Tag: homewoners association

HOA resident applicant questionnaire

I received an email the other day asking for my expert opinion on a proposed application questionnaire for HOA renters.  I replied by asking if the questionnaire would apply to buyers, also, to which the emailer responded, Yes.  Here are the areas of concern as to what should be asked of applicants:

1) Requiring a stated income level (i.e., $30,000, $50,000, $70,000 and so on):

2) Requiring last two year’s tax returns:

3) Please comment on credit score section (Page 1, #3):

4) Please comment on 30-day completion time:

5) Please comment on personal interview by board of directors:

6) Please comment on statement concerning “board’s decision will be final and no reason will be given (i.e., denial).” This statement is immediately above signature line on Page 4:

I responded with:

Adopting such an approach would befit an exclusive community — for those few good men, and women.  It would probably reduce the desirability for the general public, but may attract the few.  It would also hurt sales by existing owners. I believe the promoters of planned communities going back to the gitgo knew that HOAs were not for everybody, but they were interested in the  mass merchandising of HOAs to everyone.

Financial status was already checked by the mortgage insurers, so it buys the HOA very little in any greater protection.   Maybe in regard to getting some assets from the unethical, in my onion, foreclosure auctions. 

However, it will allow a people to people discussion to get a better “feel” for one another.  But, then again, only half the story would be told, since there does exist this unspoken alliance of “No Negatives About HOAs.”  For example, would the board be willing to say to prospective members, “You understand that your home will be collateral for the survival of the HOA?”

It would be interesting to know how this approach plays out.

HOAs and unauthorized practice of law

I just received a copy of a letter from a homeowner in which the HOA manager explains the rights of the homeowner under the CC&Rs.  This is not an uncommon occurrence, where untrained and uneducated managers, even if they are  a Certified Legal Document Preparer (independent paralegal), make such statements in response to a homeowner’s request  “to know”.  The average homeowner is not familiar with the law and usually doesn’t understand what the rules mean or say.  And, obviously, the same goes for these HOA managers, including those with those CAI “certified” as to training designations — PCAM, AAMC, etc.
 
The manager, in defense of a board rule change, had misdirected the homeowner by quoting a section of the CC&Rs that grants the board to the right to create rules and regulations.  However, the issue at hand and pointed out to the manager, limiting the number or dogs, is not specified in the CC&Rs, which simple says dogs may be kept.  Consequently, the CC&Rs would have to be modified accordingly to specify any limitation, not by a vote of the board, but by the members.  This is both unethical and an outrageous unauthorized practice of law, which I shall say once more, occurs all too frequently under HOA regimes.
 
The letter did not contain a disclaimer that, “I am not giving legal advice or opinion, and I am not an attorney nor employed by an attorney.  You should seek independent legal advice from a competent attorney.”  (Remember that the HOA attorney is just that, the attorney for the fictitious HOA and not for the opposing party, the homeowner.) This simple disclaimer never appears on statements made by HOA managers, in violation of Arizona, and all other state UPL (Unauthorized practice of law’) restrictions.  Under  the Arizona Rules of the Supreme Court, R 31(a)(2)(A), “‘Practice of law’ means providing legal advice or services to or for another by: (5) negotiating legal rights or responsibilities for a specific person or entity.”
 
Rule 31(a)(2)(B) states:  “‘Unauthorized practice of law’ includes but is not limited to:  (1) engaging in the practice of law by persons or entities not authorized to practice pursuant to paragraphs (b) or (c)”
 
 
Subsections (b) and (c) state that UPL occurs when a person is not a member of the State Bar, including a disbarred or restricted Bar member.
 
 
IMPORTANT
 
If you receive any such letter from a manager or management firm employee, and that letter does not contain a disclaimer, please file a UPL complaint against the manager.  This is the only way to stop this practice.  It is a small thing you can do to help yourself and all other people living in an HOA.  If a director writes such a letter, then he risks personal liability for his error since he did not consult an attorney.  If he claims “acting on the advice of the attorney”, demand to see it in writing!  If he does not provide it, then he is not acting in good faith as required of directors of nonprofit corporations.
 
 

Qui Pro Domina Justitia Sequitur 

 (“who prosecutes on behalf of Lady Justice?“, DOJ seal)

 

 
Legal Disclaimer
 
The information contained in this written or electronic communication, and our associated web sites
 and blog, is provided as a service to the Internet community, and does not constitute legal advice.
We try to provide quality information, but we make no claims, promises or guarantees about the
accuracy, completeness, or adequacy of the information contained in or linked to this web site and
its associated sites. As legal advice must be tailored to the specific circumstances of each case, and
laws are constantly changing, nothing provided herein should be used as a substitute for the advice
of competent counsel. No person associated with AHLIS or Citizens for Constitutional Local
Government, Inc. is an attorney nor is employed by an attorney. 
 
