Florida – Page 5 – HOA Constitutional Government

Behold the power of the HOA over your private property

Joanne McCarn owns her home, but her homeowners association has taken it over and calls the sheriff’s office if she comes near the property. What’s more, the Bridgewater Community Association evicted her tenant, changed the locks and moved in its own renter. “This is not a foreclosed house,” McCarn said. “This is still my house. It’s unfair how much power the HOA has. It’s so surreal to me.”

Homeowners association rents home it doesn’t own

Everyone should be aware of the slight-of-hand redefinition of the real estate ownership known as “fee simple.” Read your deed that states the title to your HOA controlled property. It commonly says “in fee simple,” where, at the state time and in the same deed, you surrender so much of your rights and interests. And legally without the need to see, or read, or consent to this surrender. Just take your deed with that two line, un-emphasized statement that says, “subject to covenant, conditions and restrictions,” followed by “as may apply” or “if any.”

This legal real estate form of title/ownership meant an “absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of “fee,” but is used to show the fee (absolute title) is not a “conditional fee” (my emphasis). So, what does “fee simple” really mean in regard to these gross surrenders of rights and interests in your new HOA controlled home?

Returning to this nasty incident by the HOA,

In Solomon’s view [an HOA attorney], that doesn’t make it right — or legal. It’s more a measure of how complicated the housing bust has grown.

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].

Solomon and other legal authorities contacted by the Tribune say the eviction may be legal. The reason: McCarn moved a tenant into the house without paying off a lien the association had imposed. But there are no legal grounds, Solomon said, for the association to change locks and move in another tenant. The association imposed the lien in 2009, but McCarn said she never learned about it until later, when the association persuaded a court to evict her tenant for nonpayment of the rent. The association had demanded that the tenant stop paying rent to McCarn and pay it instead.

Just another “gotcha” when it comes to the powers of HOAs, protected by state public policy. Just another example of an innocent homeowner being forced to protect her rights by going to court. And hopefully, as quoted above by attorney Solomon, she brings a competent lawyer with her.

If Trayvon HOA is sued, who should share the blame?

As indicated in the media and earlier (What is an HOA’s duty of care liability to its members and to all others?), the HOA could be sued under a number of legalities as determined by the facts. It is important to ask what factors led to the use of Zimmerman by the HOA. Under the legal doctrine could the homeowner members and even the public policies of the state that amount to a “hands-off” accountability toward HOAs — they can do no wrong — be held liable?

The latest media report (Homeowner association could be sued in Martin case) reminds everyone that the homeowners would most likely have to reach into their pockets.

“So, if you’re going to send out a newsletter saying, ‘Hey, he is the captain. Whatever he says goes,’ you have now basically rented a free police officer for your neighborhood,” Clark said. “He certainly took on that role with the homeowners association, and it seems to me that they recognized that.”

Who would pay in the event of such a lawsuit would probably be determined by the type of insurance coverage the association has, Clark said. Some policies may be wide enough to cover Zimmerman’s actions. If there is no policy or the policy in place is very narrow in its coverage, homeowners likely would have to pay out of their own pockets through higher monthly assessment fees because most associations don’t have very deep reserves, he said. He noted that policies typically cover about $1 million.

Many will cry out that it would be unfair and just to make the homeowners pay for the neglect, if true, by the board. But would it? It is obvious that the board of directors, the legal body responsible for managing the HOA would be first and foremost. But what about the homeowners themselves, who have oversight control through the election and recall of board members?

Under a “ re ipsa loguitor” (a form of circumstantial evidence that permits a reasonable person to surmise that the most probable cause of an accident was the defendant’s negligence) theory, do the homeowners have a share of the blame in actions by the HOA’s agents? Would the fact that HOA members are well known to apathetic with respect to the acts and actions of their elected boards absolve them of any failure to act?

In turn, the homeowners could argue that the homeowners’ hands are tied, for the most part, by the adhesion contract CC&Rs that permit an imbalance of powers to the HOA over the rights and liberties of the members, and by statute. That the ineffective pro-HOA state laws reflect a public policy in support of the survival of the HOA at the expense of the homeowner. (See The public policy of the states with respect to HOAs).

Laws that have no enforcement penalties against HOA board wrong-doing may explain some of the members’ apathy — “What’s the use?” You can’t fight city hall.” Laws that Alexander Hamilton called, “recommendations.” “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.” (Federalist #15).

It is difficult to understand the rationality for this hands-off policy that flies in the face of our system of governance, with its checks and balances and separation of powers doctrines felt necessary to restrain the power of government. “If angels were to govern men, neither external nor internal controls on government would be necessary.” ( James Madison, The Federalist papers, # 51).

In answer to the question posed here as to who should share the blame, the answer must be “all the above.” And state legislatures are in the power seat to make the needed changes to fulfill the special interest propaganda of healthy and harmonious communities. All that the state legislatures have to do is to do justice and SAY NO to the special interests!

AZ HB 2030 – slippery slope to Sanford police dept.?

