Tag: CC&Rs

Restoring American principles and way of life in HOA regimes

This is another HOA Enlightenment Movement article on speaking frankly and openly about HOA abuse, about common sense and reasonableness, about the rejection of the HOA attorney insistence on CC&Rs enforcement uber alles, and about legal decisions concerning the rights, freedoms, privileges and immunities of those living in HOAs who have not surrendered their US citizenship.  The fact that the media are publishing more and more about “the Truth in HOAs” signals the twilight of the unspoken alliance of  “No Negatives About HOAs.”  It’s about time!

I congratulate the author, Eve Samples, for spreading the word about this event where it cost an HOA $250,000 in legal fees over a homeowner’s screen doors.  I congratulate Martin County, FL Judge Roberts for her perspective that returns America to the people and not defend these usurper HOA private governments. I congratulate TCPalm for publishing this return to sanity incident.

Judge Roberts held that the HOA was

championing the letter over the spirit, evasion over the truth and quibbling over common sense. . . . The truth, despite evasive answers to the contrary, is that he [the homeowner] was never going to get approval, and rather than deal with that issue directly, the petitioner [HOA] chose subterfuge to create the impossibility.

The HOA president, a True Believer, said she would not change her attitude.   “[I would change] Nothing, to be honest with you, because the violation was there.” The new president, a Reformer, believes that,

it might be reasonable to ask residents to vote on legal action that exceeds a certain dollar amount. . . .  to have litigation reviewed by experts other than the association’s attorneys, to ‘see if the association’s position really is well founded.’ 

(This is a direct reference to the rules of civil court, generally R 11(a) requiring the attorney to make a reasonable inquiry into the facts.)

Those seeking justice and fair play in their HOA should spread this Commentary to all other interested parties to help them see the light.  We all are Americans living under the US Constitution, and must be subject to the equal application of the laws, not to special real estate laws.

Is CAI’s ‘lack of candor to the tribunal’ intentional?

In my recent complaint letter to the NJ Supreme Court (Complaint filed with NJ Supreme Court for CAI lack of “candor to the tribunal”) arguing that CAI lacked “candor to the tribunal” — a violation of attorney professional conduct, RPC 3.3 —  I also charged that the misrepresentation was not accidental or simply an oversight, but was intentional.  “This failure is intentional as evidenced that both the CAI-NJ and CAI ‘Central’ websites do not refer to 501(c)6 status at all.”   

Evidence was provided from several web pages from both CAI-NJ and CAI “Central” that clearly show a co-mingling of representations, an implication that CAI is an educational organization with HOA membership,  and a failure to clearly state that CAI is a 501(c)6 trade organization.

Furthermore, the very fact that CAI-NJ found it necessary to prepare a standard form to justify the validity for HOAs to pay CAI membership fees shows an awareness by CAI of a possible conflict of interest.  It shows CAI advocating for its own agenda and for its HOA clients to breach their fiduciary duties to their members under the law and governing documents.

Further evidence of intentional misrepresentation and a complete disregard of the truth can be found in a 2008 amicus curiae brief to the Colorado appellate court in Booth Creek Townhouse v. Bassick (No. 07 CA 2531)[1].   Here, 3 years after dropping HOA membership in 2005 and 16 years after becoming a business trade group, CAI repeats its boilerplate certification of interest and justification to assist the court.

CAI is a national educational organization . . . . Nationally, members include . . . homeowners associations and condominium associations . . . .” and “CAI is uniquely situated to provide information to this court because all parties within this industry are represented by this organization. 

It would have been entirely acceptable if CAI had just indicated that it promoted and supported the Colorado version of UCIOA, CCIOA (effective 1992) and its subsequent amendments, and let the statutes speak for themselves.  But, this alone would indicate a bias toward protecting HOAs.

No, the evidence is quite clear and convincing that CAI’s repeated misrepresentations were not just a slip of the mind.  These persons are not just Joe Schmoes, but self-proclaimed community associations experts and who provide seminars to the uninformed public.

[1] While a search of Colorado court cases fails to show a record of this case, CAI nevertheless did prepare and file this brief.  “CAI Files Amicus Brief on Behalf of Homeowner in $550,000 Judgment (10/08)”  (Link found on http://www.caionline.org/govt/news/Pages/CAIHeads-UpArchive.aspx June 21, 2012).  (The homeowner charged HOA for failing to perform its maintenance duties. CAI believed that the HOA’s failure to maintain the property was “egregious,” and the “association was so blatantly . . . and unwilling to perform its required duties.”)

 

HOA member Declaration of US and State citizenship

 I am proposing that the following be  urged as a bill in your state, which requires a mandatory statement of HOA member citizenship. (Revised August 1, 2015).

