Tag: California

the age of HOA enlightenment is coming?

I’m beginning to see more and more evidence of enlightenment by pro-HOA supporters. The dogmatic insistence on enforcing the CC&Rs is falling away to a proper concern for the principles of democratic government and the fair and just treatment of homeowners. The strict view of the covenants is weakening.   There is a growing awareness that HOA boards are governed by other laws and ethical and moral considerations, if indeed HOA regimes are to meet the CAI propaganda of vibrant and harmonious communities.

The Berding-Weil blog, Condo-issues.com (California), shows recent evidence of this enlightenment as is recent posts introduce a degree of reality of events. Now, Donna DiMaggio Berger in Florida reminds boards of good government practices with,

Lastly, when you poll your community members and they voice an opinion on a proposed course of action, boards who disregard that input do so at their own peril. This is not to suggest that the membership must be polled on every course of action, particularly on routine maintenance which is one of a board’s main functions, but if you ask for input on discretionary spending it’s probably best to heed the message your members delivered.

 Avoiding the appearance of self interest as an association director

 Wow! What a thought — poll your community! Why didn’t I think of that very democratic tool? As claimed, the HOA board is the representative of the owner-members. Gee, asking for input is a radical suggestion for an undemocratic corporate form of government. Long overdue as HOA regimes are de facto political governments. Congratulations Donna! Excellent message for HOA boards as HOA member servants.

Now, Mr. Berding, why didn’t you address the recognition of the HOA de facto government in your “Reform Community Associations?” post? After all, you do hold a PhD in Government from the prestigious Claremont School. Your message was that HOAs were too big to fail, and we all have to live with the way things are.

 Every year the California legislature, and the legislatures of other states tinker with the enabling statutes for homeowner’s associations, but these efforts are usually paternalistic, constituent-favoring amendments that do little or nothing to solve the fundamental problems.

 How about the simple amendment that would go a long way to solving problems by restoring the equal application of the laws and due process protections of the 14th Amendment to homeowners, as it should be, and create a unified country rather than a myriad of independent HOA principalities?

The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.  

HOA member Declaration of US and State citizenship.

 

As word of manager UPL conduct spreads, where were the HOA attorneys?

Adrian Adams, a California CAI member attorney has spread the word about HOA manager  UPL activities.  And the word will continue to be spread to all states since they all has UPL rules. This blog entry follows just a week after my Commentary, Final Order: HOA management firm engaged in unauthorized practice of law, was published.

In the June 24, 2012 of the Davis-Stirling.com eNewsletter, “Managers Practicing Law.”  Adams offers the following advice to HOA boards,

Directors will have difficulty convincing a jury that seeking legal advice from a manager was prudent. . . . When asked for legal advice, a manager should always recommend that the board seek legal counsel. Doing so protects both the manager and the board.

Let’s step outside the box!    UPL supreme court rules have been around for many, many years in all states.  During all this time, where were and what were the CAI self-proclaimed HOA legal experts doing?   Did these experts not know about state supreme court rules on UPL?  Well, that’s no excuse, if true. 

If homeowners can be held accountable under CC&Rs that need only be recorded at the county clerk’s office, sight unseen and without an explicit buyer signature, why should these attorneys escape accountability for negligence to their HOA clients? 

CAI is the national lobbying entity, whose members have repeatedly gone before state legislatures to propose statutes governing HOAs on behalf of all the HOAs and homeowners. (CAI has a miniscule number of homeowners as members, at most 30,000 of some 25,000,000 HOA families).  And CAI attorneys often take the word of the HOA manager with respect to the validity of legal action, without the independent review required by civil court rules that the action is based on facts and the law (Rule 11(a), Signing of Pleadings).

The CAI attorney silence is disgraceful and violates the rules of civil procedure and professional code of conduct. Ethical rule 3.1, Organization as Client, of the code of professional conduct, specifically relates to the attorney’s awareness of illegal conduct by the client or “other person associated with the organization,” and 2.1, Advisor, whereby candid advice on moral and ethical issues may be rendered to the client.

I wonder what the reaction is from those 9 states that use CAI to license managers: Alaska, California, Connecticut, District of Columbia, Florida, Georgia, Illinois, Nevada, and Virginia.  Or from those towns, like in Arizona, who sponsor CAI seminars on good governance.

This egregious conduct is another solid example of the true nature of CAI’s involvement in the HOA governance industry.  It is unquestionably in the self-interest of its members, both its attorney and its management firm members. 

HOA Privatization Scale: facing reality

Note:  As you read this commentary, please keep in mind the serious revelations of wrong-doing in HOA-Land: in Nevada, in California with corrupt judges, in Arizona where the case files on charges against an HOA attorney for aiding and abetting have been sealed, and in those states with consumer “pacifier” ombudsmen who accomplish very little.   Many will blame the government, and ignore the role played by the HOA member in allowing such activities to happen with such ease.  The Privatization Scale shows an attitude that can be described as an irrational fear of, “Don’t make waves otherwise the government will take my HOA away.”

 HOA Privatization Scale

  Having spent a few years in this arena of homeowner associations, I’ve come up with a scale to help define where a person stands on the status and acceptance of HOAs.  This is based on the attitudes and statements made by the person and will be helpful in understanding and communicating with him.

I chose a scale based on the degree of privatization that is acceptable to the HOA member; that is, how strongly does the person identify and accept the level of privatization in one’s life and home and the intrusion into one’s privacy by HOA boards. There are 5 classifications:

 1.      REVOLUTIONARY – This person sees HOAs as an anomaly to the American way of life and beliefs, and operating outside the laws of the land.  The HOA model must be completely revised or removed.