The failures and continued actions of the Sanford, FL police department, with respect to the failure to uphold the laws on arrest in the Trayvon slaying, is disturbing. It reeks of a total disregard for justice and fair play. It causes me to consider what if your neighborhood HOA had these powers? The public policy with respect to HOAs has been a hands-off policy with and no accountability under the law – let them do as they please. Just as it seems the Sanford police department has adopted with its failure to arrest Zimmerman.

And yet, the Arizona Legislature sees no serious issue with the unrestricted delegation of regulatory powers to HOAs over parking on public streets as set forth in HB 2030.

“An association may regulate the parking of noncommercial vehicles on any roadway for which the ownership has been dedicated to or is otherwise held by a governmental entity . . . .”

My suggested amendment was ignored, “may regulate the parking . . . only with respect to parking by the members of the HOA who have waived their right to public parking on public streets within the HOA governed subdivision.” And the legislature rejected the position that the HOA can get a variance if it has legitimate parking concerns, like everybody else! The legislative intent to allow further unrestricted powers to these independent HOAs has become much clearer.

Would this bill put us on the slippery slope path that can produce an event like the Trayvon slaying? In Arizona, you can carry concealed weapons almost anywhere. The bill does not create any new laws, but is simply a re-affirmation for all to know of who runs local government. If this bill becomes law, then I believe we are on the slippery slope to the “law and order” of the wild, wild west by the power factions, like the cattle barons, railroad, and mining interests of the Old West. Arizona already had one incident where two HOA board members were killed in 2000 during a board meeting.

Although the bill is only about parking at this point, the real import of this bill is the starting out on the slippery pathway to further lawlwssness by HOAs. Where does it say that the the uniformed and arm-banded “HOA Security,” the police arm of the HOA, cannot stop and detain – that means ‘arrest’ — people on public streets? And Maricopa County Sheriff Joe Arpaio doesn’t want to do police public streets in HOA subdivisions. And we well know the great care and concern for proper procedure and obedience to the laws as exhibited by HOAs today in other areas. Can an incident like in Sanford happen with this grant of unrestricted powers?

Won’t happen here? Too far fetched? Wanna bet? To a lesser extent lawlessness is happening everyday in HOA-Land, with respect to such issues as, failing to respond to records requests, making up rules on the fly, arbitrarily fining people, “political machine” elections, and going to court on the most trivial grounds, etc. Now what will these rogue boards do next?

60 minutes legal analyst pooh-poohs HOA negligence in Trayvon slaying

CBS legal analyst, Andrew Cohen, wrote in the Atlantic,

”The homeowners association? What? At the same time that Sooner was trying to rehabilitate Zimmerman, the Martin family attorney, Ben Crump, was suggesting that Zimmerman’s homeowners association may have some civil liability here because it reportedly encouraged residents to coordinate their “neighbor watch” concerns with Zimmerman. Crump would have to prove that this was negligence. Good luck with that — and bring on the depositions!”

“Andrew Cohen – Andrew Cohen is a contributing editor at The Atlantic and legal analyst for 60 Minutes. He is also chief analyst and legal editor for CBS Radio News and has won a Murrow Award as one of the nation’s leading legal analysts and commentators.”

Trayvon Martin Case: Zimmerman Builds His Defense

Just goes to show that this legal expert dismisses questions of negligence by the HOA, but does he really know about what goes on in HOAs, or the HOA respondeat superior failure to oversee agents. I will hazard a guess that what he has learned about HOAs comes from the propaganda by “Great Educator” and national HOA lobbyist organization, Community Associations Institute, CAI.

Mr. Cohen, with all due respect, please read the other side of the issue with HOAs, the Truth in HOAs Disclosure Agreement, and Should the Trayson family sue the HOA?

PS. Twitter notice linked to Mr. Cohen at @CBSAndrew

Was Zimmerman acting in a lawful manner?

A lot has been reported about Zimmerman’s actions that led to his claim of self-defense and protection under what is generally known as Florida’s “stand your ground” law. A lot has been reported in defense of Zimmerman by the Sanford police position that claims it can only rely on the statements of Zimmerman, as there was no other evidence. Well, that’s understandable — “dead men tell no tales.”

But evidence has been coming forth, but no questioning of or arresting Zimmerman. From the evidence at hand, it must be asked if Zimmerman was acting lawfully, which shouldn’t be too hard a case to make under the “reasonable suspicion” or “probable cause” standards for an arrest. The court makes the determination of whether or not a crime has taken place, not the police.

The Florida statute before us is, “§ 776.013, Home protection; use of deadly force; presumption of fear of death or great bodily harm,” Title XLVI, Chapter 776, Justifiable Use of Force. Here’s what must be decided by the court, not the police. Paragraph (1) sets forth what constitutes reasonable fear of harm. Under 1a, was Trayvon unlawfully entering a home? Under 1b, did Zimmerman have knowledge or “reasonable suspicion,” a standard for all law enforcement to adhere, an unlawful act by Trayvon?

Under 2c, was Zimmerman engaged in an unlawful act in stopping Trayvon? Under a recent Illinois court decision, HOA security officers could not stop and detain people.

It is under paragraph 3 that the police have apparently chosen to see and to ignore all else.

So, is the Sanford Police Department the tail wagging the dog of justice?

————————————————————————-

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle . . . .

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(c) The person who uses defensive force is engaged in an unlawful activity. . .

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.