Tag: California

The failure of 39 years of CAI seminars: ignore HOA homeowner-member concerns

In keeping with its service to HOA management, and not to the homeowner-members, the Shaw-Lines web page declares, ‘We also provide annual seminars on legislative changes affecting associations’ legal rights.” Now, Augustus Shaw IV seeks input from the management/professional class: Shaw & Lines Lunch and Learn Topic Survey: (Oct. 18, 2011)

Which of the following topics would you most like to see addressed at a Lunch and Learn?

     Show Me the Money – How to Collect Assessments in a Sluggish Economy.
Fair Housing Laws and Community Associations – How to Avoid a Fair Housing Lawsuit.

Mr. and Mrs. Curmudgeon – How to Handle Difficult Homeowners.

Association Record Keeping – What Records a HOA Has to Keep, How Long They Must Keep Them and Owner Records Requests.
Changes in the Laws Affecting Community Associations.

How to Conduct Board Member Training – Key Issues Every HOA Board Should Be Taught.

What Every Community Should Know About Association Insurance.

I’ll Sue! How to Properly Address and Handle Owner Threats of Suit.

Apathy Abounds – How to Increase Member Participation in Your Community Association.

Know Your Acts from a Hole in the Wall – Understanding the Condominium, Planned Community Acts and Non-Profit Corporations Acts.

I ask, and ask: Who speaks for the homeowner?

Definitely not CAI. Definitely not the Leadership Centre or the HOA Academy in Arizona, or any of those associations of HOA associations nonprofits found throughout the states, like ECHO or SCHOA, or those management firm organizations of alleged professionals, like AACM or CACM. And definitely not those towns/cities that sponsor seminars by CAI attorneys and/or CAI trained managers.

I speak for the homeowners! See HOA Constitutional Government and Citizens for Constitutional Local Government.

These websites, and comments under HOAGOV, inform homeowners of their rights, which among others include such topics as,

Of course, I do not expect invitations to speak at these government sponsored seminars to come pouring in, for obvious reasons.

DISTRIBUTION OF THIS COMMENTARY IS PERMITTED, PROVIDED CREDITS ARE STATED, AND URGED IN THE INTEREST OF HOMEOWNER-MEMBERS.

Disclaimer:  Oh yes, for the record, I am not a lawyer and I do not provide legal advice. See a lawyer for legal advice.

HOA email ‘meetings’ – intent of the law — bad faith

Calif. attorney Beth Grimm advises against email meetings as new law goes into effect. In contrast, in Arizona, following CAI Scott Carpenter’s advice to HOAs on “how to adjust to the new laws” (see AZ CAI’s reaction to the “new era of regulation” of HOAs), I’m aware of another CAI attorney making use of “written consent” to bypass the intent of the Arizona law.

And let’s not forget the HOA directors who hide behind “upon advice of their attorney” to get around the laws. They forget, and the HOA attorneys apparently don’t advise them accordingly — especially at those town sponsored seminars — that under ARS 10-3830(C), “A director is not acting in good faith if the director has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection B unwarranted.” “B” refers to reliance on other experts like CPAs and attorneys.

While a legal mechanism, is the avoidance of the intent of the law in this email instance a violation of good faith to the members? I think so! Good faith – “honesty and integrity, or an honest intent to act without taking an unfair advantage over another person.”

In this instance, can the director play “dumb” and say, “I didn’t know the law” and get away with it? Hell no!

See Grim blog, EMAIL “MEETINGS” – MORE ON THE TOPIC

Why is CAI member firm of Adams Kessler allowing criticism of LA Times HOA column?

Scanning the Adams-Kessler Blog, Davis-Stirling Condo Law, under Davis-Stirling.com (not a government website) revealed some 6 comments critical of the LA Time column written by Stephen Glassman and Donie Vanitzian. Just in the past 3 weeks, and nothing before the week of Sept. 18th. I am wondering what’s up?

