Tag: justice

HOA willful blindness

An interesting aspect of the law came to my attention unexpectedly arising from the Trump lawsuits: willful blindness. This post takes a broader view of the HOA-Land legalities.

“Willful blindness, also known as conscious avoidance, is a judicially-made doctrine that expands the definition of knowledge to include closing one’s eyes to the high probability a fact exists.” ( The Supreme Court’s Willful Blindness Doctrine Opens the Door to More Wrongful Criminal Convictions | The Heritage Foundation).

The mens rea fundamental principle to uphold a wrongful act  required actual knowledge of  the wrongdoing by the accused, and can be found quite commonly in the statutes. So, evidence of actual knowledge had to be proven. This principle, although it had good intentions, failed to address the question of the accused lying, “I didn’t know I violated the law.  Honestly!”

But what if the evidence clearly shows that it had to be obvious to any reasonable person that the law was being broken?  What then? In the name of justice, the courts accepted the willful blindness doctrine. “C’mon, everybody knows that the act was a violation of the law” and cannot be denied by claiming dumb ignorance.

“the prosecution must show that the defendant was aware of a high probability of the fact in question but deliberately avoided confirming it. The prosecution must prove that the defendant was subjectively aware of the risk involved and that he or she consciously avoided learning about it.” (Willful Blindness Law and Legal Definition | USLegal, Inc.).

HOA willful blindness affirmative defense

I am sure most readers are aware of alleged lies made by the HOA, its managers, and directors, including its lawyers that come as a surprise to the average owner. “They’re lying, they’re lying,” the homeowner shouts to no avail. What to do? Take charge now that you are informed about the law, and even educate your attorney likewise, to raise an affirmative defense.  You charge the HOA with willful blindness as its obvious it violated the law by knowingly turning a blind eye to its actions.  Example, not reading the obvious applicable governing documents or state laws on the issue at hand.

“An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts. The party raising the affirmative defense has the burden of proof on establishing that it applies.” (affirmative defense | Wex | US Law | LII / Legal Information Institute (cornell.edu)).

Please take note on how powerful this doctrine is in holding the board of directors and managers to the wire when acting outside the law. It will put stop to their outright falsehoods and lies, and hold then to knowing the law and governing documents. It will require their attorneys to make the law and governing documents clear to the board.

What makes for a good HOA member attorney??

First, what indeed does a lawyer  do?   There are family, corporate, injury, property, constitutional, etc. lawyers with  specialty in that  particular area. Of course, we see lawyers  saying they can represent you in many areas.  Ahem! Second, there is the level of expertise and competence in their chosen field. 

Now a homeowner needs to find a litigation attorney with expertise in the courts and lawsuits. You need a litigation attorney when dealing with a  rogue board that ignores the law and governing documents. (Please don’t be afraid to call it like it is).  Sitting down in a delusional kumbaya scenario is laughable to a rogue board (not aloud of course).  But going to court introduces another important element that has a direct bearing on the judge’s decision:  the specifics of the relevant HOA, contract, and property laws and precedent — decisions in prior related cases. And don’t forget the governing documents.

And guess who has the most credibility, as they frequently remind everyone, but good ol’ CAI.  And the local CAI attorney has the benefit of CAI Central’s collection, distribution, and advice on HOA related cases across the country.  So, which way will the judge lean when no one offers opposing arguments?  Towards the experts in HOA-Land law or towards the stumbling local run of the mill attorney?  Don’t miss understand me, I’ve witnessed some damn good, highly paid attorneys fall by the wayside.

Therefore, what must be done to achieve a balance and justice for you, the homeowner under the gun? Obviously, the attorneys must be educated, and those already educated and knowledgeable must speak out.  Where does it begin??  In the law schools across the country that have played their part by errors of omission  in failing to educate budding lawyers going forth in ignorance of HOA injustices.  

HOA social media misguided expectations

Way back when, in the beginnings of time when the internet was first being used to contact people — remember email lists — a CAI poster on its page recognized the fact that CAI could not control the internet, like presumably with the news media.  And thank goodness!

Given all the above, social media is inundated with homeowners facing serious problems with their HOA  and who cry out for help and assistance, but discover no solution to their complaints.  Yes, there’s plenty of good advice and suggestions, links to state laws and cases, etc.  The truth of the matter is that it is they, the poster, who must take action to resolve his grievances following the leads presented on the social media groups.

I’ve found that a good many of these complaints do not arise from a wrongful act by the HOA or a violation of the law. They are simply an exercise in the broad discretionary powers granted to the BOD in the governing documents; the homeowner just doesn’t like them. Nothing can be done except try to change the make up of the board, which requires a specified number of neighbors to join in. Fact chance!  Do they charge their town council with wrongdoing when they disagree with a position taken by the council?  Not usually.

While homeowners airing their problems on the internet may get   a large degree of sympathy — poor guy, they dun me wrong, unbelievable, etc. — nothing is accomplished when dealing with rogue HOAs and directors. By definition, the law and governing documents mean nothing to them, and they know that some 80+% will not take effective action – sue the bastards! And the numerous consumer protection – regulation agencies are ineffective lacking in punitive actions. The HOA holds all the aces; you lose!

