Tag: government

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

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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.

Statement to NC Select HOA Committee

January 17, 2012

Mr. Ed Stiles
Committee Assistant
NC House Select Committee on HOAs
 
email statement

Statement to the NC House Select Committee on HOAs

January 23, 2012 Meeting

Dear Committee Members,

I am submitting this email statement for inclusion into the record for the January 23, 2012 hearing on homeowners associations. I am a nationally recognized homeowner rights advocate who believes in “supporting principles of democratic government.”

Over my 13 years of involvement in HOA reform legislation across this country, I have witnessed a slow, but steady, change in the perception of homeowner associations from “the next best thing to Mom’s apple pie” to the realization of that there are “worts” all over the HOA legal concept and statutes. The reason for this has been the extensive use of the internet by advocates, and the inability of the pro-HOA forces and national lobbyists in every state to stifle their voices. For over 48 years, since the introduction of the “HOA “bible”, the Homes Association Handbook, these forces held sway and shaped the attitudes of the public, the media, the policy makers, and state legislators. They exclaimed the virtues and benefits of the HOA scheme, and hid the worts, the serious defects, among the most egregious being the denial that HOAs are authoritarian, private, de facto governments that function as independent principalities. As such, HOAs are illegitimate local governments.

I am not rejecting the freedom of choice, if indeed that is a fact, in selecting the perceived benefits of a planned community by buyers, but the mass merchandising of these HOAs under highly questionable sales and advertising methods – misrepresentation, fraud, half-truths, false truths. As an example, no state has adopted anything close to the “Truth in HOAs Disclosure Agreement” that serves as a notice and warning of what HOA life is really about. (See, Appendix A, Model Consent to be Governed Disclosure Bill). I am not objecting to that real estate “package” of benefits, but to the form and nature of the governing body of the subdivision, commonly known as the Homeowners Association, and the adhesive CC&Rs “contract” that denies constitutional protections of due process and the equal application of the law.

HOAs are unaccountable to the state government. The statutes are unconstitutional special laws for special organizations, that reject contract law and constitutional law for the common law of equitable servitudes. As long-time advocate Evan McKenzie wrote in Privatopia (1994),

In a variety of ways, these private governments are illiberal and undemocratic. Most significantly boards of directors operate outside constitutional restrictions because the law views them as business entities rather than governments. . . . [They] are inconsistent not only with political theories of legitimacy but with the normal process by which governments are created. . . . Thus these ‘private governments’ may violate the equal protection clause of the Fourteenth Amendment. (Chapter 6).

There is no justification for the non-application of the laws of the land, and the denial of fundamental rights, freedoms, privileges and immunities for homeowners with such weak arguments as: “better landscapes make better communities,” or the shifting of residential development costs from the local municipality to the homeowners, or “they agreed to be bound.” The last of which is a mockery of justice and our system of government as it allows the waiver and surrender of rights and freedoms by the mere posting of a Declaration of CC&RS to the county clerk, sight unseen by those who will be bound by the CC&Rs, by a profit seeking developer adhesion contract.

This Committee has the opportunity to begin to set things right, to restore this country to “one nation, under God, indivisible, with liberty and justice for all,” and to remove this second form of local government that has seceded from and rejects the Constitution. The Committee will hear from HOA supporters and from self-interest groups who should, by this time, understand that they, too, are rejecting the Constitution and the principles of democratic government. And more importantly, it will hear “petitions for redress” from homeowners. Do not fail the citizens of North Carolina. Do not cause them to have to say, “Our repeated petitions have been answered only by repeated injury.”

I ask that the Committee to do justice by paying heed to those petitions by homeowners and taking on the long overdue HOA reforms being asked.

My HOA profile, Appendix B, is provided for your convenience.

Respectfully submitted,

George K. Staropoli
President
 

HOA debate: illegitimate government and invalid CC&Rs contract

A very important and lengthy exchange on substantive matters regarding the HOA legal structure and concept can be found on Evan McKenzie’s The Privatopia Papers blog. The topics of discussion are the legitimacy of private HOA government and the validity of CC&Rs as contracts.

