CC&Rs – Page 17 – HOA Constitutional Government

Behold the power of the HOA over your private property

Joanne McCarn owns her home, but her homeowners association has taken it over and calls the sheriff’s office if she comes near the property. What’s more, the Bridgewater Community Association evicted her tenant, changed the locks and moved in its own renter. “This is not a foreclosed house,” McCarn said. “This is still my house. It’s unfair how much power the HOA has. It’s so surreal to me.”

Homeowners association rents home it doesn’t own

Everyone should be aware of the slight-of-hand redefinition of the real estate ownership known as “fee simple.” Read your deed that states the title to your HOA controlled property. It commonly says “in fee simple,” where, at the state time and in the same deed, you surrender so much of your rights and interests. And legally without the need to see, or read, or consent to this surrender. Just take your deed with that two line, un-emphasized statement that says, “subject to covenant, conditions and restrictions,” followed by “as may apply” or “if any.”

This legal real estate form of title/ownership meant an “absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of “fee,” but is used to show the fee (absolute title) is not a “conditional fee” (my emphasis). So, what does “fee simple” really mean in regard to these gross surrenders of rights and interests in your new HOA controlled home?

Returning to this nasty incident by the HOA,

In Solomon’s view [an HOA attorney], that doesn’t make it right — or legal. It’s more a measure of how complicated the housing bust has grown.

Judges rely on what rights attorneys tell them their clients are afforded under the law,” Solomon said. “If there’s no attorney on the other side to argue that it’s wrong, the judge most often takes the word of the attorney and grants the motion. Plus, these judges hearing these cases usually are not experts in real estate law.” [Nor HOA law].

Solomon and other legal authorities contacted by the Tribune say the eviction may be legal. The reason: McCarn moved a tenant into the house without paying off a lien the association had imposed. But there are no legal grounds, Solomon said, for the association to change locks and move in another tenant. The association imposed the lien in 2009, but McCarn said she never learned about it until later, when the association persuaded a court to evict her tenant for nonpayment of the rent. The association had demanded that the tenant stop paying rent to McCarn and pay it instead.

Just another “gotcha” when it comes to the powers of HOAs, protected by state public policy. Just another example of an innocent homeowner being forced to protect her rights by going to court. And hopefully, as quoted above by attorney Solomon, she brings a competent lawyer with her.

AZ Admin. Law Judge upholds state law over CC&R contract

It is refreshing to see that the Arizona Office of Administrative Hearings decided a complaint that upheld state law over the CC&R contractual agreement. The ALJ held, “The preponderance of the evidence shows that the Gadsden flag was at some time an official flag of the United State Marine Corp,” thereby upholding ARS 33-1808. (DBFLS/OAH petition, Steadman v. Esquire Village HOA, No. 11F-H1112004-BFS (April 9, 2012)). This statute reads,

Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor display of any of the following: 1. The American flag or an official or replica flag of the United States army, navy, air force, marine corps . . . .

The HOA argued that “the Architectural Review Committee can regulate aesthetic improvements that can be viewed from the street such as a flagpole and flags flown on it,” failing to understand the explicit and straight forward wording in the statute, “Notwithstanding any provision in the community documents.” Or was it the HOA attorney’s lack of understanding.

Furthermore, the HOA obtained an “opinion” from the AZ Legislative Counsel that he believed that the Gadsden flag was not protected under the wording of the statute. It was rejected as not being legal opinion, nor was there an affidavit presented to the hearing. In apparent desperation, the HOA testified that in the CAI lobbyist law firm and Carpenter Hazlewood press release, Carpenter Hazlewood doubted that the Gadsden flag was protected. Also dismissed.

The HOA’s management firm even argued that the flag was not explicitly mentioned in the statute, so therefore it was not protected. Another instance of narrow readings and failure to accept the fact that there are laws and doctrines outside the planned community act to which HOAs are bound to obey.

Yes, no wonder why the CAI layers have fought so hard to squash OAH adjudication of HOA disputes.

Reference

KY legislators allow HOA private contract to determine public policy

FL supreme court upholds private contract over constitution

Does civil government rule or does it submit to private HOA groups?

The power of private HOA contracts, and other “voices of the people”

Looking for justice in an HOA? Look here first!

In the recent California case, Sui v. Price, the plaintiff owned a van for 12 years, and parked it in their reserved parking space. For the past 4 years, the van was inoperable due to a damaged engine, but remained locked in the parking space.

In 2006 Price, the HOA president, caused an amendment to the Rules prohibiting inoperable cars to be approved, and had the van towed. Where have we heard this before? A $1,700 fine was levied on Sui, which affected his credit rating and ability to refinance his home. The homeowner sued for breach of contract and several tort claims, based on an intent to harm the plaintiff, and sought $58,000 in punitive damages. Another case of the effects of ex post facto amendments, when the doctrine of estoppel by laches would be very applicable in favor of the homeowner.

There is no statement of ”an unsightly intrusion” caused by the van with a damaged engine — no fact of a beat-up body, or no tires, etc. California law allows the removal of a vehicle in violation, presumably after 96 hours of notice. The complaint was dismissed. The court dismissed the fact that Sui was just one individual with an inoperable vehicle, and that the CC&Rs prohibit rules that discriminate against member. Forget about the holding that the CC&Rs supesede the Rules.

