Tag: enforcement

Dare oppose the Will of the HOA, you will pay for it!

Local Phoenix Ch. 3, azfamily.com, (HOA forecloses on Mesa homeowner) did an excellent job in bringing out what goes on in HOA-Land where HOAs are protected by public policy.   In this incident, a homeowner builds a wall for security, as she stated, and gets fined by the HOA.  In a default judgment for an injunction, the CAI HOA attorney obtained some $16,000 in fees for less than 9 months’ work.  This incident expanded to the HOA foreclosure for nonpayment of assessments.

In the foreclosure, a simple filing asking the judge to grant the sale — unlike other disputes over nonpayment of a debt, there are no justifiable excuses not to pay HOA dues — the HOA attorneys tacked on another $12,000 in fees, for a total of some $28,000 in fees.  The HOA got a total just $3,300, of which $1,700 were for unpaid assessments.

If this was in the public arena, and a fine was permitted, there would be no attorney fees paid.  If the state foreclosed for nonpayment of taxes, the equivalent of HOA-Land assessments, there would be no attorney fees.  But, the HOA attorneys are allowed to walk away with fees far in excess of the fines and unpaid “taxes.”  I call it legalized extortion.  

The extortion consists in knowing the homeowner does not have the funds or power to oppose the HOA, and the HOA is not punished under law for any wrong doing.  So the HOA sues, knowing that it has an  80% of getting a default decision, or the homeowner pays the money demanded.   Any different from banana republic justice?    The problem becomes out of control when the homeowner falsely, but innocently, believes  the HOA can’t do anything to him. He lets it go until sued for the typical amounts as involved in this incident.

The common pro-HOA, but  misleading, argument on the acceptance to be bound to the CC&Rs has no merit.  It  ignores the questions of fraud and misrepresentation when buying an HOA controlled home.    For example, is the buyer told that the “sacred” CC&Rs at his closing can be modified without his consent, making them a meaningless piece of paper?  That this ability means that his neighbors control what he still thinks is his private property?    Is the  buyer told that his house is collateral to the HOA, and he must pay no matter, even if  the HOA fails to perform or violates the CC&Rs; or that the CC&Rs are a binding contract whether or not he has signed or read them?  And what about the agent who makes the buyer sign the purchase contract and initial all the contract pages, but requires nothing equivalent from the buyer regarding that second, briefly mentioned in passing, CC&Rs contract?   Look up the definition of fraud and misrepresentation.

In the above AZFamily.com story, when  the homeowner appealed   the attorney fees, the judge approved them writing that, “The Court notes in passing that the short answer to defendant’s objection to the amount of attorneys’ fees is that they were caused by defendant’s intransigence.”  (Minute entry of 3/5/2012, CV 20120-12322).

“Intransigence” is a loaded word!   It denotes firmness and sticking to your guns, even stubborness.  What the judge has done here is to punish the homeowner for standing up for her rights and her home against the banana republic justice illustrated above.  Dare oppose the Will of the HOA and you will pay for it!   Big time!  And he rewards the attorney, without any discussion of the role the attorney played in the delays.  What about the 3 minute entries over 2 years that basically said, “nothing is happening for the past 150 days with the suit”, about which the attorney could have prevented by seeking a decision.  But that would cut his fees, wouldn’t it?  The unreasonable prolonging of law suits violates  R11(a) of civil procedure.

Is this the public policy of the State of Arizona?   Support the HOA and its attorney against the people of Arizona who have been misled about HOA-Land?  Four bills that would have held the HOA and its board accountable under penalty, and which would have provided for “clean HOA elections,” failed to become law this past session.

Are HOAs part of this country, this community, or are they secessionist?

“While Terry believes HOAs wield far too much power, Marta Gore has a different opinion. “We all want our property values to increase. In order for them to increase, we all have to hold to a certain standard,” said Gore.”

And that requires, as history has well demonstrated, strict enforcement of the rules to coerce obedience to the objectives of the state[1], which flows not from the US Constitution, but from the HOA organic law based on The Homes Association Handbook and UCIOA[2]. Wait, wait . . . do you hear the refrains of Deutschland uber alles, the adopted hymn of HOA-Land?

HOAland, HOAland über alles,

Über alles in der Welt,

Wenn es stets zu Schutz und Trutze

Brüderlich zusammenhält.

. . . .

HOAland, HOAland über alles,

Über alles in der Welt!

HOAland, HOAland above everything,

Above everything in the world,

When, for protection and defence, it always.

takes a brotherly stand together.
. . . .

HOAland, HOAland above everything,!

Above everything in the world!
“Gore is with Texas Community Association Advocates; an organization that represents hundreds of HOAs in Texas. The McKinney resident says a few abusive HOAs give the rest of the industry a bad and undeserved reputation.”

Why are they continually opposing reforms to hold the rogue and intentionally wrongful HOAs accountable to the state, and to demand good corporate citizenship.  Are they saying that it’s not the job of our HOA, that it’s not in the CC&Rs?

 See Powerful HOAs Leave Many Texans Feeling Homeless

References

1. HOA Gestapo tactics — the slippery slope steepens

2. Legislative protection of HOAs: replacing US organic law with HOA organic law

Findings of the 2011 Colorado HOA problem report

The findings of the Colorado HOA problem identification report are as follows, and substantiate the fact that HOA democratic governance is sorely lacking:

 

What we discovered was that the complaints we received primarily involved the board of director’s failure to follow corporate governance rules and procedures of the HOA; the transparency of the board of directors, particularly as it related to the finances of the HOA; and harassment and bullying of homeowners by the board of directors and management company by arbitrary fining, preclusion from providing input into the associations’ affairs, and verbal harassment. These complaint types were much more serious than the aforementioned three P’s because they substantially interfered with a homeowner’s ability to enjoy his property and to have avenues of democratic participation in the HOA to remedy their issues.

