Tag: legislature

Are HOAs part of this country, this community, or are they secessionist?

“While Terry believes HOAs wield far too much power, Marta Gore has a different opinion. “We all want our property values to increase. In order for them to increase, we all have to hold to a certain standard,” said Gore.”

And that requires, as history has well demonstrated, strict enforcement of the rules to coerce obedience to the objectives of the state[1], which flows not from the US Constitution, but from the HOA organic law based on The Homes Association Handbook and UCIOA[2]. Wait, wait . . . do you hear the refrains of Deutschland uber alles, the adopted hymn of HOA-Land?

HOAland, HOAland über alles,

Über alles in der Welt,

Wenn es stets zu Schutz und Trutze

Brüderlich zusammenhält.

. . . .

HOAland, HOAland über alles,

Über alles in der Welt!

HOAland, HOAland above everything,

Above everything in the world,

When, for protection and defence, it always.

takes a brotherly stand together.
. . . .

HOAland, HOAland above everything,!

Above everything in the world!
“Gore is with Texas Community Association Advocates; an organization that represents hundreds of HOAs in Texas. The McKinney resident says a few abusive HOAs give the rest of the industry a bad and undeserved reputation.”

Why are they continually opposing reforms to hold the rogue and intentionally wrongful HOAs accountable to the state, and to demand good corporate citizenship.  Are they saying that it’s not the job of our HOA, that it’s not in the CC&Rs?

 See Powerful HOAs Leave Many Texans Feeling Homeless

References

1. HOA Gestapo tactics — the slippery slope steepens

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

Findings of the 2011 Colorado HOA problem report

The findings of the Colorado HOA problem identification report are as follows, and substantiate the fact that HOA democratic governance is sorely lacking:

 

What we discovered was that the complaints we received primarily involved the board of director’s failure to follow corporate governance rules and procedures of the HOA; the transparency of the board of directors, particularly as it related to the finances of the HOA; and harassment and bullying of homeowners by the board of directors and management company by arbitrary fining, preclusion from providing input into the associations’ affairs, and verbal harassment. These complaint types were much more serious than the aforementioned three P’s because they substantially interfered with a homeowner’s ability to enjoy his property and to have avenues of democratic participation in the HOA to remedy their issues.

An additional and perhaps one of the more troubling complaint types the Office heard was that the HOA board or manager was harassing, discriminating or retaliating against homeowners. Many homeowners felt that their boards had singled them out and were arbitrarily fining them for violations, when they were not in violation; engaging in selective enforcement of covenants; and precluding them from participating in meetings. . . . A frequent complaint heard was that older board members were discriminating against younger homeowners or where older homeowners felt they were discriminated against by younger board members.

 Another troubling subset of complaints involved diversion, fraud, and theft. . . .  The most frequent complaint types filed against managers mirrored those pertaining to HOAs, including access to records, transparency and communications, not communicating with homeowners, harassment and selective enforcement of covenants

 

And the report makes the following, not unexpected, observation, which can apply to all HOA legislation in all states (emphasis added).

 

The drafters of SB-100 and SB-89 obviously understood the need for statutory protections to homeowners, but the issue homeowners are having is not that the law does not address their specific issues, rather the law does not provide a realistic or economic means to seek redress.

 

 The lack of such realistic means for redress can be found in the public policy of each state to support and protect the HOA even against unjust and unconstitutional denials of homeowner rights and freedoms.  One very effective and proven means is to provide for effective penalties against HOA violations of the laws and governing documents in the name of the people.  That means sufficient fines and even misdemeanor charges as warranted, especially when considering such penalties are imposed for wrongdoing by a government official or agency.

 References

1.       Colorado report on HOA problems needs to be corrected.

2.       “Hannaman Report”, (Similar report in NJ, 2002).

3.       The StarManPub  videos on the Florida House HOA hearings (2008).

 

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. 

Soldiers fighting for American democracy, only to return to HOA-Land

We continually hear about protecting our Homeland, defending our American way of life by fighting and dying in other countries.  Showing other countries how democracy works.  But, many of our brave defenders of America return to the states, not to a country anymore but to a “homeland.”  A country being battered by states of the union proclaiming that they are sovereign states.  Returning to their state with its public policy to protect and defend, not America, not individual rights and freedoms, but to protect and defend HOA-Land with its sanctity of contract, supreme over constitutional law.

One more time we are witnessing a returning veteran having to deal with his independent and protected principality, this time over a “cause celebre,” a child’s swing set.  (Army Captain Sued by HOA Over Kids’ Swing Set).  Others have fought over the right to fly the American flag or a military flag in honor of lost loved ones.  But no, the HOA cannot tolerate an infraction of any of  its rules  no matter the reason.

The HOA president, a WW II veteran, was quoted as saying, “I’m not immune to the emotions of this,” he said. “[But] if you break the rules, you broke the rules. You can’t break the rules for your own personal reasons.”   I guess this WW II veteran never understood who or what he was fighting for then.  Instead, it appears he adopted much from his experience.   Heil HOA-Land!  HOA-Land uber alles!   

It appears that our political leaders, with no WW II veterans, have forgotten the events leading to WW II, and why Americans fought on foreign soil. However, I guess this is different, because this is not Germany but America.  And things like that just don’t happen here.

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.

 

References

Memorial Day: American soldiers are defending a New America, one without democratic protections (2007)

HOA made no attempt to contact soldier in Iraq before foreclosing (2010)

Pres. Obama spoke of getting involved in democracy (2009)

Republican McCain and Democrat Obama preach democracy to the world, while 20% of Americans live under authoritarian HOA regimes (2008)

Pres. Obama and flying the flag in HOAs (2009)

Legislative protection of HOAs: replacing US organic law with HOA organic law (2012)

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.