The court only looked to the the reasonableness of a covenant, relying on,

Simply put, there is nothing unreasonable about prohibiting the open, long-term parking of disabled vehicles. The association was perfectly reasonable in prohibiting this unsightly intrusion upon the aesthetics of their common interest development. (emphasis added).

And that is the danger of the “general interest or general purpose” doctrine – almost anything can be rationalized and justified when isolated and only considered by itself. So the court chose – it was a validly passed amendment, and those other, unaffected members, could undo the amendment. Is this communalism or socialism?

We see no reason to apply a different test for reasonableness of an association’s operating rules, especially since a rule adopted by the association’s board may be reversed by majority vote of the homeowners at a meeting called on petition of only 5 percent of the separate interests in the association. (emphasis added).

Here again the court diminishes individual rights for a perceived common good of the community in what many would call socialism. It’s disturbing that the homeowner in these cases is not compensated for a loss in benefits by being a member of the community, while others are held to benefit. Another overlooked requirement for upholding valid amendments.

In the public arena, the homeowner would have received compensation for this “taking.”

If Trayvon HOA is sued, who should share the blame?

As indicated in the media and earlier (What is an HOA’s duty of care liability to its members and to all others?), the HOA could be sued under a number of legalities as determined by the facts. It is important to ask what factors led to the use of Zimmerman by the HOA. Under the legal doctrine could the homeowner members and even the public policies of the state that amount to a “hands-off” accountability toward HOAs — they can do no wrong — be held liable?

The latest media report (Homeowner association could be sued in Martin case) reminds everyone that the homeowners would most likely have to reach into their pockets.

“So, if you’re going to send out a newsletter saying, ‘Hey, he is the captain. Whatever he says goes,’ you have now basically rented a free police officer for your neighborhood,” Clark said. “He certainly took on that role with the homeowners association, and it seems to me that they recognized that.”

Who would pay in the event of such a lawsuit would probably be determined by the type of insurance coverage the association has, Clark said. Some policies may be wide enough to cover Zimmerman’s actions. If there is no policy or the policy in place is very narrow in its coverage, homeowners likely would have to pay out of their own pockets through higher monthly assessment fees because most associations don’t have very deep reserves, he said. He noted that policies typically cover about $1 million.

Many will cry out that it would be unfair and just to make the homeowners pay for the neglect, if true, by the board. But would it? It is obvious that the board of directors, the legal body responsible for managing the HOA would be first and foremost. But what about the homeowners themselves, who have oversight control through the election and recall of board members?

Under a “ re ipsa loguitor” (a form of circumstantial evidence that permits a reasonable person to surmise that the most probable cause of an accident was the defendant’s negligence) theory, do the homeowners have a share of the blame in actions by the HOA’s agents? Would the fact that HOA members are well known to apathetic with respect to the acts and actions of their elected boards absolve them of any failure to act?

In turn, the homeowners could argue that the homeowners’ hands are tied, for the most part, by the adhesion contract CC&Rs that permit an imbalance of powers to the HOA over the rights and liberties of the members, and by statute. That the ineffective pro-HOA state laws reflect a public policy in support of the survival of the HOA at the expense of the homeowner. (See The public policy of the states with respect to HOAs).

Laws that have no enforcement penalties against HOA board wrong-doing may explain some of the members’ apathy — “What’s the use?” You can’t fight city hall.” Laws that Alexander Hamilton called, “recommendations.” “If there is no penalty [for] disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” (Federalist #15).

It is difficult to understand the rationality for this hands-off policy that flies in the face of our system of governance, with its checks and balances and separation of powers doctrines felt necessary to restrain the power of government. “If angels were to govern men, neither external nor internal controls on government would be necessary.” ( James Madison, The Federalist papers, # 51).

In answer to the question posed here as to who should share the blame, the answer must be “all the above.” And state legislatures are in the power seat to make the needed changes to fulfill the special interest propaganda of healthy and harmonious communities. All that the state legislatures have to do is to do justice and SAY NO to the special interests!

Was I wrong in 2006 about CAI and HOA independence?

My research into the historical role of CAI can be found in the 2008 The Foundations of Homeowners Associations and the New America, “Part II, The National Lobbyist for HOA Principalities.” Part II is subtitled, “Community Associations Institute: Dominating the Emergence and Acceptance in America of a Quiet Political Revolution in Authoritarian, Contractual Private Local Government.” It was primarily based on the 2005 book, Community Associations, partially funded by CAI and ULI and written by Donald R. Stabile.

I concluded Part II with,

In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors, on local community governance through the adoption of uniform planned community acts that perpetuate the current anti-American HOA governments. In effect, the super, privatized agency to replace the US Constitutional system of government.

This was written back in 2006, before the 2008 revision to an eBook and the 2010 addition of Part III.

The subsequent acts and actions by CAI include the behind the scenes support for imposing and promoting the top-down, “one law fits all,” UCIOA laws for adoption by the states. Its subsequent acts and actions also include positions taken before state legislatures over the years that support and reinforce the denial of due process and the equal application of the laws for HOA members. And there is CAI’s performance as presented in CAI continues to ignore the Constitution for the HOA constitution that clearly makes the case for CAI’s rejection of and secession from Constitutional government.

Some may call such behavior, seditious.

I don’t think I got it wrong.

Reference

Seditious: “Given to or guilty of engaging in or promoting sedition.”

Sedition: “Conduct or language inciting rebellion against the authority of a state.”