Tag: CC&Rs

the Truth in HOAs poll message is quite clear

In the Introduction to the Gutenberg Press ebook publication of Aristotle’s Politics, A. D. Lindsay wrote, “The existence of force is for Plato and Aristotle a sign not of the state but of the state’s failure. . . . the state represents their common agreement, force their failure to make agreement complete.”

The champion of the people, Thomas Jefferson in his 1801 inaugural address, stated, “That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.”

Evan McKenzie, in Beyond Privatopia, warns that, “Shifting political authority to relatively invisible boards of directors who are basically beyond democratic accountability but who control enormous amounts of money may be a dangerous practice.”

In contrast to those CAI, industry sponsored “satisfaction with HOA” surveys, a very direct and simple poll is being conducted on the internet. It addresses the issues of the legitimacy of HOA governance in regard to the validity of a genuine consent to be governed, and a surrender or waiver of an individual’s rights, freedoms, privileges and immunities. It asks the readers directly, ”Would you sign, or would have signed, the Truth in HOAs Disclosure Agreement?” (See Truth in HOAs disclosure poll — please vote your conscience<.

After just 4 days, the results have shown a steady outcome, with at this writing,

  • 83% responding to, “NO — Would anyone in their right mind knowingly sign such an agreement?”

  • 16% responding to, “NO — I won’t agree to accept such conditions although I want to protect my property values.

  • And one lonely vote for, “YES — I readily accept the conditions, and I want to protect my property values.”

  • and no responses to, “YES — I had no choice for comparable housing, so I accept the conditions.”

The absence of any support for choosing an HOA for its alleged property value protection must be noted. This absence allows for some important conclusions. Nobody has gone on record, even anonymously, to support what many have expressed as the outrageous propaganda by the pro-HOA factions in our society. This propaganda, in its fullest argument, declares that the people openly embrace the HOA concept and fully and knowingly consent to be governed by the HOA regime in every way. The lack of any supporting response, however, seems to indicate some embarrassment of having to admit to a falsehood. To indicate some feeling of guilt. A realization that if they respond YES that they will be rejecting our democratic system of government for empty promises of a few pieces of gold So, they cannot admit to it by voting YES.

It is also interesting to note the 16% response to rejecting the Agreement, but affirming the desire for protecting property values. Not presented here, but there are other means of providing for the HOA benefits that do not violate our principles of democratic government. One such proposed mechanism exists today, but the people have been conditioned to accept repressive private government over no public government with all its protections. (See my 2004, A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters<.

It appears, in spite of outcrys and laments of defending the Constitution, that state legislators have adopted the attitude of the Emperor’s council of advisers in The Emperor’s New Clothes, and allowed themselves to be swayed by fast talking self-anointed pundits. They have allowed this state of affairs to exist, and to continue to grow. Example: in Beyond Privatopia McKenzie tells of a Madison, MS ordinance (10-406.14, 2006) that makes it unlawful to violate the CC&Rs and allows the HOA to file a civil court complaint.

And he presents the first steps in an explicit symbiotic relationship between cities and HOAs with the creation of a “Congress of Neighborhoods<"in Gilbert and Chandler, AZ that “formally links cities with associations” in a number or areas, including HOA educational seminars. How about constitutional law and government 101 seminars? None. The “Congress” sounds like the beginnings of The United HOAs of Arizona

The message of this Truth in HOAs Disclosure Agreement poll is quite clear. And again I ask, “Who will protect the people from powerful factions?”

Twin Rivers and NJ HOA free speech rights, redux

Here we go again! Once again revisiting the question of free speech rights to display signs in a New Jersey HOA. In Mazdabrook v. Khan the appellate court revisited Twin Rivers and the underlying “test case’, State v. Schmidt, but with a different outcome in favor of free speech. I find it very interesting how our judicial system analyzes and bisects broad legal principles into 1001 “and, if or buts” micro-segments. How is the average person to know what is legal and what is not? Must he go to an attorney, who may or may not know but will take you to court to find out?

In Mazdabrook the homeowner placed campaign signs for his election as major of the town, not a for sale sign, but the HOA had governing documents permitting only for sale signs and no others. The court said No, No, No, that’s content-based restriction on commercial advertising and a constitutional violation of free speech rights and a total ban on other signs. In contrast to Twin Rivers, the HOA sign restriction to allow a sign in every window and one outside sign no more than three feet from the house was held not to be an unreasonable burden on the owner’s free speech rights. It cited the Restatement of Property “suggestion” that a covenant is not valid if it “not mentioning the obvious that a covenant is also invalid if it were unconstitutional.”

