Tag: justice

The HOA apathy affliction: a political dynamic

Everyone is unhappy with the pronounced apathy among those living in HOA-Land, where the lack of homeowner protections works for the power-elite, the board and its attorney.  CAI has complained many times about apathy when homeowners complain about the conduct of their boards.  CAI also complains how it can’t make “necessary” changes to the CC&Rs to bring them current with the laws.

Because of this apathy, homeowner advocates who are aware of the inequities of their HOA predicament cannot get their good neighbors — those who pay their dues and obey the rules — to support them in their efforts to obtain justice for all members. 

A recent approach being used by CAI in Arizona is to call for the complete rewrite of the CC&Rs to make the HOA a better place, the ostentatious reason, while including even more oppressive covenants and covenants that are highly favorable to the HOA attorney and its income stream.  In order to accomplish this, recourse is made to playing loosey-goosey with the strict Arizona laws for amending the CC&Rs. 

The law requires a written explanation of each and every change being made, which can be cumbersome, but the law is there to protect the homeowners. It’s a cost of making sweeping amendments all at once.  But the homeowners say and do nothing except to sign away their rights as good team players.

The political impact of these sweeping changes is made real by the apathy of the majority of the homeowners to agree to whatever the board proposes with the blessings of the HOA attorney, who wrote the revised CC&RS.  They can affect your pocketbook, your property rights, and your already weak voting rights.

A common change, minority control, was defeated in the 2011 legislative session that permitted minority control of the amendment process, thereby giving the political machine in power basically complete control of the HOA and over its apathetic members.  This political tactic relies on homeowner apathy to succeed.  It removes a vote of all the members and the long held doctrine of a supermajority vote, usually 67%, and replaces it with a majority vote of only those voting. 

Even with a 50% quorum as little as a 25% approval can affect the rights of ALL members, whether they agree or not.  And with the pro-HOA laws and unconscionable adhesion CC&Rs contract, the members will be just pawns in the hands of the board – just pay your dues and shut up, or else!

Homeowner apathy is a serious affliction in HOA-Land.  Under the current environment, it is the homeowner who must stand up and fight for his rights, in the HOA and at the legislature to change the laws.

Read about the Fourth Amendment to the Apache Wells CC&Rs, one real example. Just scroll down.

Insurer denies HOA coverage in Trayvon death

This position by the insurer points out that the HOA board is NOT 100% protected for wrongful acts.  Especially for those that are grossly negligent or intentional acts.

Homeowners should step outside the HOA attorney greated box that implies that the HOA can do no wrong, and remember that laws other than those HOA or Condo Acts  also apply to HOAs:  Restatement of Servitudes, tort law, and corporation law.

From the COURTHOUSE NEWS SERVICE Aug. 6, 2012

 

ORLANDO (CN) – Traveler’s Insurance sued Trayvon Martin’s mother and The Retreat at Twin Lakes Homeowners’ Association, where her son was killed, claiming it has no responsibility to defend the HOA or cover the teenager’s death.

Travelers Casualty and Surety Company of America sued The Retreat at Twin Lakes Homeowners’ Association and Sybrina Fulton, as representative of her son’s estate, in Federal Court.

The Retreat at Twin Lakes’ Neighborhood Watch captain George Zimmerman shot Trayvon Martin to death on Feb. 26. The shooting set off a national furor, as police initially let Martin’s killer, George Zimmerman, go free after questioning him. Martin was black; Zimmerman is not.

Travelers claims that on March 30, it issued the HOA a “claims-made, nonprofit management and organization liability insurance policy.

Fulton then sought monetary damages against the HOA’s policy with Travelers for her son’s death.

Travelers claims it is not liable because of the policy’s “wrongful act” exclusion.

Travelers claims the exclusion states:

“‘The insurer shall not liable to make any payment for loss in connection with any claim made against any of its insureds: 1) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving bodily injury, sickness, mental anguish, emotional distress, disease or death of a person, provided that this exclusion shall not apply to allegations of mental anguish or emotional distress if an only to the extent that such allegations are made as part of a claim for wrongful employment practices.’

“Travelers is in doubt of its rights under the policy and, by this petition, seeks a declaration of its rights and obligations with respect to the claim and demand made by Fulton upon Travelers and The Retreat at Twin Lakes as a result of the fatal shooting or Martin, and a finding by the court that under the above-referenced policy of insurance Travelers has no duty to indemnify or defend The Retreat at Twin Lakes in connection with the Fulton claim because coverage is precluded by the above exclusion.”

Zimmerman was rereleased on $1 million bond in August his first bond of $150,000 was revoked.

State Judge Kenneth Lester ordered Zimmerman back to jail after finding that Zimmerman and his wife Shellie misled the court about how much money they had.

Shellie Zimmerman was arrested and charged with perjury days later, and released on a $1,000 bond. She was to be arraigned July 31 but her attorney Kelly Sims filed a written not guilty plea.

George Zimmerman has pleaded not guilty to second-degree murder and claimed self-defense under Florida’s so-called “stand your ground law.”

Judge Lester last week refused to recuse himself after Zimmerman’s attorney Mark O’Mara asked him to. O’Mara accused Lest of making “gratuitous, disparaging remarks” when he set Zimmerman’s second bond, according to wire reports. Lester denied the motion as “legally insufficient.”

