Tag: justice

Understanding deference to HOA boards and overturning bad precedents

A recent California case, Affan v. Portofino Cove HOA, highlights several important aspects of legal precedent and the judicial deference doctrine that all advocates must understand. First, in California, as applied to maintenance decisions only, the court in Lamden v. La Jolla made a reasonable clarification of the business judgment rule and established the “judicial deference” doctrine.

This court ruled:

It is important to note the narrow scope of the Lamden rule. It is a rule of deference to the reasoned decisionmaking of homeowners association boards concerning ordinary maintenance. It does not create a blanket immunity for all the decisions and actions of a homeowners association. The Supreme Court’s precise articulation of the rule makes clear that the rule of deference applies only when a homeowner sues an association over a maintenance decision that meets the enumerated criteria.

The Lamden opinion made clear, however, that the rule applies only in limited circumstances. The court described those specific circumstances as follows: “Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise.”

You must understand the ruling, the courts reasoning, and the criteria that make for a valid defense by the HOA, such as, “duly constituted board”, “reasonable investigation”, “in good faith and in the best interests of the community”, “exercises its discretion . . . within . . . its authority”. And the Court added, “The judicial deference doctrine does not shield an association from liability for ignoring problems; instead, it protects the Association’s good faith decisions to maintain and repair common areas.” (emphasis added).

The court in Affan also removed the managers from protection under this defense since they are not an HOA.

Second, the Affan court clearly found fault with the trial court’s conclusion made without substantial evidence, like a dicta (opinions by authority without any foundation being supplied, as found in too many decisions favoring HOAs). “The trial court never decided, based on the evidence . . . . Instead, the court simply concluded as a matter of law, ‘based upon Lamden,’ that defendants were not liable for negligence . . . “ The court overruled the trial court and required a decision based on evidence.

Third, the Affan court illustrates out how the Lamden court overruled the business judgment rule and established the ‘judicial deference” rule, rejecting precedent in the name of justice and fairness. Unjust and unfair precedents favoring the HOA can be and must be overturned!

Independent tribunal adjudication of HOA disputes in AZ held unconstitutional

An Arizona appellate court declared that the independent tribunal adjudication of HOA disputes by the Off. of Admin. Hearings was unconstitutional. After four attempts, the Arizona CAI law firm of Carpenter Hazlewood Delgado & Wood had finally obtained its long sought victory. (See Gelb v. Casa Contenta HOA, CA-CV 09-0744, Ariz. App. Div. 1, Oct. 28, 2010).

If you followed my time line in the Merrit case (2008), Carpenter was desperately seeking to get OAH declared unconstitutional.  It started with Brown v, Terravita, but no decision was made.  Next followed Waugaman where Judge Downie decided it was unconstitutional, but applied the decision only to the HOA at issue.  Along came Merrit v. Phoenix Townhouses and a decision was quickly made to take the case up on the constitutionality question, wherein Carpenter sought the Downie ruling to be applied to ALL HOAs.  However, Merrit got out of the HOA before the appeal was made, making it a moot question without a concrete issue. However, the decision was not challenged except by me, and I was snubbed and denied any further filings in the case. (See The State of Arizona will not protect buyers of HOA homes! for the case study and court filings.)

At the same time as Merrit, perhaps Carpenter realizing this serious problem of standing to sue, raises the constitutionality question in Gelb at the superior court trial level (see ¶ 6) – just in case.  This was in Aug 2008, at the time Merrit was going on.  There was really nothing new in the Gelb decision as it reads from both Cactus Wren and Hancock, like with Downie in Waugaman, except the slap at the legislature trying to get around the courts that was made by Downie is missing.

 Question:    The HOA had won at the Office of Administrative Hearings.  Gelb was contesting the decision.  Why on earth would the HOA’s attorney challenge the constitutionality of the decision, which upon a win, would invalidate the OAH decision in favor of his client, the HOA????  Who was Carpenter working for????

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). 
  
 

 

HOA Syndrome reaction: you knew what you were getting into

Professor Gary Solomon held his seminar describing a collection of physical and emotional disorders collective named, the HOA Syndrome.i In the Las Vegas FOX5 News coverage of the eventii, Solomon said “dealing with a homeowners association is enough to cause physical and emotional harm, including stress, anger, fear and paranoia.” He added, “Harass the neighbors enough, keep them in line and set them up with fine after fine after fine.”

It may be a surprie to some, but this is not new stuff. Viewing these same symptoms from a legal standpoint, Donie Vanitizian, JD, wrote about Post Traumatic Stress Disorder (PTSD) in her 2002 book, Villa Appalling!iii Part II of this 519 page book is devoted to these issues and the causes of these issues. Examples include:

“Toxic Turmoil – “Because there is no viable means for homeowners to express their frustrations with the conditions under which they are forced to live, they are plagued with acute stress. . . . With no government agency interested in their plight or the problems created by these developments in general, homeowners are left to their own devices.” (p. 225).

 Vanitizian goes on to say that, Homeowners very foolishly trust that board members automatically have a ‘conscience.’ They don’t. Homeowners blindly look to the association as a ‘figurehead’ that somehow oversees that justice and truth prevail. It doesn’t.” (p. 233).

As expected, denials came from association managers who are at the heart of the HOA Syndrome, as HOA boards defer the operation of the HOA to these persons. In a statement by one manager, speaking about the homeowners, we see the truth of the matter when the manager states, “Homeowners shouldn’t complain because they knew what they were buying into. You know what the expectations are.”  This a frank admission of the oppression and intimidation caused by HOAs that produce anxiety, fear, emotional stress, and the obvious loss of one’s home and financial conditions. Does this person really believe that Americans are demented and masochistic, relishing injuries to be inflicted upon them? And freely, openly, and willing accept these conditions while giving their home as collateral to the survival of the HOA, and forgoing any semblance of due process protections for the greater glory of the HOA? Really!

I ask this manager and all managers, especially those trained by the national HOA “educator” Community Associations Institute, CAI, “How come you by this falsehood?” This attitude reflects a “You’re damn right we consider the harsh, unjust strict enforcement of arbitrary rules as the way of life in an HOA.” Most of these so-called professionals do not understand the origins and intentions of the profit-seeking individuals who created this legal scheme, where these authoritarian and draconian methods were necessary for the survival of this new, untried approach to housing in 1964. And is still carried forward today where state legislators see no evils with authoritarian, private governments protected by state legislation — no enforcement by means of penalties for HOA board violations, but the homeowner can lose everything — and operating outside constitutional protections. The HOA, for some unstated government interest, must survive and the Constitution can be denied when necessary!

So, what do HOA boards and managers have to fear if they are unethical, violate state laws, and are grossly unjust and arbitrary in their dealings with their members? A slap on the wrist, maybe, if the homeowner is principled enough to spend his time and money just to get the HOA to do what it’s supposed to do. Apparently, our government doesn’t think that the compliance by private government HOAs with their statutory and contractual obligations is not a matter of general public concern. Apparently, they, too, believe in a masochistic and demented American population who cherish living under such conditions and need no protections.

Welcome to the New America of HOA-Lands.iv


References

 i  See “Psychologist defines the HOA Syndrome caused by oppressive HOAs”, HOA Constitutional Government, October 7, 2010.

ii  See “Professor: Homeowners Get Ill From HOAs”, Fox5 News, Las Vegas, October 1, 2010.

iii  Villa Appalling! – Destroying the Myth of Affordable Community Living, Donie Vanitizian and Stephen Glassman (Villa Appalling Publishing, Inc 2002).

iv  See Understanding the New America of HOA-Land, George K. Staropoli (StarMan Publishing 2010).