An additional and perhaps one of the more troubling complaint types the Office heard was that the HOA board or manager was harassing, discriminating or retaliating against homeowners. Many homeowners felt that their boards had singled them out and were arbitrarily fining them for violations, when they were not in violation; engaging in selective enforcement of covenants; and precluding them from participating in meetings. . . . A frequent complaint heard was that older board members were discriminating against younger homeowners or where older homeowners felt they were discriminated against by younger board members.

 Another troubling subset of complaints involved diversion, fraud, and theft. . . .  The most frequent complaint types filed against managers mirrored those pertaining to HOAs, including access to records, transparency and communications, not communicating with homeowners, harassment and selective enforcement of covenants

 

And the report makes the following, not unexpected, observation, which can apply to all HOA legislation in all states (emphasis added).

 

The drafters of SB-100 and SB-89 obviously understood the need for statutory protections to homeowners, but the issue homeowners are having is not that the law does not address their specific issues, rather the law does not provide a realistic or economic means to seek redress.

 

 The lack of such realistic means for redress can be found in the public policy of each state to support and protect the HOA even against unjust and unconstitutional denials of homeowner rights and freedoms.  One very effective and proven means is to provide for effective penalties against HOA violations of the laws and governing documents in the name of the people.  That means sufficient fines and even misdemeanor charges as warranted, especially when considering such penalties are imposed for wrongdoing by a government official or agency.

 References

1.       Colorado report on HOA problems needs to be corrected.

2.       “Hannaman Report”, (Similar report in NJ, 2002).

3.       The StarManPub  videos on the Florida House HOA hearings (2008).

 

Colorado report on HOA problems needs to be corrected

The Colorado real estate department issued its first report on the state of HOAs and condos for 2011, raising some questions of integrity. A total of all the complaints in the chart shows 893 complaints, or almost twice as many as proclaimed. In fact, totaling the listed percentages show almost a doubling to 194.2%. See the chart link below, where “adj pct” is the “normalized” percentages.

The normalized analysis shows that all the complaint types that can safely be attributed to governance issues, the top 16 in the table, make up 84.3% of all complaints. And, those 4 explicitly stated management complaint,  amount to 31.1% of all complaints.

If those in power refuse to face the reality before them, then they live in a delusional world where effective reforms can never occur. And where there are unjust laws, then the government is seen as illegitimate and not representative of the people who are the State of Colorado.

See Colorado report

Why did the judge allow seizure of HOA member’s home for rent payments?

In continuing my mission as a homeowner rights advocate and activist, rather than taking the politically correct stance of “one of the boys”  and we are all in this together kumbaya, allow me to dig a little deeper into the Florida HOA takeover of a homeowner’ home.  (See Behold the power of the HOA over your private property).

My thanks to Florida attorney Jean Winters’ who directs her blog readers’ to the Florida law in question, FS 720.3085.  Another statute that reflects a pro-HOA public policy.  (Does F.S. 720.3085 allow an HOA to take possession of a homeowner’s home and bar her from her own property? )   

Winters’ rightfully questions the judge’s order to grant HOA possession of the member’s  property, which was most likely sought by the HOA in its “prayer for relief” section of  its complaint.  It is important to understand the driving force behind many HOA actions.  Solomon, another Florida attorney, commented on this incident (quoted in Behold the Power above),

“Judges rely on what rights attorneys tell them their clients are afforded under the law,” Solomon said. “If there’s no attorney on the other side to argue that it’s wrong, the judge most often takes the word of the attorney and grants the motion. Plus, these judges hearing these cases usually are not experts in real estate law.” [Nor HOA law].

Winters’ asks,

What statute or provision in the Declaration of Covenants permits an HOA in this situation to rent or act as the owner without title to the property? What gives the HOA the right to threaten the lawful owner (and her attorney) with trespass and to bar her from access to her own property without a foreclosure proceeding?

First, subsection FS 720.3085(8)(a)(1), dealing only with the right to collect rent payments, requires a notice be sent, which was not done.  Furthermore, (8)(d) allows for eviction of the tenant only if payments are not made, but explicitly denies bona fide landlord rights to the HOA.  And, if this is not satisfactory to the HOA, it can have a court appoint a Receiver to collect rents – period. 

What we have here is the disgraceful state’s interference with a contractual obligation between landlord (member) and tenant granting the third party HOA preemptive rights to collect monies under the contract.  This interference cannot be justified as a bona fide government interest as it protects one party over the individual. In fact, subsection (8)(a)(1) grants powers to the HOA to collect rents for any debt owed the HOA, and that means fines, attorney fees, interest, etc., ”If the parcel is occupied by a tenant and the parcel owner is delinquent in paying any monetary obligation due to the association . . . .” 

Please understand the special privileges granted to the HOA. For example, under a mechanic’s lien judgment, the worker cannot have rent payments be delivered to him personally.  And he would first have to get a court order.  Even under garnishments a court order must first be obtained.  But no, the HOA has the power to act on its own.   Again we have another example of pro-HOA public policy favoring special rights and privileges for HOAs only, and not any other business or creditor/debtor relationships. 

I’ve written about the culture and climate that is an open invitation for intentional wrong-doing by HOAs, presumably with the approval of their attorneys. With this pro-HOA public policy, “HOAs have no restraint on running amuck, and on intentionally running amuck.”