Tag: CC&Rs

How far will independent HOA principalities go in usurping police powers

In this Illinois case, Poris v. Lake Holiday POA, the HOA was held to unlawfully assume civil police powers.  Here’s the extent to which the HOA gave the false impression of municipal police officials and their legitimate use of police powers. The private HOA security officer detained the homeowner for about 4 minutes while checking his license info, but admitted he was not a cop.

 The following covenants can easily be viewed as an intentional impersonation of municipal police powers. Note the similarity in verbiage to civil government criminal code and authority (paragraph numbers are from the court’s opinion).

 [covenants]

 ¶ 5 The board is authorized to adopt rules and regulations that the board deems necessary for the best interests of the Association and its members. The board promulgated several rules pertinent to this case. The board adopted a rule authorizing “private security officers” to enforce the Board’s rules and regulations, including the power to “issue citations for violations.” Another rule prohibits members from obstructing officers:

 “No person shall knowingly resist or obstruct the performance by one known to the person to be a public safety officer of any authorized act within his or her official capacity. No person shall fail or refuse to comply with any lawful order or direction of any public safety officer authorized by the Lake Holiday Property Owners Association. A request to examine personal identification, such as a driver’s license, in addition to a member’s amenity pass shall be honored. CLASS A VIOLATION.”

¶ 6 The board also approved a rule to regulate speed on Lake Holiday property: “Unless otherwise posted, the speed limit on all Lake Holiday roads shall be 25 miles per hour. Speed limits shall be strictly enforced. Violations from 1 to 10 mph over the posted speed limit are CLASS C VIOLATIONS. From 11 to 15 mph over the posted speed limit are CLASS B violations. From 16 mph or over the posted limit are CLASS A VIOLATIONS.”

 A Class A violation carries a $200 penalty for a first offense. A Class B violation is punishable by a $100 fine for a first offense. The fine for a Class C violation is $50 for a first offense.

 ¶ 7,(in part)

All officers are required to wear a badge, uniform and “duty belt.” A “duty belt” may “include weapons that the officer is certified to carry on duty.”

 [end covenants]

 ¶ 16 Neither Clifford nor any employees of the Association’s security department have been given police powers by the La Salle County sheriff’s office. Clifford has never been given any authority or permission by any police agency or the La Salle County Board to stop vehicles, use overhead lights, use radar to measure the speed of vehicles or make audio and video recordings on Association property.

 ¶ 28 The security officers employed by the Association are attempting to assert police powers. They have neither the right nor the power to do so. They have only those powers that ordinary citizens have. See Perry, 27 Ill. App. 3d at 239. The practice of stopping and detaining drivers for Association rule violations is unlawful.

 ¶ 35 The Association is not a commercial enterprise in the business of “keeping people secure and free from danger.” Rather, it is a property owners’ association created “[t]o promote and enhance the civic and social interest of the owners of real estate in Lake Holiday Development in so far as those interests relate to the maintenance of Lake Holiday.” Thus, the Association is not a “security company.”

 ¶ 53 Here, Podnar activated his overhead lights, causing plaintiff to pull over and stop. Podnar exited his vehicle, wearing a uniform, badge and duty belt containing weapons. He told plaintiff to wait in his car and took possession of plaintiff’s driver’s license. Plaintiff remained in his car for several minutes until Podnar returned his driver’s license, issued him a citation and told him he was free to leave.

 ¶ 54 Under these facts, plaintiff was restrained by Podnar. . . . Since plaintiff’s liberty was restrained, the first element of false imprisonment was met.

 Poris v. Lake Holiday, 2012 Ill. App. LEXIS 42; 2012 IL App (3d) 110131 (Jan 24, 2012)

 See commentary by Evan McKenzie at Case shines light on how much power private security has when policing neighborhoods (Feb. 24, 2012),

 

CA court upholds HOA suit against real estate agents

This important 2012 California case deals with, among other issues, a real estate agent’s duties to buyers in HOAs. The court found the realtors, acting in a dual agency capacity for the developer and builder, had violated their fiduciary duties to buyers by failing to disclose material facts: false budget numbers to induce buyers, failing to disclose material, public reports showing soil issues.