Insurer Says It Should Not Have to Pay for Trayvon Martin’s Death

HOA foreclosure ratio of 36 times violates the 14th Amendment against cruel and unusual punishment

Matt Tomsic wrote an important article in the Charleston Region Business Review on HOA foreclosures with some revealing statistics.  SPECIAL REPORT: YOUR HOME, THEIR RULES.  For example, 68% of the foreclosures were for $5,000 or less in Charleston County, SC.

I wrote the author for some additional statistics. What he had available was just median values for debt owed the HOA and home value, which were $4,500 and $160,000, respectively.

 

That amounts to a punishment of 36 times the debt owed. The US Supreme Court in State Farm v. Campbell, 538 U.S. 408 (2003) set criteria of punitive damages exceeding 10 times actual damages constitutes a violation of the 14th Amendment against cruel and unusual punishment. In the jargon of today, HOA foreclosure is the iconic instance of cruel and unusual punishment. And the HOA did not advance any hard cash like a bank to justify foreclosure rights.

 

BUT, your elected representatives see no evil and continue to support the real estate industry’s business interests, with the people being the pawns and “marks” in the con game.

Restoring American principles and way of life in HOA regimes

This is another HOA Enlightenment Movement article on speaking frankly and openly about HOA abuse, about common sense and reasonableness, about the rejection of the HOA attorney insistence on CC&Rs enforcement uber alles, and about legal decisions concerning the rights, freedoms, privileges and immunities of those living in HOAs who have not surrendered their US citizenship.  The fact that the media are publishing more and more about “the Truth in HOAs” signals the twilight of the unspoken alliance of  “No Negatives About HOAs.”  It’s about time!

I congratulate the author, Eve Samples, for spreading the word about this event where it cost an HOA $250,000 in legal fees over a homeowner’s screen doors.  I congratulate Martin County, FL Judge Roberts for her perspective that returns America to the people and not defend these usurper HOA private governments. I congratulate TCPalm for publishing this return to sanity incident.

Judge Roberts held that the HOA was

championing the letter over the spirit, evasion over the truth and quibbling over common sense. . . . The truth, despite evasive answers to the contrary, is that he [the homeowner] was never going to get approval, and rather than deal with that issue directly, the petitioner [HOA] chose subterfuge to create the impossibility.

The HOA president, a True Believer, said she would not change her attitude.   “[I would change] Nothing, to be honest with you, because the violation was there.” The new president, a Reformer, believes that,

it might be reasonable to ask residents to vote on legal action that exceeds a certain dollar amount. . . .  to have litigation reviewed by experts other than the association’s attorneys, to ‘see if the association’s position really is well founded.’ 

(This is a direct reference to the rules of civil court, generally R 11(a) requiring the attorney to make a reasonable inquiry into the facts.)

Those seeking justice and fair play in their HOA should spread this Commentary to all other interested parties to help them see the light.  We all are Americans living under the US Constitution, and must be subject to the equal application of the laws, not to special real estate laws.

the age of HOA enlightenment is coming?

I’m beginning to see more and more evidence of enlightenment by pro-HOA supporters. The dogmatic insistence on enforcing the CC&Rs is falling away to a proper concern for the principles of democratic government and the fair and just treatment of homeowners. The strict view of the covenants is weakening.   There is a growing awareness that HOA boards are governed by other laws and ethical and moral considerations, if indeed HOA regimes are to meet the CAI propaganda of vibrant and harmonious communities.

The Berding-Weil blog, Condo-issues.com (California), shows recent evidence of this enlightenment as is recent posts introduce a degree of reality of events. Now, Donna DiMaggio Berger in Florida reminds boards of good government practices with,

Lastly, when you poll your community members and they voice an opinion on a proposed course of action, boards who disregard that input do so at their own peril. This is not to suggest that the membership must be polled on every course of action, particularly on routine maintenance which is one of a board’s main functions, but if you ask for input on discretionary spending it’s probably best to heed the message your members delivered.

 Avoiding the appearance of self interest as an association director

 Wow! What a thought — poll your community! Why didn’t I think of that very democratic tool? As claimed, the HOA board is the representative of the owner-members. Gee, asking for input is a radical suggestion for an undemocratic corporate form of government. Long overdue as HOA regimes are de facto political governments. Congratulations Donna! Excellent message for HOA boards as HOA member servants.

Now, Mr. Berding, why didn’t you address the recognition of the HOA de facto government in your “Reform Community Associations?” post? After all, you do hold a PhD in Government from the prestigious Claremont School. Your message was that HOAs were too big to fail, and we all have to live with the way things are.

 Every year the California legislature, and the legislatures of other states tinker with the enabling statutes for homeowner’s associations, but these efforts are usually paternalistic, constituent-favoring amendments that do little or nothing to solve the fundamental problems.

 How about the simple amendment that would go a long way to solving problems by restoring the equal application of the laws and due process protections of the 14th Amendment to homeowners, as it should be, and create a unified country rather than a myriad of independent HOA principalities?

The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.  

HOA member Declaration of US and State citizenship.