Tag: enforcement

HOA Common Sense, No. 7: boards can do no wrong

HOA Boards can do no wrong, No. 7

In shocking contrast to our common sense and all that has been said about the need to protect the people from government, state legislators see no need for effective and meaningful enforcement that average people are transformed into angels when they become board members.  James Madison must be in a rage, wherever he may be, at this slap at his advice that, “If men were angels there would be no need for government.”

State legislators have said that the complaining HOA member signed a contract and is now trying to get out of it because he now thinks it’s a bad contract, and that he will not support any such legislation. Furthermore, anyone who didn’t read the contract or get a lawyer is not too smart and that he, the legislator, would have never done that.  What do you think of that attitude in light of the above papers 3 – 6?  And don’t forget that you are being held to have agreed to be treated in such a demeaning way by your elected officials.

Where are the fair and just laws argued for in paper No. 4?  They are not there!  Instead, we have special laws for special entities, the HOA, without a necessary and compelling government interest to deprive citizens of the rights and freedoms.[i]  What a travesty of our American way of life! 

You may ask, What for?  The answer is obvious: for the survival and acceptance of a defective legal scheme that seeks to impose authoritarian governments on unsuspecting people. If boards and offers are to be held accountable, who would volunteer?  Well, why not pay them a salary so accountability can be demanded?  WHAT!!!  If they are going to be held be paid and held accountable, then members have a right to demand qualified board members and not any ole body who would like to be on the board.

Wait!  Wait! I can see readers recoiling in horror.  The horror . . . the horror . . . (from the movie Apocalypse Now!).  Consequently we are told that we must accept the lunacy that all volunteers can do no wrong and if they do, well, that’s your fault for electing them!  And let’s not forget that the board has hired hands to protect them – the attorney and manager.  At your expense.  The homeowners pay for the board’s wrongful acts.  

So, why aren’t the members more involved in watching over the acts of the board?  Well, maybe it would help if the laws backed the members up with effective and practical means to enforce HOA wrongful acts; otherwise it’s just an exercise in futility.  The game is rigged in favor of these independent principalities!

But those living in HOAs must share the blame for this state of affairs. They have repeatedly failed to unite in an organized common cause to produce intelligent legislation that addresses these fundamental HOA defects.[ii]  CAI in Arizona made that clear when it told the legislature that only the stakeholders produce meaningful bills; the homeowners just raise a multitude of personal issue bills.[iii]

And so, in all practicality considering this state of affairs, the board can do no wrong.  Get used to it!

“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.” (Alexander Hamilton, Federalist #15)

Obstacles to effective HOA reform legislation

Jim Lane, a NC HOA reform activist and website owner of Alliance of Homeowners Associations and Owners, asked the following HOA reform questions on the LinkedIn HOA group:

What are the three biggest “issues” (be specific)? What is standing in the way of resolving them? What should Owners be doing? How?

A good understanding of the issues surrounding HOA reform legislation requires expanded answers to these questions.  There are too many dogmatic mantras being espoused that are not supported by any convincing evidence, like “move out, “no contract interference,” “you agreed to be bound,” etc.  I can only provide an outline of my answers to these questions.  A deeper understanding can come from a study and analysis of my Commentaries over the years since 2004. (A keyword search is available).

First question: Essentially, I have identified 5 fundamental areas that require substantive reform legislation; legislation, if enacted would produce a trickle-down effect on many of the more serious issues confronting homeowner rights, freedoms, privileges and immunities allegedly waived or surrendered by homeowners.

They are:

  1. HOA foreclosure (cruel and unusual punishment; suspect category)
  2. Lack of due process protections (eliminate HOA banana republic justice)
  3. No clean elections laws for HOAs (eliminate HOA banana republic elections)
  4. No penalties against HOA board violations (equal application of the laws; detriment serving as a check and balance on HOA board violations)
  5. Wrongful application of a valid consent to agree (misapplication of the domination of servitudes law over constitutional and contract laws to make the HOA legal scheme work)

A failure to attain these broad, fundamental reforms will leave homeowner advocates at the continued mercy and whims of their legislatures, who are all pro-HOA.