Glassman and Vanitzian are also the authors of Villa Appalling!: Destroying the Myth of Affordable Community Living (2002). Vanitzian is the author of the Thomson-West legal treatise, California Common Interest Development — Homeowner’s Guide (2006-2007). Glassman is a practicing lawyer and Vanitzian holds a JD degree.

Lawrence Stirling, co-author of the California laws, is a Senior Counsel at Adams Kessler. Adrian Adams and Gary Kessler are members of Community Associations Institute, CAI, and Kessler is active in CAI’s legislative action committees (LAC) helping to shape the national lobbying organization’s (that’s CAI’s) view of the HOA industry. Among other things, in 2004 CAI had cautioned the NJ appellate court in the Twin Rivers free speech case against “the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) . . . .” (Amicus curiae Community Association Institute (“CAI”), Committee For A Better Twin Rivers v. Twin Rivers Homeowners Association (TRHA), Docket No. C-121-00., p.19).

It seems that CAI California is feeling the heat from homeowner advocates like CAI is feeling in Arizona. The criticisms of the column shown below, except for the outright hostility and ignorance of the posters of the Oct. 2nd and Sept. 25th entries, centered around the authors’ statement that the hired-hand (my wording) management company people have no place at a board meeting. “Management employees, like any other vendor, do not belong at association board meetings. Although they may be invited to attend, they should not be taking minutes or offering suggestions on the conduct or content of the meetings.” This reply came under the September 4, 2011 column heading, How can you break management’s hold on board? It concerned a homeowner’s letter that the “board is so entrenched with this management company that it can no longer act in the best interests of our owners and the association.”

I was surprised that A – K did not provide a response with respect to the legal status of the management people, who are neither board nor HOA members. In my view, they are like the typical member who can be seen and not heard unless asked a specific question, and otherwise not participate in the discussions.. Otherwise, the cry of “we are poor volunteers” rings hollow as the board has turned the management of the HOA over to hired hands, while forgetting its ultimate legal responsibilities to the HOA, and to oversee acts and actions of its management agent.

Given the Blog as is, with its entries and lack of A – K responses, it seems that CAI is feeling the heat and felt the need to counter-attack voices for homeowner rights, and to silence Glassman & Vanitzian, the true advocates who are fighting for homeowners who live in regimes that deny their constitutional protections.

Adams Kessler Condo Law Blog

(Oct. 2)  LA Times. The discussion I had with the LA Times “Readers Rep” in 2005 got me nowhere. I think having their authors billed as HOA specialists is akin to having a self-proclaimed racist writing a column on fair housing. Sure, they are somewhat familiar with the issues but their take on them is biased and does not serve the public well. -Marla H.

(Sept. 25) LA Times. The LA Times columnists who pontificate about HOAs and present such misleading information regarding the operation of HOAs are a thorn in everyone’s side. Their views are so inaccurate and counterproductive to creating harmony between owners, board members and managers. Surely there is some avenue for rebuttal? Why is the LA Times so resistant to permitting rebuttals to the content of the column? Any ideas as to how we can find an avenue to present truthful information? -Diana S.

FEEDBACK (Sept 18)

LA Times #1. Thank you for your thoughtful response to whether managers should attend board meetings and take minutes. Sorry to say, the Los Angeles Times places little value on providing balanced information. The writers of the column have a clear bias against boards, attorneys and managers. If they could, they would abolish all HOAs. Why would you abolish a form of ownership that has made affordable housing possible to millions of people? I think it’s important to make it very clear that these people give bad advice and boards should not rely on their column for any guidance. -Judy C.

LA Times #2. Thank you for your rebuttal to the L.A. Times article!!! -Jan H.

LA Times #3. It is clear that the author has a bias against management companies. The manager’s job is to provide advice to the board that keeps them on the straight and narrow. Can the board assign some of its duties to its manager? You bet! Should it? This is a matter of contract, but in most cases it is a resounding “yes.” It has been my experience that the larger the association, the more complex it becomes, and with this comes the need for a manager with greater and more diverse skill sets. -Jim S.

