Tag: law

For legislators: poster-child case of HOA extortion of homeowners

This Florida case is the poster-child for the “standard operation procedures” by rogue HOA boards. The situation heard too many times by this advocate, and amounting to legalized extortion because most homeowners cannot afford to go to court for justice. And the HOA, its management firm, and its attorney all too well know this!

The “see no evil, hear no evil, speak no evil” attitude of state legislatures and their misguided belief that the HOA, like any other business  are angels can do no wrong — and will protect the rights and freedoms of its members — must cease right now! This is another example of “us agin’ them” and the destruction of trust and social capital within HOAs.

The appellate court quoted,

“The trial court found that the complaint to foreclose the lien was premature. Agreeing with the trial court, the Third District noted, ‘Had the Association accepted and applied the tendered payments, the dispute would have been reduced to an inconsequential amount, and the Association’s attorneys could not in good faith have filed to foreclose the miniscule claim remaining.’ Ocean Two Condominium Ass’n v. Kliger, 983 So.2d 739 (Fla. 3d Dist. App. 2008).”

The court held,

“What can be gleaned from this record is that the association and its accounting methods were woefully inadequate to correctly ascertain and give notice of the amounts claimed to be due. Because of this imperfect record-keeping, the association did not make a proper claim of lien, nor did it give sufficient notice in its complaint of its claim. Had it done so, in all likelihood this case would not have even been filed. Saar showed that she consistently made the payments required and had detailed records to support her payments, many of which were not properly credited by the association. She paid all sums due in accordance with the notices and claim of lien.”

SAAR v. WELLESLEY AT LAKE CLARKE SHORES HOMEOWNERS ASSOCIATION, INC.

HOA advocates must deal with reality for success

In a study I did in 2009 on Bar complaints in total, using its reports, only 15% of the complaints submitted 2005 –2008 resulted either in a Bar sanction, or a Supreme Court finding of a violation of law – 9% for the SC and 6% for the Bar. Of all the cases involving the HOA attorneys, I am aware of only 2 cases that resulted in “guilty” findings – one brought by a court appointed Receiver and one by a judge.

The State Bar’s real name is, The Benevolent and Protective Order of Attorneys (BPOA).

Complaints filed against an attorney must follow the same process as in civil court: cite the laws and Rules of Conduct broken, and supply concrete evidence of wrongdoing.

In the past I posted copies of the Arizona AG’s response to requests for help, as well as ADRE’s “not my job” response.  Both agencies said, “Go tell it to the Legislature.”

Arizona Attorney General will not prosecute for HOA justice

ADRE: Licensed AZ R.E. agents can do as they please in HOAs — Not My Job

 

 

Town bans citizens from discussing the government

BeatTheMatrix.com reports on a July 20, 2011  Fox16 Arkansas segment,  Town to Ban Citizens from Discussing City Matters without Permission,

 

A small Arkansas town (Gould) is attempting to ban groups from meeting to talk about the city without first getting prior permission from the city itself. Ordinance currently applies to all groups small and large including, but not limited to: bookclubs, boyscouts, and dinner table discussions.

Now, I fully understand the appeal of “no government interference,”  especially when, as this incident suggests, the legislators or city council have been out in the sun too long, or the water supply is contaminated, or the council has been possessed at night by these pods under their beds and are really aliens.  The city has declared “an emergency to preserve  the peace, health and safety” from The Citizen’s Advisory Council.  The city has banned the Council because it  “is causing confusion and discourse [that means plain ol’ talking] among the citizens . . . contributing friction between the mayor and the Council [not clear if they meant Advisory or City Council], but also among the citizens who deserve cooperative government.” (See ordinance).  In short, “There’s trouble in River City”.

Note, though, the City took panes to provide some reasonable, legitimate government interest to violate the people’s right to free assembly and to petition the government for redress of grievances, as set forth in the First Amendment.  We don’t even see that with bills passed by our state legislatures, since the “sovereign can do no wrong.”

I guess the city has been following what the multitude of private governments in HOA-Land have been getting away with and are nor saying, “Me, too!  We want to ignore the Constitution, too.  After all, we are the legitimate government in this state.”  Or, are they?

HOA boards can be sued and not covered by insurance

Much of the abuse by boards, the management firms, and attorneys are tortious acts that are illegal and also constitute a fraud upon the members. You will not hear this at pro-HOA seminars sponsored by local governments and/or taught by CAI attorneys.

“D & O” means “directors and officers.”

“Most, if not all, D&O policies contain a provision that excludes intentional criminal and fraudulent acts committed by board members,” says Collins. “However, [our policy] will continue to defend the directors and/or officers until such time that a criminal action can be proven. The policy will then cease to provide any further protection once it is determined that a board member knowingly committed a criminal or fraudulent act.”

D&O coverage also doesn’t indemnify a board or board member against decisions made “in bad faith,” or with illegal intent. If a board is found to have acted in an illegal manner—deliberately discriminating against a prospective buyer, for example—and are hit with punitive damages, members are on their own when it comes to paying them.

The reason for pursuing these actions acts of bad faith is to force the homeowner into court, where the attorney gets his fees and the HOA gets a free ride, most of the time.  Directors and officers are legally bound to act in good faith toward their members.

The ABC’s of D&O

See also Will legislators stop CAI attorney acts of bad faith?

Will legislators stop CAI attorney acts of bad faith?

As a concrete example of a lack of good faith by HOA attorneys, that smells of aiding and abetting the board to get around the letter and intent of the law, is the newly effective Arizona statute permitting the videotaping of board meetings. Just 2 weeks after the signing of the bill into law, and still 3 months away from its effective date, the CAI member attorneys at Carpenter Hazlewood (CHDW) began their campaign against this open meeting law. They began by offering suggestions as how HOAs can adopt what CHDW considered reasonable rules. No board came forward and said, “How do I beat this law and protect the board?” as far as I know. (Such actions by a board would in itself be a violation of its duties of good faith to the owners as a whole).

Returning to the example at hand, Carpenter Hazelwood, through the management firm of AAM, the board informed the members of the Tatum Highlands CA board’s “reasonable” restrictions that, as usual, are one-way against the homeowner. Note that the HOA government is restricting free speech by not allowing dissemination or publication of the videotapes. Now, why would anyone videotape the meeting if not to distribute it for others who did not attend the meeting? What is the board afraid of? Some hanky-panky goings on?

It is quite clear that CAI does not act in good faith with respect to either the letter or intent of the laws. Rather than adopting the CAI Central propaganda that calls for creating harmonious, vibrant communities, which the homeowners can be proud of, its minions seek total advantage for the HOA.

State legislators must face up to reality of acts of bad faith by CAI attorneys and put a stop to this madness in no uncertain terms!

Read the complete Commentary here.