See, as to another question of reasonableness, the NJ Esposito case, In NJ, HOA boards do not have to be reasonable, and go figure how our judicial system works. See also the link to the Paula Franzese and Steven Siegel critique of the Twin Rivers decision in Rutgers Journal articles on HOAs and Twin Rivers case.

OF SPECIAL INTEREST and importance is the dissenting opinion of a judge who addressed such questions as: the waiver of one’s rights when simply taking possession of his deed, the implied consent to be governed, and a surprising reference to the waiver of ex post facto rights. Where did he get that from??? I wonder?

I’ve been told that the appellate decision has been appealed to the very same NJ Supreme Court, but oral arguments have not yet been heard. Also, the Rutgers Constitutional Law Clinic under Frank Askin, the party that represented the homeowners in Twin Rivers, has filed an amicus curiae brief for ACLU, and will be allowed to make an oral argument.

Cases

Mazdabrook v. Khan (N.J. Super. A.D., 2010, unpublished).

CBTR v. Twin Rivers, 929 A.2d 1060 (2007).

State v. Schmidt, 423 A.2d 615 (1980).

Want more neighborly love? In an HOA??

 

I submitted the following comment to the shreveporttimes.com article, “A sign that we need more neighborly love.”

 

HOAs were never really about neighborly love.  They were promoted as such a fellowship of people with a common goal, “building better communities” and “fostering vibrant, harmonious communities” by the national lobbying organization.  But, in reality, they are highly divisive and adversarial because strict enforcement of often arbitrary and capricious rules abound, enforced by the “protection agency”, the HOA, whose directors are reminded that they can be sued for not enforcing the CC&RS or declaration.  Couple that with aggressive HOA lawyers whose income is not based on contentment and neighborly love, but on adversity that leads to the courtroom. It’s in their best interests to preserve the HOA in its current form.

This authoritarian form of government, backed by pro-HOA laws to inflict severe penalties on homeowner offenders but give a slap on the wrist to HOA offenders, make an excellent environment for the power seekers and misguided true believers who believe that they  are part of a grand and glorious new America. And for the profit-seeking developers, HOA vendors and lawyers.

IF YOU THINK ABOUT IT, HOW ELSE CAN IT BE?  No country, no community has ever obtained strict compliance to rules that are aimed to preserve the state, like Nazi Germany  Communist Russia, without imposing restrictions on the rights and freedoms of its inhabitants  “in the name of the state.” Its corporate form of government is no different from any other business where there are the managers who control and the people who are to obey.  HOA directors are in the “management” class and homeowners are in the “employee” class, even though the “employees” may also be owners of the corporation.  And we all know that management does not have the 100% whole–hearted agreement and support of its people. 

Yet, the courts and state legislatures truly believe that the board speaks for the members on all matters, great and small. That the HOA is imbued with public government attributes and, ignoring the reality of a contract, by merely living and remaining subject to the HOA the “employee” surrenders all his rights and freedoms contrary to constitutional law. But, as we all know, how many people, employees, work and remain at a business for valid reasons other then that they fully consent to be governed by the corporation? The public officials have adopted this “remaining within the HOA” argument not because it is valid, but because it offers a plausible defense for their actions.

Want more neighborly love?  Hold HOA boards accountable for their actions, and provide protections for the rights and freedoms on the owners.  Forget the “we don’t want government” and get to “we want the same government protections as all others.

What the HOA laws say and don’t say, and unjust narrow readings

 

The unjust HOA statutes on the books in almost all states were written with the help and guidance of the national pro-HOA lobbying organization known as Community Associations Institute – CAI. Many of these laws, in addition to a narrow reading for questionable Rule 11(a) litigation,  use phraseology leading the reader to believe that HOAs are fair, just and democratic governments. But, when the uniformed read and apply them, like in the case of many HOA managers and boards, they adopt an unjust strict and narrow, “black and white” reading of the words.   

A few examples, as commonly found in both the CC&Rs and statutes, are: 1) with respect to violations alleged by the HOA before it may fine a member, “after an opportunity to be heard”; and 2) with respect to homeowner access to HOA corporation records, “privileged communication” or “attorney – client privilege,” and “contemplated” or “pending” litigation. The attorneys well know the legal concepts behind these terms and how they are unjustly used by the unknowing to the detriment of the homeowner.

