Tag: due process

advocate’s 10-point statement to NC HOA committee

NC activist Ms. Jane Jordan plans to deliver her statement to the NC House Select HOA Committee in person.

 “THESE ARE ‘OUR’ homes and not the board member’s homes. THESE are OUR monies in HOA dues and not the board’s monies. . . . There are NO EXCUSES for some of the problems that have literally traumatized our lives to a lesser quality.

Here are the areas of Ms. Jane Brawley Jordan’s 10 point program:

Disclosure

Education of board members

Audits mandated yearly

Enforcement agency

Equal representation if a lawsuit is taken on

ANTI-SLAPP legislation

A property manager’s licensing law

Oversight for fair voting procedures

No abuse by association attorneys

A support group

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SPEECH TO THE HOUSE OF REPRESENTATIVES

 HOUSE SELECT COMMITTEE ON HOMEOWNER’S ASSOCIATIONS

 JANUARY 23, 2012

 1) THANK YOU – Thank you Co Chairs Justice and Jordan, House Representatives Burr, Hastings, Howard, McCormick, Moore, Spear, Weiss, Wilkins, Mr. Stiles and Ms. McGinnis and Mr. Attifal (sp). for allowing us as concerned homeowners to speak today. I have listened in intently to the previous meetings you held on November 16, 2011 and December 5, 2011 and was most impressed with the comments made and discussions of possible solutions. THANK YOU.

 2) INTRODUCTION

 I am Jane Brawley Jordan who lives in Charlotte, North Carolina and am a part of a homeowner’s association. I have lived in North Carolina all of my life and was born in Statesville, North Carolina and then lived in Mooresville, North Carolina until I attended college in both South Carolina, Erskine College and then graduated after transfer from UNC-Chapel Hill with a Bachelor of Arts in Education. I have resided in Charlotte, North Carolina since 1973 and have serve d in several capacities civically serving on two homeowner association boards. The first one a pleasant experience and the second board being a nightmare. This has affected the quality of my life in a most horrible way. This is the reason I am here today.

 3) ATTITUDE

 Our homes are our havens. Where we find rest, peace and social climate that is conducive to a good life. The first thing I would like to address is the attitude of the hearts and minds of only some elected board members who serve their community. Not all homeowner association boards are bad. There are some very good ones who care and show genuine concern for ALL members of the association equally. However, it is the wrongful attitudes that seek to abuse power in the huge problems among not just a few, but now citing many across our state and the already cited problems in your summary after the 2010 public hearings that pose grave concerns about all of us as present and future homeowners. Therefore the need for tangible solutions. The attitude of the heart is to SERVE . A servant’s heart. THESES ARE “OUR” homes and not the board member’s homes. THESE are OUR monies in HOA dues and not the board’s monies. Board members are entrusted to use our monies held in trust to provide upkeep of our properties and show accountability of our finances. It does not matter if they are not paid to do this work serving on a non profit. There are NO EXCUSES for some of the problems that have literally traumatized our lives to a lesser quality. Somehow the cart has been put before the horse. WE AS HOMEOWNERS FOOT ALL THE BILLS. The proper respect must be shown if HOAs are continued to exist at all.

 Therefore, I present my own ten point plan that will help to solve the problems we now face.

 1) Disclosure – of all Covenants and Restrictions and the By Laws to any potential buyer BEFORE the closing date of any purchased property. This has already been affected. GOOD JOB.

 2) Education of board members who report in to an oversight agency with area examiners for each general municipality. If the board members do not study the Chapter 47 laws and pass a test they do not get to serve on the board.

 3) Audits mandated yearly ( as is written into my HOA By Laws and I believe most of them. If a board does not comply, they are FINED by the oversight committee elected hopefully within the North Carolina Real Estate Commission. Such funds for fines being half to go to the NCREC or oversight committee and the other half to the cash reserves for the community. These audits are to be done on time and not delayed.

 4) Enforcement agency to warn, fine or remove board members who do not follow the Chapter 47 laws and their respective By Laws, using “reason” and to follow their own rules with submitted proof of these indiscretions by any homeowner . The using “reason” is where most of us are finding huge problems and where the abuse occurs. If a board does not hold the legally noticed Chapter 47 NOTICE for a board meeting with any homeowner noting any violation or concern by the board, the board is to be held accountable. That they cannot then jump to suing or fining a homeowner.

 5) Equal representation if a lawsuit is taken on as we as homeowners pay into the monthly insurance premiums and yet only the board members who are also equal homeowners get free representation. This is a conflict of interest if we are paying for the other side’s defense. We as the homeowners have to pay out of pocket but we also pay for the premiums to fund the insurance attorney for the board members. THIS IS NOT RIGHT.

 6) ANTI-SLAPP legislation that 23 other states have, …(which may be exclusive of just the HOA problems and for other problems also) .THAT “IF” the By Laws are not followed with proof, if there is no dispute resolution process that has taken place, that no retaliatory lawsuit can be filed by the board member responsible. SOMETIMES retaliatory lawsuits are taken on for a homeowner who owes NO HOA dues and even OWNS their home free and clear or not, is attacked in lawsuits only for a homeowner complaining that the board minutes are not made available, the walk through reports for violations are not made available, the audits are not made available, and the financials are not made readily available and therefore such complaints are filed with the NCREC if the property manager has a licensed realtor in the business or the Better Business Bureau then the homeowner should NOT BE SUED.

