Tag: contract

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.

New Arizona laws for 2011 session — thanks to the legislators

 
HOA laws for the 2011 session:
 
 The 7 new  laws, out of 22 bills introduced, affect due process protections for homeowners that levels the “litigation playing field”;   homeowner meeting rights, including the right to record board meetings, as a check on abusive boards and attorneys; new restrictions on transfer fees;  free speech rights to fly flags and political signs; and restrictions on fees for leasing signs.
 
They are:  HB 2245, HB 2609, HB 2717, SB 1148, SB 1149, SB 1326,  and SB 1540.  All homeowner friendly, and as many would say, making for a better community and a better Arizona. 
 
This Arizona session has been the largest pro-homeowner crop of HOA reforms in my 11 years of advocacy. 
 
And it also included a sharp rebuff to CAI in its desperate attempt to retain influence over HOA boards through lobbying our legislators.  HB 2441, the minority control / no court appeals  bill – failed.  Now, they alone, are setting out to put the spin on these new laws by offering seminars and classes. 
 
The public has no alternative to this pro-HOA special interrests propaganda since the news media remains firm in its policy of No Negatives About HOAs.  It would be impossible for the media to explain the new laws without reference to the abuses and lack of homeowner protections in HOA regimes.
 
Thanks to the tenacity of several outspoken Arizona advocates, the laws become effective on July 20th.

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.

HOA attorney failure to inquire into merits of a complaint — R Civ P. 11(a)

  

I’ve mentioned several times that there are many instances where the HOA attorney could easily be seen as a co-conspirator against the homeowner.  I cited civil court rule R 11(a) – found in all states – that says,

 

“that to the best of the signer‟s knowledge, information, and belief formed after reasonable inquiry [the document] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose.”

 

In other words, the filing a suit to collect attorney fees, win or lose.  Problem is that the HOA winds up paying when the homeowner does standup in court and demands evidence and facts.  But, in any case, the attorney gets the $$$.

 

While this case does not involve unsubstantiated violations by the HOA, or unreasonable interpretations of the governing documents or statutes, it well illustrates a very important defense argument.  In this Arizona case, CAI HOA attorney Maxwell contested HOA’s second position to the first mortgage lender’s lien, arguing that the statute applied  to first mortgages in time only.  Of course, there was the usual demand for attorney fees  since the HOA lost.  I guess that includes fees for the appeal, too.  

The court found as to the good faith of the filing attorney that,

 

“The good faith component of Rule 11 is not based on whether an attorney subjectively pursues claims in good faith, but instead is judged on an objective standard of what a professional, competent attorney would do in similar circumstances . . . . The trial court determined sanctions were appropriate because there was “no statutory basis or any extension of statute that would lead counsel to presume that Plaintiff had priority over a first deed of trust filed by the Bank[s].”

 

The appellate court said it quite pointedly: “As discussed above, the language in § 33-1807 is clear and unambiguous. Yet, both here and below, VJA bases its arguments on an interpretation of the statute that is contrary to its plain language.”

 

Don’t be afraid to remind your attorney about this Rule 11(a)  — they are usually hesitant to attack their fellow attorneys as they may be next so charged. 

Villa de Jardins Assn v. Flagstar Bank, CA-CV 2010-0177, (Ariz. App. Div. 2, Apr. 22, 2011).

Buyer ‘Truth in HOAs’ Disclosure Agreement

Dear Prospective Buyer,

If you are planning to buy a residential property under a private government HOA, then you must read the following disclosure and “consent to be governed” agreement.  It contains information that will affect your rights and your expectations of rights that are lost when residing in an HOA.  You will not find this information from the attorney general’s office, the real  estate department or any consumer protection agency.  Nor will you be supplied with these facts that are material to the purchase of an HOA controlled property. 

Read it carefully!  Take it to an attorney, and not the developer or real estate agent.

Show it to the developer/builder, and the HOA president.  Will he agree to signing this document?  If he doesn’t agree or wish to sign-off, these are warning signs.  Ask him to explain why not and to what doesn’t he agree to. 

Record these statements, or have a witness present.  It is for your protection, for the safekeeping of your finances and your home.

 

Yours truly,

George K. Staropoli

Click here to read the Disclosure Agreement