: “Just as private organizations can restrict free speech, they could conceivably restrict religious practices that negatively impact other members.

The denial is basis on the specious and false argument of a “consent to agree.”  A consent that falls dismally short of meeting Supreme Court judicial scrutiny for constitutionality. All the HOA has to show is an HOA interest for the benefit of the entire community and the courts will find no problem, just as if the HOA were a government entity that has some legitimate interest in the issue.

Furthermore, legislators accept the argument that any validly passed CC&Rs amendment binds everyone including any dissenters, regardless of its relevance, bearing, or reasonable expectancy of the restrictions being imposed on owners.  It’s the “general government interest” approach. It appears that public government attributes are ascribed to the contractual HOA, with the contractual terms are being ignored.  All reform legislation is an attempt to restore those rights wrongfully denied the homeowners, on a case by case, HOA by HOA, state by state basis. 

HOAs are not de jure governments — not state entities.   But, they are de facto governments operating under state legislature protections, but in contrast to all other government entities, without constitutional protections.  HOAs are unrecognized governments as is Cuba, but functioning nevertheless every day.

When will legislatures learn?  When will they undertake an independent study of HOAs with a truly independent “think tank”?  Like the Arizona State’s Morrison Institute for Public Policy.[i]  When?  Perhaps never, since they don’t seem to really want to know, and perhaps because they know what the findings will show.

[i] “Morrison Institute provides public policy research for government agencies, private associations, nonprofit organizations, and communities. In conducting research, analysts draw upon a variety of disciplines and methods: collecting original data through public opinion surveys, interviews, and consultation with experts; and analyzing existing information through review of published research reports, current legislation, and statistical data.”  (See http://morrisoninstitute.asu.edu/about/about-the-morrison-institute).

HOA democracy at work: dysfunctional adoption of amendments by minority vote

 

OPEN LETTER TO  TERRAVITA CA MEMBERS

Understand what a YES vote means for Terravita and your image as a citizen

Summary

The writer provides an example of how HOAs create a dysfunctional, un-American community, using arguments against the adoption of CC&Rs amendments on two occasions by the Terravita CA in Scottsdale, AZ.  In the first instance, amendments that violated Arizona statutes in regard to the content of the ballot were approved in 2010. One non-disclosed amendment made significant reductions in the requirement for adoption of future CC&Rs amendments, from a supermajority vote to a minority vote.  (In 2011, the Legislature defeated a CAI drafted bill that would allow for minority control of HOAs). 

The current amendment reflects an undisguised intent to punish one member for filing Office of Administrative Hearings (OAH) Petitions against Terravita.  Attorneys are not awarded fees at OAH because they are not required, yet the poorly constructed amendment removes attorney fee awards in civil court actions.  As a result of the approval of the non-disclosed “minority control” amendment in 2010, a minority of only 307  out of 1380 votes will be required to adopt this Board approved punitive amendment. 

Without any prior open discussion or debate, the distributed Absentee Ballot is one-sided in favor of the Board without opposing arguments. Adopting these amendments by a minority of members reflects an un-democratic and dysfunctional culture within Terravita.  The objectives of the “corporate state” are primary and individual property rights are secondary. Members are urged to reject the amendments.

Read the full letter here . . .

Observations on AZ legislative treatment of HOA reform bills

If you listen carefully to the HB 2371 sponsor and committee chair explain her bill you would hear the familiar attitude taken by many legislators. First, you were told that a “meeting of all the stakeholders” to work on combining all the bills into one took place.  Oh yeah?  All the stakeholders, but no homeowners.  

 Second, the objective of the bill was to remove “all the contentious issues” and arrive at a bill satisfactory to all. So, those serious violations of homeowner rights will die each time CAI shouts, “HELL NO, WE WON’T GO”!  And of course, there ain’t nobody present to object.  

 So, that would explain what happened to the wording of SB 1333, the “clean elections” in HOAs bill?  A bill that, if passed, would severely cripple the political machine HOA boards and reduce HOA attorney influence.  A bill that would put an end to HOAs, under attorney guidance, finding ways to deny homeowners a legitimate voice in their governance.  But, there were no homeowners invited to the stakeholder meeting!

 Advocate Pat Haruff corrected the sponsor on this comment about “stakeholders.” No response from the Senator. That means that your pool guy, AC service man, landscaper, etc. are all stakeholders in your private property interests because they make money from you, the homeowner. And the legislators don’t need to hear from you! Welcome to how state legislatures are creating the New America of HOA-Land.

An argument against unlicensed management companies being granted exceptions to the unauthorized practice of law (UPL) laws was raised. While the bill would allow managers to represent HOAs in small claims court, it says nothing about homeowners being allowed to have their own unlicensed person speak for them. No one against the management company amendment portion brought up the AZ UPL decisions and opinions contained in AZ Supreme Court’s Final Order: HOA management firm engaged in unauthorized practice of law. Well, did you really expect CAI or AACM (manager’s association) to do it?  And believe me they know, because the management firm was both a CAI and AACM member.

 The CAI paid lobbyist once again falsely proclaims that CAI represents homeowners, failing to mention that CAI does not, and cannot as a business trade group, represent consumers — and HOAs are consumers of CAI member services. No one corrected him.

 I also got the feeling from the sponsor’s comments that the legislature was sort of tired of all these HOA bills, again and again, so wrap them into one bill and get it done with. I wonder if the annoyance is because they know that they are doing wrong to the people whom they are supposed to represent, and favoring the special interests. What about protecting the private property rights of the individual, a principle uttered so many times in so many arenas except in the HOA arena?

I can’t recall over the past 5 years many HOAs coming before the committees on behalf of HOA bills. No, it’s just the special interest vendors, the “stakeholders”, who live off HOA income who come before the committees. And nobody seems to notice. Yet, the homeowner who comes and/or writes is given short rift.  I’ve told several legislators over the years that we will be coming back year after year until they get it right.

 So, there it is! Homeowners are at the bottom of the food chain, with the legislators ignoring the principle that in a democracy citizens rule.  To paraphrase a statement in an address to the British prisoners of war by the Japanese commandant in the movie, The Bridge on the River Kwai,

 “Be happy in your home”