Tag: justice

HOA Gestapo tactics — the slippery slope steepens

In California there is the report of a midnight raid on HOA members to forcibly evict them. The Courthouse News Series reports (The Foreclosure From Hell) that

“Nine condo residents claim Taser-toting private security guards burst into their homes at 3 a.m. and assaulted them, forcing them into the street in their underwear, in a foreclosure the residents had never been informed of.” 

The security organization for the HOA and the HOA are being sued.  The complaint alleges, among other things, that

“During this approximate two-hour ordeal, the armed men threatened arrest and incarceration, menaced the plaintiffs with weapons, engaged in intimidation, positioning themselves immediately in front of and/or behind the plaintiffs, glaring at them menacingly and invading the plaintiffs’ space.” 

The plaintiffs seek damages for trespass, extortion, assault and battery, false imprisonment, invasion of privacy, conversion and intentional infliction of emotional distress.

In the highly public Travon murder case in Florida questions of HOA negligence are being raised.   In Arizona, for the 5th year, a bill that  re-asserts that public streets within HOA subdivision territories are regulated by the local government and not the HOA was again defeated.   In Illinois, however, the court did put a stop to HOA security people stopping and detaining people on the roads.

The question before us is:  what are the factors, the causes that lead HOA boards to act in such an uppity, defiant manner against their members and the public, as if they were indeed independent principalities?  The simple answer is,  because they can!  Is it the culture within the HOA that is too similar to the experimental conditions of the Milgram and Stanford Prison experiments? (See Why do people harm others in HOAs?)

Is it the public policy that the HOA must survive at the expense of individual rights and freedoms, with members’ losing the privileges and immunities guaranteed to all citizens?  Is it the pro-HOA laws that do not hold the HOA accountable to the state, that presumes that the HOA can do no wrong?  There are no penalties against HOA law-breakers, but there are plenty of state supported penalties that make HOA attorneys rich and force hardship and the loss of one’s home for trivial fines.

With this sentiment, this bias in our culture and society, HOAs have no restraint on running amuck, and on intentionally running amuck as witnessed here with the Gestapo raid.   I wrote about this dangerous slippery slope path in The public policy of the states with respect to HOAs.  In Legislative protection of HOAs: replacing US organic law with HOA organic law I wrote about the disappearance of the social contract and a return to a state of nature, to anarchy.

It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years . . . . And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature.

 Yes, each day, little by little, more and more such acts that were once unthinkable occur as this country speed us along the slippery slope to disaster.  I’m waiting for the knock on the door.  I have my papers ready. 

Behold the power of the HOA over your private property

Joanne McCarn owns her home, but her homeowners association has taken it over and calls the sheriff’s office if she comes near the property.  What’s more, the Bridgewater Community Association evicted her tenant, changed the locks and moved in its own renter.  “This is not a foreclosed house,” McCarn said. “This is still my house. It’s unfair how much power the HOA has. It’s so surreal to me.”

Homeowners association rents home it doesn’t own

 

Everyone should be aware of the slight-of-hand redefinition of the real estate ownership known as “fee simple.”    Read your deed that states the title to your HOA controlled property.  It commonly says “in fee simple,” where, at the state time and in the same deed, you surrender so much of your rights and interests. And legally without the need to see, or read, or consent to this surrender. Just take your deed with that two line, un-emphasized statement that says, “subject to covenant, conditions and restrictions,” followed by “as may apply” or “if any.” 

This legal real estate form of title/ownership meant an “absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of “fee,” but is used to show the fee (absolute title) is not a “conditional fee” (my emphasis).  So, what does “fee simple” really mean in regard to these gross surrenders of rights and interests in your new HOA controlled home? 

Returning to this nasty incident by the HOA,

In Solomon’s view [an HOA attorney], that doesn’t make it right — or legal. It’s more a measure of how complicated the housing bust has grown.

Judges rely on what rights attorneys tell them their clients are afforded under the law,” Solomon said. “If there’s no attorney on the other side to argue that it’s wrong, the judge most often takes the word of the attorney and grants the motion. Plus, these judges hearing these cases usually are not experts in real estate law.” [Nor HOA law].

 

Solomon and other legal authorities contacted by the Tribune say the eviction may be legal. The reason: McCarn moved a tenant into the house without paying off a lien the association had imposed.  But there are no legal grounds, Solomon said, for the association to change locks and move in another tenant.  The association imposed the lien in 2009, but McCarn said she never learned about it until later, when the association persuaded a court to evict her tenant for nonpayment of the rent. The association had demanded that the tenant stop paying rent to McCarn and pay it instead.