LA Times #4. Managers at meetings???? Of course. We pay them to help manage and advise us even though all final decisions come from the BOD. They advise us when we might need an attorney’s advice and many other issues a board member might not be privy to. Come on guys wake up and smell the roses! -Gloria F.

Court holds HOA elections are a matter of public interest

A California appellate court held that HOA elections are a matter of public interest and annual meetings are a public forum. Candidates are limited public figures with respect to the elections. Therefore, the anti-SLAPP law applied with respect to statements made by the candidates and their speech is protected.  A defamation lawsuit based on statements made by the candidates must survive a motion that the lawsuit was made to stifle public participation.

 

In Cabrera v. Alam the court held,

 

We reverse and remand with directions to grant the anti-SLAPP motion. Defendant carried his burden of showing the defamation claim was based on protected activity under section 425.16, subdivision (e)(3). We hold defendant’s statements were protected activity because they were made in a public forum at a homeowners association’s annual meeting and concerned an issue of public interest, namely, the qualifications of a candidate for office in the association. Plaintiff failed to carry her burden of showing a probability of prevailing on the merits of the defamation claim. Having thrust herself into the controversy surrounding the election of the association’s board of directors, she became a limited purpose public figure who was required to show defendant made the allegedly defamatory statements with malice. Plaintiff failed to produce any evidence showing defendant made the statements knowing them to be false or recklessly disregarding their falsity.

 

Another step toward the recognition of the reality that HOAs are indeed de facto governments and need to be recognized as state actors, and brought under the protections and prohibitions of the US Constitution.

CAI acknowledges “unconstitutional taking”, but not from homeowners

CAI-CLAC (CA CAI lobbying committee) has apparently discovered the meaning of “an unconstitutional taking” when it object to the new California law, SB 209, that permits homeowners to install electric vehicle charging stations in HOAs. CAI argued in its July 26, 2011 email release (not shown under HOT BILLS on its website), “a very significant problem remained unresolved in that the measure essentially condones an unconstitutional governmental “taking” of property that is commonly owned by all the members for the benefit of one. (My emphasis). I’m impressed that CAI acknowledges constitutional law.

 

However, CAI, that national leading HOA educational organization — as it likes to promote itself, but is truly a business trade group to help its members make $$$$ — has no quarrel with the taking of homeowners’ constitutional rights, freedoms, liberties, privileges and immunities as a result of the application of the common law of servitudes over constitutional law. The taking of constitutional rights and freedoms, and the violation of the equal application of the law and due process protections for homeowners in HOAs by constructive notice — the simple posting to the county clerk’s office — binds buyers to the CC&Rs sight unseen, never mind the absence of explicit consent.

 

CAI seems to take this fascist state approach, where the goals of the state, the HOA, come before individual rights, is an absolute, sacrosanct, untouchable right conferred upon the HOA, without regard to the US Constitution. The justification for the legitimacy of the HOA government is the lame excuse that the homeowner remains in the HOA and does not leave its jurisdiction, thereby giving his implied consent to be governed and to the surrender of his rights. But, the HOA is not a de jure public government that functions without any contract. The HOA is a contractual arrangement, and this application of public doctrine is an constitutional taking of the homeowners’ private property rights.

 

Sadly, state legislators see no evil, no rejection of the US Constitution, and the courts allow this secession from the Constitution to prevail. What is the purpose of a constitution if any two people can sign a document that says we reject the Constitution? What is happening to America?

 

As we discovered with regard to Arizona’s secessionist feelings earlier this year, Art. I, Section 10, Clause 3 of the Constitution prohibits compacts between the states without the consent of Congress: “No state shall, without the consent of Congress . . , enter into any agreement or compact with another state”. And to allow private citizens to do so makes a mockery of the Constitution and the American system of government.  Are we already in The New America of HOA-Land? 

 

Read on CAI, read on and learn more about constitutional law.