Second question:  The answer to this question will disturb many, many homeowners and HOA reform advocates.  First, the 40 year-old national lobbying organization, Community Associations Institute (CAI) has dominated state legislatures. CAI has advocated its personal agenda under the guise of making for a better America, and a fear mongering not to support reform advocates who will kill your HOA and cause a loss in your property values.[1]  And then there was the inappropriate mass merchandising of the defective HOA concept to generate profits for the HOA promoters.

Second, like the German people who allowed the Nazi party to gain control over the most cultural and scientific country at that time,[2] homeowners jumped at the carrots being offered by the mass merchandisers and ignored the stick of a decline in democratic institutions and constitutional protections.  Many believed that they were good people supporting what was good for the community and the state, just like the German people eagerly believed.

The denial of the reality of the HOA legal scheme is a common behavior when a person’s self- image is being destroyed or radically altered.  When one’s self-image serves as the basis of how that person sees himself to be, many owners accepting the reality of the HOA concept would be destroyed. Their reactions would be an outright denial to the point of irrationality.  To say that their cherished HOA is a wrongful legal concept that is not for the betterment of society is too say that they are wrongful people not working for the betterment of society.  And they will not accept that. They will not accept the fact that they, like the emperor in The Emperor’s New Clothes,[3] were conned so they will continue to ignore reality and live in denial.

We see this reaction when pro-HOA supporters are pushed to defend their positions and they cannot, so they react with, essentially, an I don’t care attitude.

Third and Fourth questions:  The homeowners must, themselves, face this reality and become enlightened.  They must unite and stop the continued influence of CAI on their legislature.[4]  The homeowners must become proactive to enlighten and change public opinion that HOAs are not the next best thing to Mom’s apple pie.

 

References

 

[1] There are existing laws in every state that would enable HOA to maintain their unique relevance to the subdivision in terms of private rules and amenities, etc., but would return HOA to our American system of government.  However, that would mean CAI would lose much of its dominance and influence over HOAs. See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.

[3] The Emperor’s New Clothes, Mindfully.org (http://www.mindfully.org/Reform/Emperors-New-Clothes.htm), June 7, 2012.

HOA Justice and Reconciliation Commissions

The overall mission of the HOA Enlightenment Movement is simply to get the word out about the reality of living in an HOA.[i]  The continuing wounds inflicted on homeowners must be accounted for. Wounds that have been inflicted by rogue[ii] HOA boards supported by the indifference or pro-HOA bias of state legislators, by the “not my problem” attitude of the “good” HOAs who stand by and allow evil in their industry, and by the failure of the national educational trade group, CAI,  to help clean up the industry.

In the interest of justice and reconciliation, a vehicle such as a Truth and Reconciliation Commission[iii] is needed to heal the wounds so our communities and society can return to the principles and basic values of America. A simple “let’s start over again” or “let us be friends” kumbaya approach will not work, nor will the continued failure to hold the offenders accountable for their actions.  Homeowners have suffered financially, legally and emotionally, and closure and justice is warranted. 

The Commission would grant amnesty to offenders and violators of the governing documents and laws who caused such harms, if the offenders could show that they were acting under orders.  As occurred in the 2008 Florida HOA hearings held by Julio Robaina,[iv] the homeowner witnesses’ would confront the offenders.  The offenders would include directors, officers, managers, and HOA attorneys. 

This type of commission with powers to file suit against offenders, who cannot show that they were just following orders, can only be established through state legislation. Advocates can enlighten the media, the state legislators, homeowners, and the public in general to demand the rapid creation of such committees within their respective states.