The Calif. appellate court held:

The statute gave ‘associations the standing to sue as real parties in interest in all types of actions for damage to common areas, including breach of implied warranty causes of action.’

The Realtors were dual agents in that they also represented the HOA members as buyers’ agents. Re/Max acted as dual agent in the sale of three parcels in Glen Oaks Estates, and Dilbeck acted as dual agent in the sale of one parcel in Glen Oaks Estates.

In sum, [the statute] does not replace dual agents’ fiduciary obligations to their buyer clients. . . . The Realtors breached their fiduciary duties as buyer’s agents by failing to disclose certain transactional documents, concealing facts . . . .

GLEN OAKS ESTATES HOMEOWNERS ASSOCIATION v. RE/MAX PREMIER PROPERTIES, INC.
As an aside:

In general, the normal real estate transaction, where there’s no dual agency, involves a selling agent representing the seller, and a different buyer’s agent representing the buyer. In Arizona, for example, the agent owes a fiduciary duty to his “client,” which is defined as the person who makes the commission payment to the agent. The agent “shall disclose in writing to all other parties any information the licensee possesses that materially or adversely affects [the sale]”, but the agent must “deal fairly with all parties.”

However, in almost 100% of the sales the buyer’s agent gets paid from the selling agent under a “co-broke” arrangement. The buyer’s agent then, according to R4-28-1101 of the Commissioner’s Rules, would have a fiduciary duty to the seller as that’s where he gets paid. Isn’t that a contradiction in the laws that creates a conflict of interest in the buyer’s agent? (Of course, the powers that be don’t see it that way – would confuse the issue). So, who’s really looking after the buyer’s interests? It appears dual agency does.

Furthermore, can a licensed agent who is required to take courses in agency, contract and real estate law hide behind the fact that he knows nothing, and therefore doesn’t have material HOA information in his possession? Would that be a reason for the media and government agencies and officials apparent role in an “unspoken alliance of nothing negative about HOAs”? If so, something is rotten in Denmark!

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

Dear Arizona Senators,

I continually am amazed at the opposition to this bill and the mistaken belief that any private contract can supersede legitimate local government. We all know that there is no absolute right to private contracts! HOAs are ignoring their role in a democratic society to obey the rules, as they like to say about homeowners in HOAs. They should follow the rules of this society and go to the planning board for a variance. Like they repeatedly say, “Homeowners can go to the courts, to agencies, to get a fair deal, etc.” but that’s not for the HOA that insists on making their own rules. It is simply a power play as to who rules the municipality.

The legislature has no choice but to uphold public government authority. If problems exist or changes are desired, since the HOA does not own the public roadway, the HOA can do what all citizens are entitled to do, go to their planning board and ask for a variance. The fact that the initial planning board approved these private roadways speaks to the retention of public government authority, otherwise it could have required private streets.

Please bear in mind, since CAI loves constitutional challenges as it fought over the proper delegation of authority to DFBLS, the court ruling in McLoughlin v. Pima that held,

However, it is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control

and

The legislature cannot abdicate its functions or subject citizens and their interests to any but lawful public agencies, and a delegation of any sovereign power of government to private citizens cannot be sustained nor their assumption of it justified, (Emmett McLoughlin Realty v. Pima County, 58 P.3d 39 (Ariz. App. Div. 2 2002), ¶ 7).

HOAs have usurped and assumed public government functions! And we all know accountability to and proper supervision by state the does not exist with HOAs to meet this constitutional requirement. They cannot have their cake and eat it, too! They cannot demand special consideration not to be held accountable and then do as they please.

Please make it clear to all persons that we are one state, indivisible with liberty and justice for all.  Please pass this important bill.

Note:  This bill, SB 1113 and its House duplicate, HB 2030, simple reassert public government control over public streets within an HOA subdivision.  HOAs have fined homeowners for any car parked in front of their homes.

Is there a CAI game plan to rewrite HOA CC&Rs to restrict member voting powers?

It appears to me that the 2012 CAI game plan is to completely rewrite the CC&Rs. This makes it about 1/2 dozen cases that I’ve heard in the past 6 months, and all seem to restrict the powers of the homeowner by not allowing homeowners to vote on important issues.

