Tag: Georgia

Georgia court: A Milestone for Fair and Free Elections

Jade Whitter posted  comments in Home Owners Association (HOA) Information (Oct. 27, 2023, FB)[1], on a Georgia appellate case [2] concerning the fundamental right to fair HOA elections. At issue here is the imposition of a quorum on board elections although the documents were silent on a quorum requirement.

Whitter wrote,

“A Milestone for Fair and Free Elections. The Court’s ruling specifically eliminates the draconian measures that obstructed free and fair elections, namely the use of a quorum as a prerequisite for a valid election. This is significant because ‘lack of quorum’ has been used to invalidate annual elections and keep many of the same individuals serving on the Board.”

The homeowners’ attorney praised the homeowner group,

“It should not be taken lightly the dedicated grass roots efforts that it took to bring this coalition of homeowners together under a unified call for fair and representative elections. I am in awe of the W.E Concerned Homeowners’[3] leadership team that was able to coordinate this effort.”

While in the public domain there are no quorum requirements, there is a downside to no HOA elections quorum. A small, highly active and united clique can take control of the HOA where there is general apathy among the homeowners, or their conduct can be described as a cult following – the HOA can do no wrong. BEWARE!

I cannot stress how vital free HOA elections are to a democratically run HOA where constitutional and fundamental homeowner rights need protection. I commented on fair and democratic HOA elections 0n 2 occasions.[4]

“I cannot overstate the profound damaging effect of the boilerplate CC&Rs covenants – the HOA-Land fair elections doctrine — that define the highly inadequate process and procedures alleged to be fair elections and approved by the member. In a democracy, the fair elections doctrine is the means for the expression of the will of the people and the consent to be governed by the HOA’s members. It is the fundamental basis for a valid consent to be governed. Unjust BOD biased election procedures deny the legitimacy of the HOA-Land doctrine.”

“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. You are being conned!”

[1] See Home Owners Association (HOA) Information.

[2] Willis Et Al. V. Water’s Edge, A23A0868 (Ga. Ct. App.), Decided: October 24, 2023.

[3] Concerned Homeowners is a public FB group.

[4] See in general, Reorienting the HOA board – fair elections and HOA Common Sense, No. 5: Democratic elections.

 

What is an HOA’s duty of care liability to its members and to all others?

State laws, in general, hold that the duty HOA board of directors is one of good faith, and as a fiduciary or prudent person with respect to the members, where “members” does not mean an individual member.  This is based on the nonprofit, membership corporation and HOA/condo Acts that can be found in almost every state.

But, what about tortious or wrongful acts under tort law negligence, or agency law, or real estate law on an owner liability for injuries to others on his property?  And there is also the charitable volunteer laws shielding all but grossly negligent acts by volunteers.   These laws apply although you can’t find them in your CC&Rs or in the HOA/condo statutory Acts, and the average board member probably has very little, if any, awareness of their applicability to HOAs.

I write as a lay person, because no one else is writing and the national lobbying organization is not likely to tell it like it is — nothing bad about HOAs.  Not even any of your state consumer protection agencies.  With respect to the Trayvon murder incident, I wrote about some of these HOA liability issues in, “What is the HOA liability for wrongful acts by its security officers?”   Information has come forth in the media that the Retreat at Twin Lakes, the HOA, either “hired” Zimmerman or at least had knowledge, or should have had knowledge, of Zimmerman’s history.

My initial research into the question of HOA duty of care under tort law of negligent acts revealed a few court cases that shed some light on this question.  The most recent case (The Landings v. Williams, No. A10A1956, GA App. 2011) is the mauling by an alligator of an 83 year old woman on the common property of the HOA in Georgia.  The woman was visiting her family and is an “invitee” (legal term pertaining to a third-party on property held out to the public), and the appellate court denied a motion for reconsideration and upheld the HOA to have a duty of care and was negligent in this instance.

In California, several related cases have been reported by attorney Jeffrey A. Barnett in “Aberrant Behavior in Associations.”  He references the California Supreme Court holding that,

the owner’s duty to provide protection from foreseeable third party crime has always been determined in part by balancing the foresee ability of the harm against the burden of the duty to be imposed . . . . The board can be liable for failure to take reasonable steps to prevent injuries from foreseeable criminal activity.  (Isaac’s v. Huntington Memorial Hospital,38 Cal 30 112 (1985)).

The Court further held (Frances T. v. Village Green Owners Assn., 42 Cal 3d. 490 (1986), “that a homeowners association has a duty to exercise due care for the safety of residents in those areas under the association’s control.”  And that,

the property owner’s duty includes exercising reasonable care to discover whether criminal acts are being, or are likely to be, committed upon the owner’s land. If an investigation would in all probability lead to the discovery of prior similar incidents to the occurrence giving rise to an injury, constructive knowledge of such incidents is imparted to the property owner, and the owner may be liable for the damage resulting from the criminal activity.  (Phillips v. Perils of Pauline Food Production, Inc., 35 Cal.App. 4th 1510 (1995).

The HOA board cannot be allowed to justify negligence of this magnitude in the Trayvon slaying by claiming that they are just poor unpaid volunteers working for the community.  No!  HOA boards must be held accountable like all other government officials and entities.  Our public officials and entities are not given absolute immunity, and neither should that be given to HOA boards.

In search of the elusive ideal HOA agreement

 

I received an email from a well-intentioned homeowner in Georgia. He was on the committee to rewrite the CC&Rs to make it fair both to the 692 homeowners and the HOA, which, I hope he realizes, is the current board of directors. He asked for my input, so I wrote in return:

 

  1. Do you think the Committee can create a more perfect union than that attempted in writing the US Constitution?

  2. Do you think 692 people can agree on everything in the CC&RS that you are putting together?

  3. Do you think 692 people really care about HOA government participation, or did they just want to buy a home?

  4. Would the Committee and the HOA Board sign, along with the 692 owners, the  Truth in HOAs Disclosure Agreement?

  5. Would the Committee include a guarantee that the HOA will maintain property values in exchange for the various waivers and surrenders of the owner’s private property rights and interests, both explicitly stated or implied by the CC&Rs, or by future court rulings? If not, then what is the buyer getting from the HOA? In a true democracy, people give up certain of their rights to the government in exchange for gurantees, justice, protections against more powerful factions, and to obtain an orderly, smooth-running society.

  6. Would the Committee include a prohibition on“ex post facto” amendments to the CC&Rs, similar to that in the US Constitution? That is, honor all prior CC&Rs versions existing at the time of each owner’s purchase? In other words, they are all grandfathered.

  7. Would the Committee include wording to the effect that the HOA irrevocably agrees to be bound and subject to the US Constitution and Bill of Rights in the same manner as if it were a local public government entity, as all other forms of are bound and subject? The phrase, “in the same manner as if it were a local public government entity,” is mandatory. Simply agreeing to obey the Constitution, as found in some CC&Rs, is meaningless would not subject the private HOA entity to the 5th and 14th Amendments.

Now, I hope you will realize the impossibility of your task and its expected failure. No one can expect a bona fide acceptance and willingness to obey any CC&Rs that are created as a mass marketing device to be sold to the public at large. And one that cannot be modified by the buyer in a true give and take exchange necessary for a valid and binding contract.