 

Just another “gotcha” when it comes to the powers of HOAs, protected by state public policy.  Just another example of an innocent homeowner being forced to protect her rights by going to court.  And hopefully, as quoted above by attorney Solomon, she brings a competent lawyer with her.

AZ Admin. Law Judge upholds state law over CC&R contract

It is refreshing to see that the Arizona Office of Administrative Hearings decided a complaint that upheld state law over the CC&R contractual agreement.  The ALJ held, “The preponderance of the evidence shows that the Gadsden flag was at some time an official flag of the United State Marine Corp,” thereby upholding ARS 33-1808.  (DBFLS/OAH petition,  Steadman  v. Esquire Village HOA,  No. 11F-H1112004-BFS (April 9, 2012)).  This statute reads,

 

Gadsden Flag

     Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor display of any of the following: 1. The American flag or an official or replica flag of the United States army, navy, air force, marine corps . . . .

 

The HOA argued that “the Architectural Review Committee can regulate aesthetic improvements that can be viewed from the street such as a flagpole and flags flown on it,”  failing to understand the explicit and straight forward wording in the statute, “Notwithstanding any provision in the community documents.”  Or was it the HOA attorney’s lack of understanding.

Furthermore, the HOA obtained an “opinion” from the AZ Legislative Counsel that he believed that the Gadsden flag was not protected under the wording of the statute.  It was rejected as not being legal opinion, nor was there an affidavit presented to the hearing. In apparent desperation, the HOA testified that in the CAI lobbyist law firm and Carpenter Hazlewood press release, Carpenter Hazlewood doubted that the Gadsden flag was protected.  Also dismissed.

The HOA’s management firm even argued that the flag was not explicitly mentioned in the statute, so therefore it was not protected.  Another instance of narrow readings and failure to accept the fact that there are laws and doctrines outside the planned community act to which HOAs are bound to obey.

Yes, no wonder why the CAI layers have fought so hard to squash OAH adjudication of HOA disputes.

 

Reference

KY legislators allow HOA private contract to determine public policy

FL supreme court upholds private contract over constitution

Does civil government rule or does it submit to private HOA groups?

The power of private HOA contracts, and other “voices of the people”

Legislative protection of HOAs: replacing US organic law with HOA organic law

Organic law is the fundamental basis of a government. The Homes Association Handbook and UCIOA constitute, in my view, the organic law for HOA governed planned communities. In contrast, the U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi). The organic laws of HOA-Land are replacing the organic laws of the US as applied to local government.

 

Arizona protectionism

How many times have homeowners sought justice before the legislature only to be told that they have recourse to remedy any slights by “voting the bums out”? Yet, when the time came to put some teeth into fair elections laws for HOAs, laws that would allow a fundamental function of a democratic government to work properly, the Arizona Legislature answered with a resounding NO! (21 – 9 final Senate vote on HB 2160). Where is the justice?  And justice is the hallmark of a legitimate government.

 The Arizona Legislature, for the fourth or fifth year, obstinately refused to tell HOAs hands off regulating public streets, even with respect to parking cars protected by municipal ordinances. Maricopa County Sheriff Arpaio, who on numerous occasions vehemently stated that he upholds all the laws, rejected policing public streets in HOA-Lands. SB 1113 died, and HB 2030 is sitting in limbo waiting for a floor vote for final acceptance.

 As of this date, only 2 bills of the 19 HOA bills were sent to the Governor, and one was vetoed as “too confusing” for the HOA board to deal with. HB 2484, which was amended by the conference committee to make it more HOA attorney friendly, which means more homeowner unfriendly, is now a “NO” bill.  Of the 5 Arizona HOA bills in this session that provided for penalties against the HOA governments, none were found acceptable: HB 2160, HB 2484/SB 1468, HB 2455, HB 2731, and SB 1240.

 

The HOA can do no wrong

 It is quite evident that HOAs are de facto state-protected “sanctuaries” — de facto independent principalities by the failure of legislatures to pass enforcement bills against HOA board violators. The HOA is treated by the legislature like the sovereigns and kings of long ago – the HOA board can do no wrong, no need for checks and balances, and no need for accountability. It appears that the HOA boards have become Godlike in the eyes of the legislators!

