Tag: fair elections

subtle HOA restrictions on fair elections

In Arizona I discovered a large, active-adult HOA that I first thought was quite liberal and emancipated but in reality turned out to be just a benevolent dictatorship. That’s about as good as it can get! Basically, a benevolent dictatorship gives the appearance of serving the members’ best interests by playing on their wishes, desires and, most of all, fears. But the essential structure of the governing documents and state laws create and support a legal dictatorship. Harsh actions and statements are avoided.

As an example, in regard to fair elections, I came across its application for board membership that outlines the duties, responsibilities and attitudes of directors. In short, the BOD through an election committee controls candidate campaigning and what the candidate may or may not say. In the public domain this would be considered outrageous and undemocratic.

Here are a few conditions:

The Campaign and Election Policies have been carefully developed to provide a fair and clean process for candidates and all members. It is expected that candidates . . . will act with the utmost integrity and respect toward all candidates. It is also expected everyone will focus on issues and refrain from negative criticism of any other candidate or group. [This is political correctness and an unconstitutional restraint on political free speech.]

IN THE SPIRIT OF FAIRNESS: [Say what?]

 ALLOWED [my emphasis]

  • Submitting to and awaiting approval by the Election Team before distributing campaign flyers. . . Unapproved campaign flyers will be confiscated and destroyed by the Election Team. [It’s an unconstitutional restraint on political free speech].
  • Placing approved campaign flyers ONLY on designated tables next to the election poster boards in approved locations
  • Attending any . . . community group gatherings . . during the group’s informal assembly time only. [Should be a decision by the groups chair or president].
  • Distribution of personal correspondence through the US Postal Service at candidate’s own cost is allowed after approval by the Election Team. [It’s an unconstitutional restraint on political free speech].

NOT ALLOWED  [All would not pass public fair elections procedures].

  • Using email listings, electronic or websites [of any HOA organization] Addressing a formal . . . Community Group; Participating in formal Q&A sessions and programs other than those sponsored by the Election Team.
  • Using Association facilities for campaign events for individual candidates.
  • Using advertising of any type (other than approved campaign flyer and/or approved personal correspondence).
  • Distributing campaign flyers in common areas except as noted.

There are several court cases upholding HOA political free speech. See Protecting HOA political free speech on matters of general community interest (2000 -2010); Court Decisions May Make it Harder for Condominium Associations to Restrict Free Speech Rights of Owners (2012).

HOA-Land Nation “Did you know?” Part 2

HOA-Land Nation “Did you know?”

Release No. 2 —  July 4, 2019

As an HOA member, did you know that:

 ·         Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties or punishments for violations of state laws or the governing documents?  Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.

 ·         The much touted HOAs are democratic because members can vote is utterly without merit?  Fair elections protections, as compared with those in the public arena, do not exist under a corporation law.  Members do not have equal access to HOA newsletters, website, member lists, and use of common amenity meetings rooms, among other denials.  

 ·         To bring about equal protection of your rights, the HOA attorney sides with the BOD, his client and not you, the membership.  And as a CAI member, lobbies the legislature to maintain conditions as they are – authoritarian HOA government.

 ·         You still retain your rights, privileges and immunities as a citizen but are denied these rights under the private HOA legal scheme, functioning outside constitutional protections.

 Discover the truth about HOAs!  The truth shall set you free!  Read The HOA-Land Nation Within America exposé on sale at Amazon.com. 


CA SB323 a model on fair elections for all states

California’s SB 323 seeks to introduce fair elections procedures for HOAs, addressing one of my 6 substantive defects in the HOA legal scheme.[i]  Deborah Goonan’s excellent discussion of this bill[ii] brought to my attention a second defect in the HOA legal scheme, the lack of enforcement of the law[iii].

The bill modifies California’s Civil Code, Section 5145(a), inter alia, mandating a court to void any election found to violate the law. The court no longer has discretion, as many have been found to favor the HOA over the member, and insures that justice be served. “A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association.”

Section (b) is modified to read, “A member who prevails in a civil action to enforce the member’s rights . . . the court may impose a civil penalty of up to five hundred dollars ($500) for each violation.”

In all fairness, the bill requires the violation to be intentional and material to the outcome to avoid frivolous suits.  With CAI “experts” in HOA law involved in many of these cases, it’s hard to view the violation as accidental.  There is an instance in Arizona at this time where this bill is sorely needed.[iv]

Without fair elections, all this pro-HOA clamor by CAI and other staunch HOA backers that HOAs are the epitome of democracy where members can vote, and should get elected and involved in the affairs of their HOA becomes meaningless tripe!

California’s SB 323 must be made law not only in California, but in all the states as well!

References

[i] See HOA Common Sense: rejecting private government, Democratic elections, No. 5.

[ii] See “California HOA elections bill update (March 2019)”, Independent American Communities.

[iii] Supra, n. i, HOA Boards can do no wrong, No. 7.

[iv] For example, see “Non-conforming HOA voting procedure”,  HOA Constitutional Government.

California’s SB 323 seeks to introduce fair elections procedures for HOAs, addressing one of my 6 substantive defects in the HOA legal scheme.[i]  Deborah Goonan’s excellent discussion of this bill[ii] brought to my attention a second defect in the HOA legal scheme, the lack of enforcement of the law[iii].

The bill modifies California’s Civil Code, Section 5145(a), inter alia, mandating a court to void any election found to violate the law. The court no longer has discretion, as many have been found to favor the HOA over the member, and insures that justice be served. “A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association.”

Section (b) is modified to read, “A member who prevails in a civil action to enforce the member’s rights . . . the court may impose a civil penalty of up to five hundred dollars ($500) for each violation.”