First, with respect to HOA violation hearings, a narrow reading of the law simply says that the HOA hold a meeting to allow the member to speak before it finds him guilty of violations. It does not have to meet the legal doctrine of due process protections of a hearing by an independent tribunal where the accused can confront the evidence and witnesses, and may bring witnesses and present his evidence. The law neither requires any adherence to minimal hearing procedures for a fair trial, such as mediation rules, or the rules as set forth in the state’s APA laws regarding hearings before administrative law judges (ALJ). The law and the CC&Rs don’t require them to! But the HOA defenders offer these covenants as just procedures.

 Second, “attorney – client” privilege or “privileged” communications is another “half-truth” misapplied by the unknowing to prevent access to legitimate corporate records, such as detailed financials; contracts, including management firm and attorney contracts; monies paid to the HOA attorney in pursuit of litigation, etc. Privilege is raised not by the attorney, or at the attorney’s insistence, but by the board.

The meaning of “privileged attorney communications” is well established legal doctrine pertaining to attorney work product – the notes, communications pertaining to strategy and tactics in regard to litigation. It is well established that attorney-client privilege does not apply to corporate records.  But the uninformed use it to refuse the homeowner’s legal request, which leaves the homeowner to indeed consider litigation to obtain what is legally valid.

And when is “pending litigation” a fact? Wouldn’t one think that it would require that the HOA was informed by a reliable person, like an attoreny, that if so-and-so doesn’t occur he will sue? Or, is it simply that the board raises this in any context where it refuses to provide the business documents by saying, “I think the homeowner is going to sue”, or “Let’s sue him”?  That is pure and simple “abuse of process.”

Why would a board refuse to proved HOA business records? Wouldn’t that be an indication that they have something to hide? Isn’t that a violation of the board’s duty to the HOA nonprofit corporation to act 1) in good faith , 2) as a prudent person would in similar circumstances (as if it had to spend its own money), and 3) for the benefit of the HOA? And not to protect their activities.

 Apparently the board is unaware, or hasn’t been properly informed by its attorney, that “A director is not acting in good faith if the director has knowledge concerning the matter in question that makes reliance [on competent legal advice] unwarranted.” Like, maybe, the allegations of a violation are false and contrived, or the “facts” are not true, or that “Mr. X is lying. (The quote is taken from an Arizona statute, but the point is that his good faith reliance cannot be claimed as a defense when the director had other knowledge.)

One would think that the HOA attorneys, especially those “illustrious” members of CAI’s College of Community Associations Lawyers, would know all this. And that these CAI lawyer – lobbyists would be at the forefront of HOA reform legislation to correct these injustices. Doesn’t CAI promote the message (see its web site) that they are “Building Better Communities” and “dedicated to fostering vibrant, competent, harmonious community associations.” Yet, they work against these simple reforms. How can CAI make such statements and not work to create a just and legitimate form of community government?

Can CC&Rs be personalized for each homeowner? YES!

An interesting case was just decided by the Mississippi appellate court that addressed personalized, individual homeowner variations to the CC&Rs. In Long Meadow HOA v. Harlandthe court upheld individualized deeds that modified the subdivision’s CC&Rs that permitted a church to be built within the HOA. Unfortunately, it’s too late for all of us currently living in an HOA regime.

Leaving aside the questions of a contract by constructive notice that permits the surrender of your rights and freedoms as bona fide, and that covenants contrary to public policy are null and void, the adhesion contact nature of the CC&Rs can be pierced. It can be modified by a true exchange, a bargaining, a give and take as is required for a valid. legally binding contract.

From the court records, the persons who owned and sold the lots in the development wrote individualized CC&Rs for each buyer, which were apparently contained or referenced in the individual deed to the property. The court record shows that the owner/declarant “included a protective covenant in the deed that specified . . . .“ The record is silent on the existence or recording of a “all for one and one for all” subdivision CC&Rs as we know exist almost everywhere. Apparently such “one for all” is not necessary.

In fact, the Harlands wrote a contingency clause in their purchase contract to protect them in the event they were not permitted to build a church, with a return of their $5,000 escrow payment. (Understand that there are 3 legal documents as part of your purchase: the purchase contract itself, the deed with its standard wording, “subject to CC&Rs,” and the CC&Rs themselves).

Problem is, the lobbyist HOA attorneys tell the developer NO, don’t do it! And the real estate department, and the realtor associations, say nothing to inform the average home buyer, the consumer public, that he can negotiate the purchase contract.

I am sure that this decision will be challenged, especially in other states. It would turn HOA-Land upside down.