And everywhere the public interest people, the legal-academic aristocrats and current day Philosopher Kings, who clamor for individual and private property rights see no evil, hear no evil, speak no evil. It appears that, “unaccountable HOA government is better than public government with its protections,” has become their dogmatic principle. The Goldwater Institute promotes local government by means of restrictive covenants. “A model law authorizing a transition from government-controlled local zoning and planning regulations to private restrictive covenants.” (See the 2011 report, Model Legislation, Decentralized Land Use Regulation Act).

 

The social contract is disappearing

 It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years ago — that loose collection of colonies that our Forefathers rejected as unworkable. And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature. The Social Contract (“Man was born free, and he is everywhere in chains”) of Rousseau and John Locke has been slowly falling by the wayside, little by little.

The social contract theory of government maintains that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept corresponding duties to protect themselves and one another from violence and other kinds of harm. The US Constitution and all state constitutions are examples of the social contract theory, as opposed to the various HOA statutory Acts that are based on the Uniform Common Interest Act (UCIOA). UCIOA has served for state laws in a handful of states, while other states have modified it somewhat and still others used it as a basis for their statutes.

 The initial UCIOA of 1984, revised in 2008 with a questionable separate and detachable model Bill of Rights Act, flowed from The Homes Association Handbook of 1964, that joint effort by FHA, ULI (formerly the National Real Estate Foundation), and NAHB. (The Handbook was prepared with the “collaboration” of such entities as, the Veterans Administration, The Office of Civil Defense, and the Public Health Service).

 

 

How did it happen?

 Milton Mayer best describes what is happening in America when he sought answers as to why the good, average people of Germany let the Nazi Party take control prior to WWII. His words are applicable to today’s HOA-Land.  In 1995, in They Thought They Were Free, he wrote,

 

What happened was the gradual habituation of the people, little by little . . . . This separation of the government from people, this widening of the gap, took place so gradually and insensibly, each step disguised. . . . [Mayer believed that the good people went along] in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.

Welcome to the New America of HOA-Land

 

And you’d better believe it!

AZ Gov. finds bill too confusing for HOA boards and managers

AZ Gov. Brewer found HB 2513 too confusing for HOA board and directors, so she vetoed the bill.

The effect of this bill is unclear as to what is permitted or prohibited in terms of renting and the information to be provided to an association regarding an owner’s renter. This would result in confusion for association boards and property management companies who are legally responsible for managing communities.

HB 2513 would have added a new section to the condo and HOA statutes, ARS 33-1260.01 and 33-1806.01. Subsections A an B seem rather straight forward — deal with the designated agent. What’s the problem? Subsection C requires certain information on the renter to be given to the HOA, such as names, number in family, car license plates, and ages if in an age restricted community. No problem here either; rather straight forward again.

Subsection D allows for a measly $25 transfer fee, as compared to fees of $500 – $1,200 on a sale. It also prohibited any “new” types of fines for renters. H’mmmm. Restrictions on the HOA?

Now we come to the last subsection, E. It prohibits the HOA from any of the following:

1. copies of the rental agreement, credit report or other personal information.

2. having the renter sign a waiver of or limitation on his rights due process rights.

The bill is silent on any guarantee that the renter has the same rights and access to the amenities as an owner, except voting rights. This is only fair as it would balance the playing field if the renter is subject to fines. But, the bill is silent on this renter protection.

I AM confused about what’s so confusing, or was it really another issue, one of again protecting the HOA by prohibiting an invasion of renter privacy — some would say it would have prevented HOA snooping. To understand what appears to be happening here, let’s look at ARS 33-1805, HOA record access by members, and see the degree to which the HOA is protecting itself using statutes that allow for a lack of transparency.

Subsection (B) contains restrictions on member access to HOA records that includes,

“4. Personal, health or financial records of an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

“5. Records relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.”

This is clearly protective of the HOA, and its employees and officials acting on behalf of the HOA, and is apparently not too confusing or too complicated for the HOA directors or managers. I mean, don’t they frequently use their attorneys to defend their views of the laws?

So, what’s the real story Governor Brewer? Why are you denying a just and fair procedure to protect the individual rights and freedoms of residents and owners, while at the same time having no issue with protecting the HOA from sunshine laws and transparency? Something is wrong here! It’s plain and simple that your veto is just another act consistent with the Arizona public policy of protecting HOAs from its members who “pay the freight.”