Tag: government

Calif. HOA laws and community service districts

November 18, 2010

                                                                                                                                   email letter

Mr. Brian Hebert

Executive Secretary

California Law Review Commission
4000 Middlefield Road, Room D-1
Palo Alto, California 94303-4739

                                                                                       re: Study H-855

                                                                                       Memo 2010-8

                                                                                       CID Law

Dear Mr. Hebert:

 I am quite disappointed with the Commission’s continued effort to replace the Davis-Stirling using a carbon copy with revisions dealing with the minutia of CID operations.  And still refusing to recognize CIDs as de facto governments, much as Cuba is an unrecognized but de facto government.  Furthermore, CLRC has seen fit to retain the placement of these special laws for the governance of communities under the Civil Code. 

 It appears that the special interest agenda, promoted by the national lobbying trade organization, Community Associations Institute (CAI), still dominates the Commission’s thinking.  Is the Commission aware of CAI’s repudiation of the US Constitution when it wrote in its amicus brief to the NJ appellate court in Twin Rivers that, “In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . ” ? Committee For A Better Twin Rivers v. Twin Rivers Homeowners Association (TRHA), Docket No. C-121-00, 2004.

Davis-Stirling and the Commission’s proposed rewrite continue to reflect the State’s exercise of “coercive power”, and “significant encouragement, either overt or covert”  with regard to CIDs.  The CID Laws portray the CID  in a “symbiotic relationship” with the state, “entwined with governmental policies,” and the state government is “entwined in [the CID’s] management or control.”  Such conditions give easy rise to declaring the CID as a state actor.  (See the summary of state action criteria as set forth by the US Supreme Court in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 2001).

I cannot understand why the Commission continues to permit agreements by private parties to create local, private governments that are authoritarian and that deny homeowners their rights and freedoms to which they would otherwise be entitled.  These “declarations” and CC&Rs are just that – devises to circumvent the application of constitutional protections and prohibitions with respect to local communities.  The unsuspecting public is bound to these so-called agreements by virtue of taking hold on their deed sight unseen, without ever having to read, understand or sign these CC&Rs.  The filing of these CC&Rs alone are necessary and sufficient to bind the homeowner, under servitude laws, and not contract law; where the legal-academic aristocrats offer advice that if a conflict exists between servitude law and constitutional law, servitudes law should prevail. (See Restatement Third, Property: Servitudes, § 3.1, comment h).

 It is even more disturbing when existing California law, and similar laws in other states, permit the ability to attain the advertised benefits to the greater community of California and to the local CID community under municipality laws.  In general, they are the special taxing district laws, and in California they are the District and Community Service District Codes (see Government Code, Title 6, §§ 58000 and 61000 et seq. below for the relevant excerpts).  If town hall democracy, local autonomy and the “voice of the community” are indeed the objectives of good government, then the District Code  will meet these objectives, where the replacement of Davis-Stirling is nothing more than a top-down imposition on the local community of special laws for private organizations.  The CID would be subject to the 14th Amendment as are all other public entities, and the laws of the land would indeed be equal for all people.

 I outline the simple method for accomplishing the transformation of CIDs to taxing districts in Chapter 2 of
Understanding the New America of HOA-Lands  (attached for your edification and convenience).  Chapter 3  explores ideal HOA constitutions and Chapter 4 is a lengthy discussion of the two forms of American political government:  HOAs and public entities.


 The Commission should cease and desist its current efforts to further promote the establishment of the second form of American political government, the CID, and return to supporting the principles of democratic government under the US and California Constitutions.

 

Respectfully,

George K. Staropoli

President

Citizens for Constitutional Local Government

 

References

California  Government Code Title 6,  Districts, Division 1, General, § 58000 et seq., and in particular Division 3, Community Service Districts, § 61000 et seq. as relevant.

 

§ 61001.

(a) The Legislature finds and declares all of the following:

(1) The differences among California’s communities reflect the broad diversity of the state’s population, geography, natural resources, history, and economy.

 

(b) The Legislature finds and declares that for many communities,community services districts may be any of the following:

(1) A permanent form of governance that can provide locally adequate levels of public facilities and services.

(3) A form of governance that can serve as an alternative to the incorporation of a new city.

 

(c) In enacting this division, it is the intent of the Legislature: (1) To continue a broad statutory authority for a class of limited-purpose special districts to provide a wide variety of public facilities and services.

(3) That residents, property owners, and public officials use the powers and procedures provided by the Community Services District Law to meet the diversity of the local conditions, circumstances, and resources.