The bottom line is to lobby the legislature to adopt 1)  substantive laws that protect your individual rights and freedoms supposedly guaranteed by the Constitution, 2) fair elections procedures to level the playing field for the democratic functioning of the HOA (how about ½ vote per lot if the owner resides less than 7 months), 3) attainable HOA enforcement procedures that effectively serve as a punishment  and as a detriment to further wrongful conduct, as exists with misdemeanors charges in the public domain, and 4) prohibit the cruel and unusual punishment allowed in the current  homeowner losers all foreclosure procedures.

All social media groups must make these reforms a top priority and inform the complaining homeowner that there is no push button instant solution to the ills of HOAs in our society.  We can only  hope that the majority of owners will finally realize that they are up the creek without a paddle and get angry enough to get involved wholeheartedly. This should be objective for all HOA social media groups.

Homeowner price for justice and enforcement

Stan Hrincevich, President of the Coloradohoaforum.com, wrote a YourHub, Denver Post opinion on May 4th, HOA homeowner’s rights and voting rights of yesteryear.  Stan severely criticizes HOA justice for homeowners and the inequality of the financial costs to obtain justice.

“You have the right to vote but now you have to pay a poll tax and can’t afford to vote. . . . However, this seemingly fair mode of governance ensuring the rights of the homeowner and HOA is as much an illusion as ensuring voting rights in the late 1800s accompanied by the poll tax. HOA justice for homeowners is a pay-to-play enforcement system. If one has deep financial pockets, time, and legal resources, one can pursue one’s rights under their HOA governing documents. Others without such resources cannot.”

He recommends non-judicial hearings which, I assume, would include stronger enforcement of the decisions and the law than currently today in Colorado and in every other state. Implied is a reduced cost to homeowners  – the removal of the present day poll tax. 

I’ve also argued that the current status of HOA justice has the same effect as if it were a poll tax (made unlawful by LBJ in 1964)[1]. But the real obstacle to homeowner justice is the lack of state enforcement of HOA board violations of the law and the governing documents.  The vast majority of the reform laws rely on the good will of the HOA board and its attorneys to act in good faith with the intent of the law.  However, the conduct and acts of the HOAs and their attorneys has demonstrated that this reliance is unfounded. They should be held accountable as if they were municipal government employees.

“If there is no penalty [for] disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.”    (Alexander Hamilton, Federalist #15)

“Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties, or punishments for violations of state laws or the governing documents?  Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.”[2]

I strongly agree with Stan, reform can only come from the legislature enacting just laws and removing pro-HOA laws.

Notes.

  1. Poll Tax postings on HOA Constitutional Government. To say that a homeowner can go to court for a redress of grievances would be like saying that there was nothing wrong with the 1950s Poll Tax abomination, used as an effective, legal at the time, devise to stop voter registrations. (April 2010 Letter to NC House Select HOA Committee); In the late 1950s the Southern states enacted a Poll Tax and instituted certain “tests” in order for citizens to be eligible to register to vote.  No federal or state laws were violated, since the states were permitted to determine the methods for registering citizens, so long as it was not based on race (15th Amendment).  Of course, the tax was set at a level very few Blacks could afford to pay (Dec. 2008, Goldwater Institute: separate and unequal constitutions for HOAs);  Civil action amounts to a bar against justice much as the imposition of poll tax in the South in the 1950s used to prevent blacks from registering to vote. Justice for the average homeowner cannot be had a price which he cannot afford while the association is allowed to use member dues to hire a lawyer (June 2006, Where’s California’s Homeowners Bill of Rights?

2.      See HOA-Land Nation “Did you know?” Part 2 (2019).

The need to regulate CAI monopoly

To answer to the question I raised, “Is CAI a coercive HOA monopoly?,” required further research and analysis, which resulted in  finding extensive and strong evidence, gathered from over the years, that CAI is definitely acting in violation of the anti-trust statutes; steps need to be taken to break up the monopoly.  Below are my recommendations to regulate CAI’s activities to allow for the voice of others to be heard, especially from owners of HOA homes who suffer under the monopoly.

A.       Regulations on CAI monopolistic activities

1.       CAI to cease all references and implications that it represents HOAs before the legislature, all government bodies, before the courts and including amicus curiae briefs without express consent to do so;

2.      Require CAI to state that it is a business trade nonprofit, explicitly a 501(c)6 and not an educational entity;

3.      Inform readers that it cannot have HOAs as members since HOAs are consumers of the services provided by the trade group members;

4.      It is actively engaged in lobbying state legislatures on bills favorable to the HOA  and not necessarily to the membership;

5.      Inform owners and the public in general that its attorney members represent the HOA personified by the Board of Directors and not the member.

B.    Regulations on HOA activities in support of CAI monopoly

1.       Similar to representing employees in bargaining with management, propose federal laws that permit and protect HOA members to organize its membership to bargain in good faith for amendments to the governing documents and Rules changes;

2.      Propose legislation that allows for the creation and protection of a national HOA Homeowners Coalition, similar in intent as the National Labor Relations Board (NLRB);

3.      To restrict the HOA from interference with the newly established  organized national and state  member entities;

4.      Quarterly inform the membership of the number of directors, officers, managers, and attorneys who are members of CAI;

5.      Publish the total annual amount of spending for CAI dues paid for any HOA members, donations, other fees, and expenditures paid for by the HOA;

6.      Inform the membership that all communications with their attorney are not exempt from disclosure by state law,

7.      and all communications with the HOA attorney constitutes corporate documents that are accessible to the members, unless explicitly exempted under  “Pending or contemplated litigation” apply;

8.     The CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, “The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.”