Tag: law

Exchange with Ward Luca on HOA legitimacy and legislative reforms

New comment on Ward Lucas & The HOA Hell Blog

See complete exchange at Homeowners Claim HOA President Abuses Power

pvtgov:

What homeowners don’t realize is that they are at the mercy of total strangers who are their neighbors in an HOA. In order to make the HOA concept work, and to make them appealable to the masses, HOA officers and boards were given a free pass. No checks and balances and no state imposed meaningful […]

Ward Lucas:

Nobody in the world crystallizes the problem better than you do, George. With Las Vegas totally collapsing, what plan would you submit to the Governor or Legislature there, and what plan would work with every state? And do you believe, as I do, that the entire national HOA structure is corrupt?

HOA member Declaration of US and State citizenship

 I am proposing that the following be  urged as a bill in your state, which requires a mandatory statement of HOA member citizenship. (Revised August 1, 2015).

Declaration of US and State citizenship

With the understanding that the association, as a private entity and not a subdivision of the state, and as a de facto but unrecognized private government, is not subject to the restrictions and prohibitions of the Fourteenth Amendment to the US Constitution that otherwise protects the rights of the people against actions by public government entities;

and that the governing documents in all legal practicality serve as the subdivision’s constitution, taking precedence over state laws and over the state and US Constitutions unless specifically denied by any such laws or legal precedence;

Therefore, the members of the association, having not waived or surrendered their rights, freedoms, privileges and immunities as citizens of the United States under Section 1 of the Fourteenth Amendment, and as citizens of the state within which they reside, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, or be amended to comply,

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.

Furthermore, any governing documents of an association not in compliance with the above shall be deemed amended to be in compliance, and notwithstanding the provisions of any law to the contrary, a homeowners’ association shall be deemed to have amended its governing documents to be in compliance.

Why did the judge allow seizure of HOA member’s home for rent payments?

In continuing my mission as a homeowner rights advocate and activist, rather than taking the politically correct stance of “one of the boys”  and we are all in this together kumbaya, allow me to dig a little deeper into the Florida HOA takeover of a homeowner’ home.  (See Behold the power of the HOA over your private property).

My thanks to Florida attorney Jean Winters’ who directs her blog readers’ to the Florida law in question, FS 720.3085.  Another statute that reflects a pro-HOA public policy.  (Does F.S. 720.3085 allow an HOA to take possession of a homeowner’s home and bar her from her own property? )   

Winters’ rightfully questions the judge’s order to grant HOA possession of the member’s  property, which was most likely sought by the HOA in its “prayer for relief” section of  its complaint.  It is important to understand the driving force behind many HOA actions.  Solomon, another Florida attorney, commented on this incident (quoted in Behold the Power above),

“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].

Winters’ asks,

What statute or provision in the Declaration of Covenants permits an HOA in this situation to rent or act as the owner without title to the property? What gives the HOA the right to threaten the lawful owner (and her attorney) with trespass and to bar her from access to her own property without a foreclosure proceeding?

First, subsection FS 720.3085(8)(a)(1), dealing only with the right to collect rent payments, requires a notice be sent, which was not done.  Furthermore, (8)(d) allows for eviction of the tenant only if payments are not made, but explicitly denies bona fide landlord rights to the HOA.  And, if this is not satisfactory to the HOA, it can have a court appoint a Receiver to collect rents – period. 

What we have here is the disgraceful state’s interference with a contractual obligation between landlord (member) and tenant granting the third party HOA preemptive rights to collect monies under the contract.  This interference cannot be justified as a bona fide government interest as it protects one party over the individual. In fact, subsection (8)(a)(1) grants powers to the HOA to collect rents for any debt owed the HOA, and that means fines, attorney fees, interest, etc., ”If the parcel is occupied by a tenant and the parcel owner is delinquent in paying any monetary obligation due to the association . . . .” 

Please understand the special privileges granted to the HOA. For example, under a mechanic’s lien judgment, the worker cannot have rent payments be delivered to him personally.  And he would first have to get a court order.  Even under garnishments a court order must first be obtained.  But no, the HOA has the power to act on its own.   Again we have another example of pro-HOA public policy favoring special rights and privileges for HOAs only, and not any other business or creditor/debtor relationships. 

I’ve written about the culture and climate that is an open invitation for intentional wrong-doing by HOAs, presumably with the approval of their attorneys. With this pro-HOA public policy, “HOAs have no restraint on running amuck, and on intentionally running amuck.”

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.