 

FL attorney ridicules HOA Syndrome and homeowner sufferings

 
Shame on Ryan Poliakoff, a Florida attorney, and HOA activist and supporter.
  
He ridicules the suffering, and emotional and physical stress caused by unconscionable CC&R adhesion contracts, defended by the Poliakoffs and other CAI attorneys, and supported by pro-HOA statutes.  (Photo from Poliakoff article).

“So, let’s get this straight.  A kooky psychology professor famous for “cinematherapy,” a chiropractor and a politically-aware anti-HOA lawyer walk into a bar…

“In any event, if any of the maladies in the links above seem familiar to you, maybe you too are suffering from the dreaded HOA Syndrome.  I recommend you call your doctor.  But don’t get upset with me if she can’t stop laughing.  Maybe this post should be under comedy, after all.”

Note the failure to address statements made before various state legislative committees, among them Arizona, California, Texas and Florida’s own Rep. Robaina Hearings.  He should also read the comments to my Commentary,   
Psychologist defines the HOA Syndrome caused by oppressive HOAs

Shame on Poliakoff and those legislators who also see no evil, hear no evil and speak no evil — those who are active participants in the Unspoken Alliance of No negatives About HOAs.

 
Shame on Ryan Poliakoff!   He should be disbarred!
 

America Revisited – My Country Was of Thee

America Revisited

 

My country was of thee.

Now with no liberty,

whose loss I sing.

Land where your freedom died

 Constitution aside

where HOAs reside,

profiteers bring.

 

Government by the few

Is Constitution through?

Sadly I cry.

My private property

is mine no longer free.

Accepted as it be,

freedom will die. 

 

Private contracts decide

writ by a few who hide.  

It cannot be.

Aristocrats control,

the people lost their soul

gave up their noble goal,

this do I see.

 

HOAs override

democracy they hide,

of this I sing.

Legislators  agree

no evil do they see.

From sea to shining sea,

let freedom ring.

                                

                                 George K. Staropoli

                      Oct. 21, 2010

 

 

 The national homeowner rights advocacy  patriotic  song.   Recite same as America (My Country Tis  of Thee). 
  
 

 

Unrecognized, de facto government: the State of Frankland should have written CC&Rs

 
And you thought that unrecognized de facto goverments, like HOAs regimes, were a figment of my imagination.

The State of Franklin was set up in 1784 out of the westerly portion of the colonial state of North Carolina. Shortly after the War of Independence the original colonies were asked to pay for the war efforts and create a country with a sound financial policy. Since the taxing the population was difficult and cash was in short supply North Carolina ceded the western portion of the state to the federal coffers. Before the Congress could accept the offer North Carolina withdrew the offer. The citizens of the region decided that federal rule in the meantime was probably a good idea since North Carolina as a state had given this remote region little support in its fight with the Indians or protection from criminal refugees. They saw other benefits as an independent state in terms of taxation, representation and an understanding attitude toward local problems. Representatives of the North Carolina counties of Sullivan, Washington, Greene, and Davidson accepted the offer of cessation to federal territory. The state of Franklin existed for only four years to finally merge with the new state of Tennessee. 

http://www.next1000.com/family/GRUBB/sullivan.tenn.html

Attempt at statehood
  
The State of Franklin, known also as the Free Republic of Franklin or the State of Frankland (the latter being the name submitted to the Continental Congress when it considered the territory’s application for statehood[1]), was an autonomous United States territory created in 1784On May 16, 1785, a delegation submitted a petition for statehood to the Continental Congress. Seven states voted to admit what would have been the 14th federal state under the proposed name Frankland. The number of states voting in favor of statehood, however, fell short of the two-thirds majority required to admit a territory to statehood under the Articles of Confederation. Late the following month, the government again convened to address their options and to replace the vacancy at Speaker of the House, which had been held by the late William Cage. Addressing the vacancy, Joseph Hardin was elected to the Speaker of the House position. Then, in an attempt to curry favor for their cause, delegation leaders changed the proposed name to “Franklin” (after Benjamin Franklin), and even initiated a correspondence with the patriot to sway him to support their cause. Franklin politely refused, writing:

I am sensible of the honor which your Excellencey and your council do me, but being in Europe when your State was formed I am too little acquainted with the circumstances to be able to offer you anything just now that may be of importance, since everything material that regards your welfare will doubtless have occurred to yourselves. …I will endeavor to inform myself more perfectly of your affairs by inquiry and searching the records of Congress and if anything should occur to me that I think may be useful to you, you shall hear from me thereupon.[4] —Franklin’s letter to Governor John Sevier, 1787

Independent Republic

After the failed statehood attempt, the now de facto independent republic was ‘officially’ re-named Franklin.