 7) A property manager’s licensing law to mandate that ALL property managers be trained, educated and licensed as to the Chapter 47 laws and that they be held accountable in order to keep their license with a process included for complaints by any submitting homeowner.

 8) Oversight for fair voting procedures with NO proxies for important agenda that needs to be discussed at the community meetings involving large amounts of money. A candidate from the board of elections could be chosen to do this as their job.

 

9) No abuse by association attorneys – Limits on what association attorneys can do as far as upping fees for foreclosure after the homeowner has agreed to pay and does so in time according to their submitted finances to show the board and the association attorney what they can pay and when.

 10) A support group to help any homeowner who does not know what to do to be able to go to for this kind of education and support with a website link for training and who to contact.

 

THANK YOU FOR YOUR WONDERFUL SUPPORT IN SEEING THESE THINGS ACCOMPLISHED so that the quality of our lives are enhanced in the state of North Carolina. That we as North Carolina can be a leader in this area and model for the rest of the nation. That people will WANT to live in North Carolina and bring their businesses here due to the timely caring responses from those elected to serve over our homeowners association. That we can be proud of our actions starting today to make for these law changes to protest us all. That some day someone will be walking down the street and be able to say,

 “I am where I am today with a quality life and still have my home due to the wonderful representatives and the caring citizens of North Carolina. “

Thank you,

Jane Jordan

HOAs today do not exist for the benefit of Homeowners

The following are  excerpts taken from the statement by  Jim Lane, Founder, NC HOA Laws Coalition, to the NC Select HOA Committee Hearing on Jan. 23, 2012.

We all look forward to our collective and joint efforts “to see the world anew” and to eliminate the Harm being done by HOAs to Homeowners, everywhere, not just in NC. . . . HOAs today do not exist for the benefit of Homeowners … which is VERY CLEAR to everyone who lives in an HOA Community.

It is the CCRs and Bylaws and the Mini-Government / Dictatorship created by our HOA “Laws” (as written by and for the direct benefit of HOA Attorneys, Developers and Property Managers) that is the ROOT CAUSE.

We are asking for a HOMEOWNER TASK FORCE be appointed by the Legislature to COMPLETELY INVESTIGATE and to COMPLETELY revamp ALL of the Laws …

Read the complete statement at  Lane.

Statement to NC Select HOA Committee

January 17, 2012

Mr. Ed Stiles
Committee Assistant
NC House Select Committee on HOAs
 
email statement

Statement to the NC House Select Committee on HOAs

January 23, 2012 Meeting

Dear Committee Members,

I am submitting this email statement for inclusion into the record for the January 23, 2012 hearing on homeowners associations. I am a nationally recognized homeowner rights advocate who believes in “supporting principles of democratic government.”

Over my 13 years of involvement in HOA reform legislation across this country, I have witnessed a slow, but steady, change in the perception of homeowner associations from “the next best thing to Mom’s apple pie” to the realization of that there are “worts” all over the HOA legal concept and statutes. The reason for this has been the extensive use of the internet by advocates, and the inability of the pro-HOA forces and national lobbyists in every state to stifle their voices. For over 48 years, since the introduction of the “HOA “bible”, the Homes Association Handbook, these forces held sway and shaped the attitudes of the public, the media, the policy makers, and state legislators. They exclaimed the virtues and benefits of the HOA scheme, and hid the worts, the serious defects, among the most egregious being the denial that HOAs are authoritarian, private, de facto governments that function as independent principalities. As such, HOAs are illegitimate local governments.

I am not rejecting the freedom of choice, if indeed that is a fact, in selecting the perceived benefits of a planned community by buyers, but the mass merchandising of these HOAs under highly questionable sales and advertising methods – misrepresentation, fraud, half-truths, false truths. As an example, no state has adopted anything close to the “Truth in HOAs Disclosure Agreement” that serves as a notice and warning of what HOA life is really about. (See, Appendix A, Model Consent to be Governed Disclosure Bill). I am not objecting to that real estate “package” of benefits, but to the form and nature of the governing body of the subdivision, commonly known as the Homeowners Association, and the adhesive CC&Rs “contract” that denies constitutional protections of due process and the equal application of the law.

HOAs are unaccountable to the state government. The statutes are unconstitutional special laws for special organizations, that reject contract law and constitutional law for the common law of equitable servitudes. As long-time advocate Evan McKenzie wrote in Privatopia (1994),

In a variety of ways, these private governments are illiberal and undemocratic. Most significantly boards of directors operate outside constitutional restrictions because the law views them as business entities rather than governments. . . . [They] are inconsistent not only with political theories of legitimacy but with the normal process by which governments are created. . . . Thus these ‘private governments’ may violate the equal protection clause of the Fourteenth Amendment. (Chapter 6).