 2.      REFORMER— This person generally accepts the HOA legal model and powers of the HOA as granted by the CC&Rs, and permitted by the state governments. He only wants the board to change its ways to conform to his views.  He’s primarily concerned about his own local problem.

 3.      COMPLACENT — He is the person who is content with his HOA, only seeing “personal” aspects of the HOA’s powers and functions; that is, the HOA keeps the community neat and clean, provides amenities, etc. This person does not understand the broader issues surrounding HOAs.  There are no problems with the board, just those homeowners who don’t comply.  The board does a good job.

 4.      TEAM PLAYER — This person understands the private nature of the HOA, but prefers it and the sanctions against members.  He primarily is concerned about the quality and value of his community.  A believer in private clubs and their restrictions, and a person’s right to associate with whom he pleases. He does not let violations of fundamental principles and laws affect him.

5.      TRUE BELIEVER — This person is a power player who understands that the HOA private organization structure, with the lack of government enforcement against HOA board violators, offers an opportunity to control and to dominate. Enforcement is necessary to protect property values. What’s good for him is good for the community. Most horror stories can be found here.

 The graph shows a normal distribution curve and the percentages of the people within each segment.  As can be seen, I have shifted the Complacent category to the left. It signifies a preference by HOA members in favor of acceptance of the HOA legal concept, beyond an unbiased expectation.  That is, all things being equal, as I’ve tried to accomplish with the scale, category 3 should fall in the center of the graph.

 In the normal course of things, those at the extremes, the Revolutionaries and True Believers, are the most proactive and vocal segments, but not in equal strengths of being active.  The right-side has been more vocal and influential.

 From my many years of direct involvement in the HOA reform movement and my research and study into social and political reform movements, the environment and conditions necessary for substantive reforms to occur are not even on the horizon.  Token reforms will occur here and here, and some have brought substantive changes like the OAH adjudication of HOA disputes in Arizona, and the prohibition on foreclosing just for HOA fines.  Sadly, though, many substantive reform bills have been repeatedly rejected by state legislatures.

 As long as reformer-advocates continue to accept the legitimacy of the HOA legal scheme — not wrongful or unlawful — they have rejected their most powerful weapon in their battle to achieve substantive reforms.  And in doing so, they have allowed their very powerful oppressors to sit as equals at the bargaining table.  The outcome is, and can only be, as expected and as demonstrated historically. 

  

ASSERT YOUR RIGHTS AS A CITIZEN

REJECT THE HOA CONSTITUTION

 Send the HOA Member Declaration of Citizenship to your legislators!

HOA Gestapo tactics — the slippery slope steepens

In California there is the report of a midnight raid on HOA members to forcibly evict them. The Courthouse News Series reports (The Foreclosure From Hell) that

“Nine condo residents claim Taser-toting private security guards burst into their homes at 3 a.m. and assaulted them, forcing them into the street in their underwear, in a foreclosure the residents had never been informed of.” 

The security organization for the HOA and the HOA are being sued.  The complaint alleges, among other things, that

“During this approximate two-hour ordeal, the armed men threatened arrest and incarceration, menaced the plaintiffs with weapons, engaged in intimidation, positioning themselves immediately in front of and/or behind the plaintiffs, glaring at them menacingly and invading the plaintiffs’ space.” 

The plaintiffs seek damages for trespass, extortion, assault and battery, false imprisonment, invasion of privacy, conversion and intentional infliction of emotional distress.

In the highly public Travon murder case in Florida questions of HOA negligence are being raised.   In Arizona, for the 5th year, a bill that  re-asserts that public streets within HOA subdivision territories are regulated by the local government and not the HOA was again defeated.   In Illinois, however, the court did put a stop to HOA security people stopping and detaining people on the roads.

The question before us is:  what are the factors, the causes that lead HOA boards to act in such an uppity, defiant manner against their members and the public, as if they were indeed independent principalities?  The simple answer is,  because they can!  Is it the culture within the HOA that is too similar to the experimental conditions of the Milgram and Stanford Prison experiments? (See Why do people harm others in HOAs?)

Is it the public policy that the HOA must survive at the expense of individual rights and freedoms, with members’ losing the privileges and immunities guaranteed to all citizens?  Is it the pro-HOA laws that do not hold the HOA accountable to the state, that presumes that the HOA can do no wrong?  There are no penalties against HOA law-breakers, but there are plenty of state supported penalties that make HOA attorneys rich and force hardship and the loss of one’s home for trivial fines.

With this sentiment, this bias in our culture and society, HOAs have no restraint on running amuck, and on intentionally running amuck as witnessed here with the Gestapo raid.   I wrote about this dangerous slippery slope path in The public policy of the states with respect to HOAs.  In Legislative protection of HOAs: replacing US organic law with HOA organic law I wrote about the disappearance of the social contract and a return to a state of nature, to anarchy.

It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years . . . . And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature.

 Yes, each day, little by little, more and more such acts that were once unthinkable occur as this country speed us along the slippery slope to disaster.  I’m waiting for the knock on the door.  I have my papers ready. 

Wrongful death suit filed against California HOA

A wrongful death suit was filed against California HOA by homeowner’s family. As I wrote in, If Trayvon HOA is sued, who should share the blame?, there’s a lot of blame to go around for creating an atmosphere that the HOA has a “free ride” and is immune from accountability.

According to the lawsuit, the defendants knew by September 2009 that Olga Martinez had a restraining order against her husband, Napoleon E. Castro, and that he posed a potential danger to her.

It was expected that defendants would provide a level of care in whom they admitted to the secured housing area in the gated community and restrict unauthorized visitors,” the suit states. “Defendants breached their duty of care by permitting …Castro to enter the building.”

 

(My emphasis).

Daughter of slain Pacoima woman files wrongful death suit against condo complex’s HOA