  

References

[i] By “HOA” I am referring to that category of subdivision with a purpose to create an “an adult community” (retirement) or a resort community where owners happen to live similarly to a vacation home resort. I am speaking of those subdivisions that would be classified as a home with some or no amenities, or not even any common properties. In the former instance rules are expected and in the latter the rules are intrusive.

[ii] By “rogue” I mean those boards that have been repeatedly and intentionally grossly negligent of or have ignored their duties and obligations under state laws and the governing documents.  They do so with the knowledge that there are no meaningful penalties for such egregious conduct.

[iii]  The HOA version of this commission is based on the “Welcome to the official Truth and Reconciliation Commission Website,” http://www.justice.gov.za/trc/, August 21, 2013.

The HOA climate is based on fears and distrust giving rise to strict enforcement as necessary for compliance

 

In the real world of HOA governments, the climate of the community is based on a fear and a distrust of one’s neighbors. This fundamental basis for HOAs is supported by the following commonly expressed objectives of HOAs. We’ve been told, as well as having been set down in the declaration, that the purpose of the HOA is 1) to maintain property values first and foremost, which requires the enforcement of the governing documents, and 2) to provide for the general welfare of the members in terms of rules and regulations for an orderly community.   It implies that the survival of the HOA depends on an authoritarian government to coerce compliance with the objectives of the HOA state.

The climate of the HOA is formed by the attitudes, beliefs and values of its members who distrust their neighbors because their neighbors will,

1.      paint their house pink, or polka-dotted,

2.      repair and maintain their vehicles on their front lawns in front of their $200,000 homes,

3.      not properly maintain their homes and lots as determined by the HOA,

4.      refuse to obey the rules and regulations, which requires the application of penalties, as severe as may be required, to obtain compliance with the rules and regulation, and

5.      refuse to make timely payments of their assessments, for which there are no justifiable exceptions or excuses.

 

What is noticeably absent from the purposes of the HOA government are any references to the establishment of healthy, desirable, and vibrant communities based on the US Constitution with its protection of individual liberties.  Also noticeably absent from the above are any statements to the effect that HOA members are not protected by the application of the 14th Amendment, as they would be protected if the HOA were a public entity.  However, statements to the contrary have been made giving the appearance and illusion that the HOA provides the same democratic protections as found in the public domain, simply because members can vote for the board of directors.  This is decidedly false!

 Considering the above, the climate of the HOA is one of hostility, distrust, coercion to comply, and the fear of a decline in property values that necessitates an undemocratic, authoritarian government for its survival.   But, it doesn’t have to be this way.  The subdivision real estate package can exist without the HOA form of governance that is based on the distrust of its members.  But, the HOA cannot exist without the covenants running with the land as found in the declarations of covenants, conditions, and restrictions.

See also, Proposed HOA Study Committee issues of substance, and A further explanation of HOA Organizational Development

Proposed HOA Study Committee issues of substance

The following topics have been proposed as issues of substance for the National HOA Member Citizens League Study Committees,

    1. Have homeowners given their consent to agree to the governing documents and to the waiver or surrender of their rights and freedoms as citizens?
    2. Are fair elections procedures needed to protect the democratic right to vote for HOA directors and/or officers?
    3. Are HOA members being denied due process protections as are provided public government?
    4. Is the right for HOAs to foreclose on homeowners an effective and legitimate method to collect assessment debts?
    5. Are HOAs being given special consideration by state legislatures by not subjecting the boards of directors to punishments and monetary penalties for violations of state laws and the governing documents?
    6. Are HOAs state actors?
    7. Are HOAs de facto but unrecognized political governments?
    8. Should HOAs be made subject to municipality statutes rather than corporation statutes?
    9. Should directors be required to take courses in government and nonprofit management?
    10. Should HOA managers and management companies be licensed and subject to random audits?

For more information on the HOA Organizational Development fresh approach to HOA reforms, and the National HOA Member Citizens League pro-con study committees, see HOA Organizational Development.

See also, HOA Organizational Development – a fresh approach to the ills of HOAs 

A further explanation of HOA Organizational Development