In all fairness, the bill requires the violation to be intentional and material to the outcome to avoid frivolous suits.  With CAI “experts” in HOA law involved in many of these cases, it’s hard to view the violation as accidental.  There is an instance in Arizona at this time where this bill is sorely needed.[iv]

Without fair elections, all this pro-HOA clamor by CAI and other staunch HOA backers that HOAs are the epitome of democracy where members can vote, and should get elected and involved in the affairs of their HOA becomes meaningless tripe!

California’s SB 323 must be made law not only in California, but in all the states as well!

References

[i] See HOA Common Sense: rejecting private government, Democratic elections, No. 5.

[ii] See “California HOA elections bill update (March 2019)”, Independent American Communities.

[iii] Supra, n. i, HOA Boards can do no wrong, No. 7.

[iv] For example, see “Non-conforming HOA voting procedure”,  HOA Constitutional Government.

Rigged HOA elections create a false democracy

Long ago in 1994 Professor McKenzie wrote, “HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[i]  There is no better example of HOA independence than prejudiced HOA election procedures.  In 2013 I wrote,

“HOA members have been repeatedly told that they can change things in their HOA by voting for board members and even by changing the governing documents; that HOAs are democratic because members can vote to make these changes happen. . . . Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy.[ii]

CAI, on the other hand, maintains in its Public Policy statement that,

“Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community.[iii]“

Let me give a prime example of far these pro-HOA procedures can go to deny members a fair and just voting process, one that subtly favors the HOA Board.  In this large scale HOA in Arizona with over 9,000 homes and some $20 million in revenues, amendments to the CC&RS and bylaws are needed to be approved by 67% of the membership.

The governing documents have an unusual, non-standard voting procedure that allows for “consent” by the members, in addition to an actual vote, which constituts a vote and are counted in the approval requirement. Members just have to fill out a form and submit it.  Surprisingly, in contrast to the public voting procedures, this procedure contains

  • no mention of a “cutoff date,” the date that the Consent Form needed to be received by the election committee. A start date, date form first distributed, is mentioned and currently is 5 months ago.
  • no opportunity for a “no” vote, just the wording that not submitting the form would be seen as choosing “ not to consenting to the documents.”
  • A biased, pro-HOA “advertising” on the form itself without any mention of opposing views. “ Moving Forward to the Future.” Other advocacy by the Board is prominent.
  • An annual membership meeting scheduled some 6 months after the ability to submit a Consent Form, but the agenda was silent on actual voting for these amendments instead of submitting a Consent Form, or announcing the results of the “vote.”

This method of voting by the HOA would not pass muster in the public realm.  So much for democracy in action. This election process is rigged in favor of approval, is unjust and negates any choice by the members who may wish to submit a NO vote.  It’s a no-lose approach for the Board since the Form does not allow for NO votes!  It would never fly under the public realm’s fair elections requirements.

In Wittenburg v. Beachwalk HOA,[iv] the California appellate court held that a board is engaged in advocacy when it supported and  urged an approval vote in its materials and communications. The Court’s view was that opposing parties must be given equal opportunity to advocate against the proposition, which is being denied in the above instance, by not allowing a no vote and the open-ended voting process of form submissions with only YES votes.

The Court held that the relevant statute was in the public interest and it sought to

“provide substantial new voting protections” to members of homeowner associations designed to “guarantee that basic democratic principles are in place during elections,” which had previously been “contaminated by manipulation, oppression and intimidation of members, as well as outright fraud.”[v]

Yet, overwhelmingly, according to the CAI surveys, HOA members standby their HOA even though it operates outside of constitutional protections and the laws of the land.  They seem to believe that, like a King, their board can do  no wrong; that, contrary to James Madison’s view that “If angels were to gvern men, neither internal  nor external controls on government would be necessary,” their board must consist of angels.

The HOA legal scheme as set forth in the governing documents and pro-HOA state laws, does not contain a fundamental principle of our constitutional system of government:  checks and balances. The HOA board basically has, for all practical purposes, a free hand to function as an authoritarian government.

By: George K. Staropoli

 

References

[i] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[ii] “Democratic Elections No. 5,” George K. Staropoli, HOA Common Sense: rejecting private government.

[iii] Section 8 in An Introduction to Community Association Living (2006).

[iv] Wittenburg v. Beachwalk HOA,  217 Cal.App.4th 654 (2013).

[v] Id.

NJ HOA constitutionality bill – fair elections

I am pleased to see that 2 legislators (Assemblyman Bob Andrzejczak and Bruce Land) in the NJ Assembly understand HOA constitutional issues and have sponsored a bill, A-3163, accordingly. Herald.com (Cape May County NJ) reports,

“Homeowner’s Associations must operate under similar rules and procedures as other governing bodies,” Andrzejczak said.  “A resident’s interest and right to approve and elect board members must be preserved. And setting clearer, more fair and unified set of rules for board elections and a clarifying a resident’s ability to recall will help to do just that.”

Bruce Land adds,

“Homeowners living in developments are still consumers and must be protected under the law,” said Land. “Ensuring their right to fair elections and protecting their right to choose board members, who will make decisions on their behalf, is a measure of consumer protection that they simply deserve as property owners.”

Homeowner rights advocates in other states must follow this lead and fight for similar HOA constitutional reforms. Six major issues to be pursued can be found in HOA Common Sense: rejecting private government.

Consent to be governed, No. 4

Democratic elections, No. 5

Fair and just hearings, No. 6

HOA Boards can do no wrong, No. 7

Draconian punishment and intimidation, No. 8

HOA Governments in fact, No. 9

In general, on the question of the validity and legitimacy of HOA governing documents and pro-HOA state laws, read:  CC&Rs are a devise for de facto HOA governments to escape constitutional government.