There is no justification for the non-application of the laws of the land, and the denial of fundamental rights, freedoms, privileges and immunities for homeowners with such weak arguments as: “better landscapes make better communities,” or the shifting of residential development costs from the local municipality to the homeowners, or “they agreed to be bound.” The last of which is a mockery of justice and our system of government as it allows the waiver and surrender of rights and freedoms by the mere posting of a Declaration of CC&RS to the county clerk, sight unseen by those who will be bound by the CC&Rs, by a profit seeking developer adhesion contract.

This Committee has the opportunity to begin to set things right, to restore this country to “one nation, under God, indivisible, with liberty and justice for all,” and to remove this second form of local government that has seceded from and rejects the Constitution. The Committee will hear from HOA supporters and from self-interest groups who should, by this time, understand that they, too, are rejecting the Constitution and the principles of democratic government. And more importantly, it will hear “petitions for redress” from homeowners. Do not fail the citizens of North Carolina. Do not cause them to have to say, “Our repeated petitions have been answered only by repeated injury.”

I ask that the Committee to do justice by paying heed to those petitions by homeowners and taking on the long overdue HOA reforms being asked.

My HOA profile, Appendix B, is provided for your convenience.

Respectfully submitted,

George K. Staropoli
President
 

Mr. President: require all HOAs to be subject to the Constitution

By virtue of an unconscionable adhesion private contract favoring the subdivision developer and HOA board of directors, homeowners associations are allowed to deny constitutional protections and the application of the laws of the land. Over 20% of Americans, who are homeowners living in these private governments, live at the “suffrage of the board,” with state laws that do not punish board violations of the laws or of the governing HOA documents.

The alleged “consent to agree” fails all contract law requirements, and does not pass judicial scrutiny for such a waiver or surrender of one’s freedoms, liberties, immunities and privileges as a citizen of his state or as an American citizen. The selling process is ripe with misrepresentation, half-truths, and unspoken material facts about life in an HOA. There are no fair election laws or due process procedures for a fair and just hearing as are provided by public protections.

Foreclosure rights are granted to HOAs as an intimidation and punishment vehicle, and are not found anywhere else where corporations  do not advance hard cash as do banks or mortgage companies.  The HOA does not advance hard cash! A homeowner can lose all his equity for a debt less than 10% of the value of his equity. The foreclosure process is discriminatory against those who have high equity — those who have paid their mortgages and HOA dues for a very long time. It is only from these good people that the HOA can expect to obtain any payment of its debt, provided there is sufficient equity to make a payoff.

Are we united or are there two forms of political government within this great country?  If America is to remain a united people, it is time that the US prohibits the writing of private contracts, Declarations of CC&Rs, subject to common law servitudes in order to subvert the application of the US Constitution.  It is time that these private local governments be made subject to the US Constitution and stop being treated as independent principalities.

“and justice for all” not available by HOA due process clause

The Dec. 1, 2011 Condo Issues.com blog by Tyler Berding has, as it title, the long hoped for condition sought by homeowners: “And Justice for All.”  Except the author, Steve Weil, fails to make the case that such is the condition in HOAs with their disgraceful, commonly found  due process clause: “after notice and an opportunity to be heard.” Period. Citing almost identical California law only supports the legislature’s pro-HOA authoritarian regime and its denial of fundamental protections of individual rights and liberties. Apparently he never saw the 1979 Al Pacino movie by the same title.

Weil goes on to make his “expert” legal view by citing the Aliusi v Fort Washington Golf Club case, which is not a private government HOA dispute. He speaks of 1) revealing the name of the accuser, 2) the submission of evidence, and 3) makes a good point on the details required by a proper notice, or “indictment,” of wrong-doing. He buries the principles of “and justice for all” in his discussion of issues 1 and 2 above, but, reading between the lines, agrees with the right to confront witnesses and to see and challenge the evidence. Weil concludes with, “the reason for “due process” is to give one who is the target of a hearing a fair chance to defend him/herself.”

However, he makes the pro-HOA assumption, an ipse dixit, that the board, the “jury”, is indeed interested in justice, for if it truly were, it would establish an independent tribunal for hearings. “Giving the owner this opportunity helps reveal the real and relevant facts and thus also aids the board’s decision-making process.”

Finally, the author well understands the moral and ethical aspect of legitimate government and laws. He ends with the need for homeowner acceptance of HOA justice with, “an owner who feels they were given a “fair shake” is much more likely to agree with the board’s disciplinary decision and comply with the governing documents.” It is a long established doctrine, going back to the Greek philosophers, that the legitimacy of government depends on fair and just laws, and the fair and just enforcement of these laws. It is well established that HOA private governments are unjust and authoritarian in structure with a façade of democracy — just because a member can vote does not make an entity a democracy.

There are no due process protections for homeowners in HOAs that would pass judicial scrutiny. Arguments that buyers agreed to be bound to the CC&Rs and bylaws is a mockery of the facts, as the selling process is ripe with misrepresentation — false statements, half-truths, and “no negatives.” See Truth in HOAs disclosure poll — please vote your conscience.