Participants, as of this writing, including McKenzie, are Tyler Berding, a California attorney, and homeowner rights advocates Fred Pilot, Fred Fischer and yours truly. The discussion is under the heading, “Do owners believe CC&Rs are contracts?” in the January 2012 postings. The debate was triggered by Pilot’s post of December 31, 2011, commenting on a article wherein he states, “That’s because people don’t see HOA covenants — a real property contrivance — as contracts,” and, “In addition, many property owners don’t see HOAs as legitimate governing authorities.” There are an additional 10 comments on this posting as of this writing. 

Follow the debate at The Privatopia Papers.

Thanks to Evan McKenzie, author of Privatopia (1994) and Beyond Privatopia (2011), for publicizing this important debate.

HOA-Land — the failure to democratize

Note: The following is an excerpt from my paper, “Are the American people rejecting democracy at the local level?”

HOA-Land — the failure to democratize

 Will the acceptance of authoritarian private local governments in the US result in a weakening of democracy in America, and destroy “one nation, indivisible, with liberty and justice for all”?  

“Democratization” describes the processes underlying “the emergence, the deepening, and survival of democracy” in a society.  Democratization is also concerned with the forces that affect the sustainability of a democracy.  And that’s the issue before us:  Has the First American Experiment with representative democracy succumbed to the “emergence and acceptance of a quiet innovation in housing,” the Second American Experiment? This New America of HOA-Land?[i] 

In his “Theories of Democratization”,[ii] Christian Welzel presents a case well applicable to HOA societies.  Welzel believes that, “Democratization is sustainable to the extent to which it advances in response to pressures from within a society.”  It appears that HOA-Land dwellers feel no need to pressure for change, just like Mayer discovered with his interviews after WW II.

People power is institutionalized through civic freedoms that entitle people to govern their lives, allowing them to follow their personal preferences in governing their private lives and to make their political preferences count in governing public life.

Since democracy is about people power, it originates in conditions that place resources of power in the hands of wider parts of the populace, such that authorities cannot access these resources without making concessions to their beholders. But when rulers gain access to a source of revenue they can bring under their control without anyone’s consent, they have the means to finance tools of coercion.

 The above amply defines the dynamics of political machines and power cliques that operate, more or less, within all HOAs from benevolent dictatorships to rogue boards. And with respect to voting as the sole indicator of a democracy, it is well known that HOAs are woefully deficient in fair and just elections, with no “fair elections” laws in effect. Welzel goes on to say,

Many new democracies have successfully installed competitive electoral regimes but their elites are corrupt and lack a commitment to the rule of law that is needed to enforce the civic freedoms that define democracy. These deficiencies render democracy ineffective. The installation of electoral democracy can be triggered by external forces and incentives. But whether electoral democracy becomes effective in respecting and protecting people’s civic freedoms depends on domestic factors. Democracies have become effective only where the masses put the elites under pressure to respect their freedoms.

 Once again we are told that there’s a need for pressure from within, from those living in HOAs, to uphold their Constitutional protections.  Even if state governments decide to enforce constitutional protections and the equal application of state laws, it remains with the HOA-Land residents to defend our system of government.  Welzel reaffirms this essential requirement, “It is only when people come to find appeal in the freedoms that define democracy that they begin to consider dictatorial powers as illegitimate.”

 Welzel offers a path to victory to stop this erosion of democracy within America that is highly applicable to the social movement for HOA reforms.

 As social movement research has shown, powerful mass movements do not simply emerge from growing resources among the population. Social movements must be inspired by a common cause that motivates their supporters to take costly and risky actions. This requires ideological ‘frames’ that create meaning and grant legitimacy to a common cause so that people follow it with inner conviction.

This is why values are important. To advance democracy, people have not only to be capable to struggle for its advancement; they also have to be willing to do so. And for this to happen, they must value the freedoms that define democracy. This is not always a given, and is subject to changes in the process of value transformation.

 And what about our elected officials?

 However, although Welzel writes that “elites [those in power, the cliques] concede democracy even in the absence of mass pressures”, it is only “when these elites depend on the will of external powers and when these powers are pushing for democracy.”   But, with respect to HOA regimes, Americans cannot accept this state of affairs by state legislatures, especially not with respect to these fundamental issues of democratic governance — the very soul of this country.  The absence of legislative support, sua sponte (on their own), for HOA reforms throughout the country is inexcusable! 

 

[i]Understanding the New America of HOA-Land, George K. Staropoli (StarMan Publishing 2010).

[ii] “Theories of Democratization”, Christian Welzel, Democratization, Christian W. Haerpfer, ed.  (Oxford University Press USA 2009).