Declaration of US and State citizenship

With the understanding that the association, as a private entity and not a subdivision of the state, and as a de facto but unrecognized private government, is not subject to the restrictions and prohibitions of the Fourteenth Amendment to the US Constitution that otherwise protects the rights of the people against actions by public government entities;

and that the governing documents in all legal practicality serve as the subdivision’s constitution, taking precedence over state laws and over the state and US Constitutions unless specifically denied by any such laws or legal precedence;

Therefore, the members of the association, having not waived or surrendered their rights, freedoms, privileges and immunities as citizens of the United States under Section 1 of the Fourteenth Amendment, and as citizens of the state within which they reside, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, or be amended to comply,

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.

Furthermore, any governing documents of an association not in compliance with the above shall be deemed amended to be in compliance, and notwithstanding the provisions of any law to the contrary, a homeowners’ association shall be deemed to have amended its governing documents to be in compliance.

Are HOAs part of this country, this community, or are they secessionist?

“While Terry believes HOAs wield far too much power, Marta Gore has a different opinion. “We all want our property values to increase. In order for them to increase, we all have to hold to a certain standard,” said Gore.”

And that requires, as history has well demonstrated, strict enforcement of the rules to coerce obedience to the objectives of the state[1], which flows not from the US Constitution, but from the HOA organic law based on The Homes Association Handbook and UCIOA[2]. Wait, wait . . . do you hear the refrains of Deutschland uber alles, the adopted hymn of HOA-Land?

HOAland, HOAland über alles,

Über alles in der Welt,

Wenn es stets zu Schutz und Trutze

Brüderlich zusammenhält.

. . . .

HOAland, HOAland über alles,

Über alles in der Welt!

HOAland, HOAland above everything,

Above everything in the world,

When, for protection and defence, it always.

takes a brotherly stand together.
. . . .

HOAland, HOAland above everything,!

Above everything in the world!
“Gore is with Texas Community Association Advocates; an organization that represents hundreds of HOAs in Texas. The McKinney resident says a few abusive HOAs give the rest of the industry a bad and undeserved reputation.”

Why are they continually opposing reforms to hold the rogue and intentionally wrongful HOAs accountable to the state, and to demand good corporate citizenship.  Are they saying that it’s not the job of our HOA, that it’s not in the CC&Rs?

 See Powerful HOAs Leave Many Texans Feeling Homeless

References

1. HOA Gestapo tactics — the slippery slope steepens

2. Legislative protection of HOAs: replacing US organic law with HOA organic law

Findings of the 2011 Colorado HOA problem report

The findings of the Colorado HOA problem identification report are as follows, and substantiate the fact that HOA democratic governance is sorely lacking:

 

What we discovered was that the complaints we received primarily involved the board of director’s failure to follow corporate governance rules and procedures of the HOA; the transparency of the board of directors, particularly as it related to the finances of the HOA; and harassment and bullying of homeowners by the board of directors and management company by arbitrary fining, preclusion from providing input into the associations’ affairs, and verbal harassment. These complaint types were much more serious than the aforementioned three P’s because they substantially interfered with a homeowner’s ability to enjoy his property and to have avenues of democratic participation in the HOA to remedy their issues.

An additional and perhaps one of the more troubling complaint types the Office heard was that the HOA board or manager was harassing, discriminating or retaliating against homeowners. Many homeowners felt that their boards had singled them out and were arbitrarily fining them for violations, when they were not in violation; engaging in selective enforcement of covenants; and precluding them from participating in meetings. . . . A frequent complaint heard was that older board members were discriminating against younger homeowners or where older homeowners felt they were discriminated against by younger board members.

 Another troubling subset of complaints involved diversion, fraud, and theft. . . .  The most frequent complaint types filed against managers mirrored those pertaining to HOAs, including access to records, transparency and communications, not communicating with homeowners, harassment and selective enforcement of covenants

 

And the report makes the following, not unexpected, observation, which can apply to all HOA legislation in all states (emphasis added).

 

The drafters of SB-100 and SB-89 obviously understood the need for statutory protections to homeowners, but the issue homeowners are having is not that the law does not address their specific issues, rather the law does not provide a realistic or economic means to seek redress.

 

 The lack of such realistic means for redress can be found in the public policy of each state to support and protect the HOA even against unjust and unconstitutional denials of homeowner rights and freedoms.  One very effective and proven means is to provide for effective penalties against HOA violations of the laws and governing documents in the name of the people.  That means sufficient fines and even misdemeanor charges as warranted, especially when considering such penalties are imposed for wrongdoing by a government official or agency.

 References

1.       Colorado report on HOA problems needs to be corrected.

2.       “Hannaman Report”, (Similar report in NJ, 2002).

3.       The StarManPub  videos on the Florida House HOA hearings (2008).