 Up to this point, the government had been assembling at Jonesborough, mere blocks from the competing (although idle) North Carolina seat of government. Because of this, Greeneville was declared the new capital. The first legislature to meet there did so in December, 1785. At Greeneville, they finally adopted a permanent constitution, known as the “Holston Constitution”,[5] a decree which was modeled on that of North Carolina with few changes.

The new legislature made treaties with the Indian tribes in the area, opened courts, incorporated and annexed five new counties (see map below), and fixed taxes and officers’ salaries.[6] Barter was the economic system de jure, with anything in common use among the people allowed in payment to settle debts, including federal or foreign money, corn, tobacco, apple brandy, and skins (Sevier himself was often paid in deer hides). Citizens were granted a two-year reprieve on paying taxes, but this lack of currency and economic infrastructure slowed development and created confusion.

The year 1786 was the beginning of the end of the small state. Franklin was placed in a precarious position by not having been admitted to the United States. Because it shunned North Carolina’s claims of sovereignty over it, Franklin did not have the benefit of either the national army or the North Carolina militia. North Carolina offered to waive all back taxes if Franklin would reunite with its government. When this offer was rejected, North Carolina moved in troops under the leadership of Col. John Tipton and re-established its own government in the region. The two rival administrations competed side by side for many months. Loyalties were divided among local residents.

http://en.wikipedia.org/wiki/State_of_Franklin

  

HOA foreclosures illegal under “no title” rulings?

I now address the overall legitimacy of this right by the HOA to foreclose. I have said enough about the HOA draconian foreclosure right, its discriminatory nature, and its cruel and unusual punishment aspect when the homeowner losses more than 10 times the amount owed the HOA. Or the fact that it reflects the mismanagement by the board who refuse to use standard AICPA “provisions for bad debts” to ameliorate any shortfalls.

Most CC&Rs and state laws grant the HOA a lien on the homeowner’s property from the day the assessment is due, and that the perfection of that lien is automatic when the CC&Rs are filed with the county clerk. They go on to say that the foreclosure of the lien is the same as a mortgage foreclosure. And, to get around the protections against deficiency sales, the right to a personal judgment is given the HOA by the unsuspecting homeowner. However, if the underlying right to foreclose is invalid, then the personal judgment is notwithstanding. Also, the claim that the lien is supposedly a valid consensual lien is irrelevant to the argument advanced below.

Recent developments (see in general, “MERS: Is Your Home Foreclosure Proof?”) have surfaced the longstanding rule of law that to foreclose on real property, the plaintiff must be able to establish the chain of title entitling it to relief. Although the court rulings pertain to the electronic deed filing service, MERS, the reasoning can easily be applied to HOAs since they do not hold title, nor can they establish a chain of title for relief. The law requires that the party foreclosing must produce a promissory note or assignment that it is entitled to relief. The recent court cases held that, in regard to MERS, if the foreclosing party is not the title holder of properties held in its name, the chain of title has been broken, and no one may have standing to sue.

 

We all know that the HOA is not the title holder, nor has an assignment of interests in the property. Remember that the laws and CC&Rs explicitly specify that the HOA foreclosure procedure follows a mortgage foreclosure procedure, which renders its right to foreclose invalid under the recent court holdings (California, Florida, Kansas, Nebraska all serve as persuasive precedent). If the laws so favored the protection of a person’s home as to require a proof of a chain of title, there should be no exception for the HOA to have a bona fide right to foreclose.

There cannot be unconstitutional special laws for a private organization without passing judicial scrutiny as to an appropriate level of government interest or purpose. If there is such a compelling necessity, and not just a convenience, then why not protect the homeowner by declaring the HOA a government entity subject to the same constitutional restrictions and prohibitions as all other government entities are subject?

 

These recent developments also raise the issue of an entitlement to relief. What is the entitlement to relief owe to the HOA that warrants cruel and excessive punishment through foreclosure? What are the damages to the HOA that are never stated by the HOA to warrant such a draconian procedure? Damages that favor and benefit the third-party HOA attorney more than the HOA itself? If the lender must produce a chain of title when it has advanced hard cash, why is the HOA, who has not advanced any hard cash, entitled to the same relief?

 

Homeowners facing HOA foreclosures should immediately contact a lawyer to pursue this defense and put a stop to draconian foreclosures that serve to intimidate and punish homeowners who have fallen on hard times.