Tag: legislature

Political dynamics at play in HOA-Land

“In order to succeed you must accept the world as it is and rise above it”

Historians have referred to the American Revolution as the “American Experiment” because it introduced a modern, as of that time, form of a democratic republic.  Would such a government based on the principles, beliefs and values of our Founding fathers survive the passage of time?  However, over the past century there has been a slow but steady erosion of the American Experiment. 

Simply stated, the following questions remain unanswered by state legislatures or HOA special interests, first asked in 2005:

  1.     Can a legislature delegate its functions, not government services but functions, to private entities without oversight or compliance with the Constitution, as required of all government entities?
  2.      Can private parties enter into contractual arrangements using adhesion contracts and a constructive notice consent, which serves to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?

(Why Homeowners Associations (HOAs) should and must be made political subdivisions) (2012).

Failing to address these fundamental questions has permitted HOAs to exist as de facto governments functioning as a second form of political government within the US. HOAs reject the US Constitution by their actions — forget the words.  In 1964, with the publication of the Homes Association Handbook, Technical Bulletin #50, by the Urban Land Institute, and with the support and funding of private interests and federal agencies, the birth of the Second American Experiment went largely unnoticed.  

“The special interest promoters have described this second Experiment, boastfully, not as a revolution, but as “The Emergence and Acceptance of a Quiet Innovation in Housing”.  This second experiment was not a strengthening of democracy, but one that promoted and established, with the support and cooperation of the state legislatures, private, contractual, authoritarian government regimes.”

Homeowners Associations: the Second American Experiment (2008).

 

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.

AZ bill automatically removes BOD if law not followed

Some good news for restoration of homeowner control of the boards failure to act in violation of state law.  Arizona bill HB 2607, Sess. L. Ch. 111 added this subsection regarding the removal of the board of directors.

Section 33-1243 for condos and 33-1813 for PUDs:

“(d) If all of the requirements of this subsection for calling a special meeting are met and the board of directors fails to call, notice and hold a special meeting within thirty days after receipt of the petition, the members of the board of directors are deemed removed from office effective at midnight of the thirty-first day.”

Of course, the homeowners must have a set of directors ready to take over and establish the election/appointment of the new board as party of the BOD’s records.

Thanks to Dennis Legere for his many efforts before the Arizona Legislature.

The Art of War and HOA Reforms War #1

While HOA reforms require new legislation in every state to restore lost rights and freedoms resulting from the adhesion, authoritarian CC&Rs “contract,” advocates need to understand that reform activity has moved from a social and political movement to a war against an entrenched enemy.  I have used terms like doing battle,  the enemy, attack, etc. not lightheartedly.

The common quote from The Art of War (the James Clavell version is easy reading), “If you know yourself and your enemy, you need not fear the result of a hundred battles,” is just one of many that are easily applied to any organized civil, contentious movement.  Just like we are facing in our attempts to reform the HOA concept and being faced with opposing forces led by CAI. 

We must all toughen up for success!

I have selected several statements from Chapter VI that can easily be seen as applicable to our efforts.  As a longtime student of history, especially military history, I offer my interpretations.  Alternate interpretations are possible. The numbering reflects the sentence number as used by Lao Tzu.

Chapter VI–

  1. Whoever is first in the field and awaits the coming of the enemy, will be fresh for the fight; whoever is second in the field and has to hasten to battle will arrive exhausted.

2.Therefore, the clever combatant imposes his will on the enemy, but does not allow the enemy’s will to be imposed on him.

5.   Appear at points which the enemy must hasten to defend; march swiftly to places where you are not expected.

[Too often advocates have reacted to the CAI supported bills or positions rather putting their positions and bills on the “table” out first. They then need to catchup and defend against the allegations and not arguing their positions.]

[The following quotes advise the General (leader) to know the enemy — your opponent. Power negotiations is a two-party “game” and knowing the opposing teams’ strengths is important for success.]

10.  You may advance and be absolutely irresistible, if you make for the enemy’s weak points; you may retire and be safe from pursuit if your movements are more rapid than those of the enemy.

        [Taking some action regarding bills or any statements that need to be challenged.]

13.  By discovering the enemy’s dispositions and remaining invisible ourselves, we can keep our forces concentrated, while the enemy’s must be divided.

14.  We can form a single united body, while the enemy must split up into fractions. 

        [A failure of advocates to unite has hurt the reform movement. Each failure to unite allows CAI to boast, “See, they are nothing to be worried about.”  Legislators, like everybody else including lawyers, want to back winners, not losers.]

19.  Knowing the place and the time of the coming battle, we may concentrate from the greatest distances in order to fight.

22. Though the enemy be stronger in numbers, we may prevent him from fighting. Scheme so as to discover his plans and the likelihood of their success.

23.  Force him to reveal himself, so as to find out his vulnerable spots.

     [In summarizing these last 5 statements, advocates need spies, just like our military uses spies and sends out recon units in order to find out what’s happening. Lao Tzu stresses this aspect in his last chapter. With CAI closing ranks and restricting access to its websites, member spies must be recruited.  I did well using spies in my early activist days.]

Decl. of Indep. from HOA government — 2000

At this time when advocates are urging homeowners to present reform bills to their legislature, this earlier post of mine revealed the problem dealing with the legislature from the very beginning.  This 2014 repost refers to my appearance before the Arizona HOA Hearing committee in 2000, which also appeared in Robert Nelson’s book (p. 102) published by the Urban Institute Press.   

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“In 2000, as a naïve and newbie to the politics at state legislatures, Arizona in particular, I addressed the HOA Study Committee on September 7th (3rd such meeting of unfulfilled 7) and submitted a statement titled, “HOMEOWNER’S DECLARATION OF INDEPENDENCE  from homeowner association governments.”  In it I quoted parts of the Decl. of Indep. And informed the committee that I had hoped that these hearings would bring forth a list of grievances for which homeowners were seeking redress. 

[In 2000 I testified – – -]

“And as in those times of 1776, a small, principled and dedicated group of citizens are seeking a redress of their grievances. They first looked to the existing government, the HOA Board, and failing to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association controlling document, the CC&Rs.

“Mr. Chairman, ladies and gentlemen of the Committee, at this time I had hoped that the citizens of Arizona would be able to present and enumerate their long list of abuses, and solutions to these abuses, similar to as is found enumerated in the Declaration of Independence, without the interference and obstruction by elements of these ‘oppressive governments.’  I see that this will not be the case.

“The people of Arizona only wish to be able to present their case before this Committee in a fair and just manner. However, sadly I feel that, because of the composition of the committee, the homeowners are actually being placed on trial; that they are being asked to justify their grievances before their oppressors” [CAI].

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Today, I think it would be helpful to adopt my statement and add those grievances that you feel need to be solved, and submit the entire package to your legislature and the media.  It would be your declaration from HOA governments, your petition for redress. Of course, the more signatures you have the better.