As an example, the current LA Times HOA column by Donie Vanitzian, “Homeowner association can’t adopt new bylaws without owners’ OK”,  deals with a question of a rewrite of the CC&Rs with provisions to exclude homeowner voting on certain issues involving IRS overpayments. This excellent article touches upon a serious move by  attorneys to further entrench the board of directors as a dictatorship. BEWARE!

One malicious rewrite is to permit minority voting control for assessments, amendments to the CC&Rs, and taking on outside loans/debt (CAI attorney). Minority control comes in the form of, for example as such a bill mandating minority rule was defeated in Arizona last year, a 2/3 vote of those in attendance with a 50% quorum, which gives 1 /3 vote to approve issues. (CAI attorney sponsored).

Now, they are going directly to the members who are well known to be apathetic and there’s a very good chance that they will sign on without even reading the details. One rewrite includes a 50% reduction in the quorum until a quorum is met, which would allow the political machine to adjourn the meeting and recall it every 5 minutes until they win. A second method, as I just witnessed, is to permit a 2/3 vote of the board to settle matters in the event that a quorum is not attained at the second meeting. (CAI attorneys).

In Arizona, SB 1476 would put a stop to CC&Rs that ignore member voting on CC&Rs amendments, and other restrictions on board acts to quash democracy in HOAs.. Minority rule, especially with the well know abuse by HOAs, is a very dangerous power as it would allow the political machine, the clique in power, to completely alter the CC&Rs o completely ignore any voting by the members, even to allowing future directors to be appointed by a “select” committee of current board members. And all would be legal, according to numerous court decisions, so long as the procedures specified in the CC&Rs are followed. Period!

What we are seeing here is CAI attorneys acting to promote seditious acts that undermine our Constitution and democratic society with its basic principal of majority control.

What we are seeing here is CAI creating and establishing HOA fascist governments where the HOA state objectives are first and foremost — to support the HOA corporation aided and abetted by corporate interests – the attorneys and management firms, the “hired hands.” The second part of the fascist form of government, in order for it to succeed, is the need to suppress individual rights and freedoms as we see with HOAs, and as we heard from CAI, “the unwise extension of constitutional rights to the use of private property by members . . .” (CAI amicus brief to NJ appellate court in Twin Rivers).

WAKE UP HOMEOWNERS! WAKE UP! YOUR PRIVATE PROPERTY HOME IN AN HOA IS A MYTH, AND ALL YOU OWN IN YOUR HOME IS THE RIGHT TO MAKE HOA ASSESSMENT PAYMENTS.

KY legislators allow HOA private contract to determine public policy

This failed bill reflects the facts of life that HOA private agreements control the public policy for all citizens of a state. Read this simple bill. It is disgraceful!

In Arizona, the Senate debated such unconstitutional powers of private government HOAs over regulating public streets. (See Arizona Senators debate HOA legal status and The power of private HOA contracts, and other “voices of the people”). HOAs have become the second form of local political government in this country, and have been accepted and supported by state legislatures in violation of their oaths to support the US Constitution.

This bill, an emergency bill for a disabled boy who lives in an HOA, whose parents built a play house in their backyard, without HOA permission, was rejected with 6 out of 14 committee members not voting. I believe the KY legislators caved in to the powers of the HOA industry, and. shamefully took no sides. Disgraceful!!

AN ACT relating to the protection of disabled children.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

âSECTION 1. A NEW SECTION OF KRS CHAPTER 382 IS CREATED TO READ AS FOLLOWS:

(1) Any owner of real property used as that person’s actual residence shall have the right to alter or construct on that property any structure reasonably necessary or convenient for the accommodation or therapy of a physically disabled person residing on that property who has not reached the age of majority, provided that the alteration or construction is recommended by a physician for the accommodation or therapy of the disabled person and the alteration or construction does not otherwise violate local, state, or federal law.

(2) The application of any property agreement or provision arising by deed, covenant, servitude, contract, or other instrument or agreement that would limit the rights granted by this section is hereby declared to be contrary to the public policy of the Commonwealth and any attempted application of these provisions in violation of this section shall be void and unenforceable.

âSection 2. This Act shall be known and may be cited as Cooper’s Law.

âSection 3. Whereas the immediate effectuation of the fundamental rights created by this section is necessary to protect the physically disabled children of this state from pending harm and no good cause exists for delay, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.