 

2010 US Census ignores HOA demographics

With an estimated 20% of the population (based on industry data) residing in homeowners associations,  a percentage higher than either that of Black of Hispanic categories, the demographics of HOAs remains a mystery.  Who lives in homeowners associations?

 

The only hint at HOA demographics comes from the 2007 industry survey on HOA satisfaction, sponsored by the Community Associations Institute (CAI) trade group[i].  This sample of some 709 phone calls revealed a significant difference between the sample and the 2000 US Census data[ii]. 

 

Category HOA Survey US Census
Age 50+ 61% 27%
Education: college + 68% 24%
Minority 11% 25%
Incomes over $50,000 79% 42%

 

This difference can be explained by one of two alternatives.  One is that the sample is biased in order to bring about the most highly favorable results for CAI.  The other is that the sample does reflect the norms of  homeowners associations, and reveals that the HOA population represents a distinct class or subset of American society: the senior, educated, white, well-off segment of America. 

 

The demographics of this survey should be of concern to the policy makers.  If the sample demographics are representative of HOAs, then the claims of HOAs as “affordable housing” should be replaced with the more accurate description, “discriminatory housing.”   Then the public policy that requires only HOA subdivisions for all new housing in an increasing number of towns and cities is discriminatory.  Unless, of course, the above demographics are not representative of homeowner associations.

 

It would seem that the time has come for “the acceptance of a quiet innovation in housing”[iii] to be exposed to the sunlight, and that a more thorough survey of homeowner association demographics is in order.  Who lives in HOAs?  Are HOAs, aided and abetted by local government mandatory HOAs for new housing,  establishing a class division within America?  

 

Notes

[i] As of this writing, all online links, either on the CAI or Zogby sites, to the details of this study are missing. The Jan. 19, 2008 analysis, see n. 2, references this web address: Survey.  A copy of the methodology was downloaded at that time and can be viewed here, http://pvtgov.org/pvtgov/downloads/survey-2007.pdf.

[ii] See Who lives in an HOA? Public officials take notice  (Jan. 2008).

[iii] Taken from the title of the CAI co-funded book, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing. Donald R. Stabile (Greenwood Press 2000).

Government of the people, by the people, for the HOA

 

The following email letter from Mr. Brown to the Arizona legislative leaders reflects his concern about democracy in America.  (For more information on this HOA bill, please see public streets: the battleground for private or public government control).   

hoa constitution
hoa constitution

My dear President Burns, Chairman Tibshraeny, Vice-Chairman Harper, Members of the Senate Government Institutions Committee, Senator Bunch, Representative Barto, Co-Sponsors of HB2153 and Representative Barnes:

“From time to time we read in the newspapers, or hear on the radio, about policies and procedures and practices in the Arizona legislature. Most often that which we read or head is critical of how the legislature goes about its business. Words such as “fair” and “open” and “level playing field” are used, as if to imply that the legislature should operate in a significantly different manner that it does.” Senator Randall Gnant, “From Idea…..To Bill…..To Law, The Legislative Process in Arizona,” February 2000

The Guest Opinion, “Who controls public streets,” Arizona Capitol Times, April 1, 2010, is on-point re the proposed HB2153 legislation as well as the global issues respecting associations’ control of property not owned by an association, associations’ control of the conduct and actions of Arizona citizens clearly not subject to the association’s governing documents and associations’ coveted power and dominion over homeowners subject to the association’s governing documents, the sacrosanct “private contract.”

Association stakeholders opposed to HB2153 regularly blur the lines between their long-held belief in “private contracts” not to be interfered with by federal, state, county and/or municipal governments and certainly not the legislature unless and until it suits the stakeholders and their client associations’ interests as evidenced by associations’ growing reliance on “what can government do for” stakeholders and associations today. (See Community Resource, Issue 1 / 2010, “What Your Local Government Can Do For You,” Community Associations Institute / Central Arizona Chapter, attached)

“Getting a hearing on a bill is a crucial first step for individual citizens, lobbyists, special interest groups and state agencies..in the Senate, bills that receive a hearing have a high likelihood of passing the full Senate. So, while failure to secure a hearing is a virtual disaster for a bill, getting a hearing takes a bill on the longest step towards becoming law.” (Gnant)

Please include HB2153 on the Committee On Government Institutions’ agenda, Consideration of Bills, permitting the peoples’ representatives in the Senate to vote on the bill’s passage as your brethren in the House, the people’s other representatives, did so on February 17, 2010 (43/14/03).

Respectfully,

William M. Brown