Tag: foreclosure

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.”

HOA Gestapo tactics — the slippery slope steepens

In California there is the report of a midnight raid on HOA members to forcibly evict them. The Courthouse News Series reports (The Foreclosure From Hell) that

“Nine condo residents claim Taser-toting private security guards burst into their homes at 3 a.m. and assaulted them, forcing them into the street in their underwear, in a foreclosure the residents had never been informed of.” 

The security organization for the HOA and the HOA are being sued.  The complaint alleges, among other things, that

“During this approximate two-hour ordeal, the armed men threatened arrest and incarceration, menaced the plaintiffs with weapons, engaged in intimidation, positioning themselves immediately in front of and/or behind the plaintiffs, glaring at them menacingly and invading the plaintiffs’ space.” 

The plaintiffs seek damages for trespass, extortion, assault and battery, false imprisonment, invasion of privacy, conversion and intentional infliction of emotional distress.

In the highly public Travon murder case in Florida questions of HOA negligence are being raised.   In Arizona, for the 5th year, a bill that  re-asserts that public streets within HOA subdivision territories are regulated by the local government and not the HOA was again defeated.   In Illinois, however, the court did put a stop to HOA security people stopping and detaining people on the roads.

The question before us is:  what are the factors, the causes that lead HOA boards to act in such an uppity, defiant manner against their members and the public, as if they were indeed independent principalities?  The simple answer is,  because they can!  Is it the culture within the HOA that is too similar to the experimental conditions of the Milgram and Stanford Prison experiments? (See Why do people harm others in HOAs?)

Is it the public policy that the HOA must survive at the expense of individual rights and freedoms, with members’ losing the privileges and immunities guaranteed to all citizens?  Is it the pro-HOA laws that do not hold the HOA accountable to the state, that presumes that the HOA can do no wrong?  There are no penalties against HOA law-breakers, but there are plenty of state supported penalties that make HOA attorneys rich and force hardship and the loss of one’s home for trivial fines.

With this sentiment, this bias in our culture and society, HOAs have no restraint on running amuck, and on intentionally running amuck as witnessed here with the Gestapo raid.   I wrote about this dangerous slippery slope path in The public policy of the states with respect to HOAs.  In Legislative protection of HOAs: replacing US organic law with HOA organic law I wrote about the disappearance of the social contract and a return to a state of nature, to anarchy.

It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years . . . . And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature.

 Yes, each day, little by little, more and more such acts that were once unthinkable occur as this country speed us along the slippery slope to disaster.  I’m waiting for the knock on the door.  I have my papers ready. 

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.

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

####

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.