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High Noon in HOA-Land: members who permit lawless boards to function

Marshall Will Kane

Marshall Will Kane (left) throws his badge to the ground with disdain after defending Hadleyville, where the good people of Hadleyville stood by and did nothing.  (The 1952 movie, High Noon).

Some 60 years after the events in Hadleyville, thousands of HOAs follow in the footsteps of the Hadleyville townspeople and do nothing to rid their HOA of lawless rogue boards of directors.

How did this come to be?  Could it be like the townspeople, they FEAR reprisals from a lawless, vindictive and punitive board?  Could it be the indoctrination into obeying authority figures and the acceptance of imposed roles to conform to the group’s rules, right or wrong (See, “Why do people harm others in HOAs?”)?

Could it be a malaise, a general apathy as described in The HOA apathy affliction: a political dynamic and The role of the HOA apathy affliction in circumventing public policy on how the HOA lawyers work apathy in their favor?   While these acts describe a particular aspect of HOA oppression, in total, it must be understood that the pro-HOA laws (no punishment for board violations) and the unconscionable adhesion CC&Rs contract favoring the HOA contribute to the failure to develop a bona fide community spirit and a community centered civic virtue.

The development of a healthy community spirit and civic virtue are essential to eradicating apathy. Virtue can be defined simple as “conformity to a standard of right,” civic virtue as “a commitment to democratic principles and values,” and community spirit as “an involvement in and concern for one’s local community.”

CAI defines community spirit as having “pride in a community” and offers steps to produce this emotional identification: getting involved in activities outside the HOA, holding entertainment party and events, and becoming active in the community (Best Practices, “Harmony and Spirit”). No mention at all about civic virtue as a necessary part of creating a healthy community, and that a concern for the community must address issues of civic virtue. 

How can civic virtue and a healthy community spirit develop when the homeowner is placed in an environment and culture that opposes any such proactive activities?  As investigative reporter Ward Lucas points out in his new book, Neighbors At War!

Welcome to the weird world of HOAs . . . where life, liberty and property are in the hands of your neighbors, neighbors who are unconstrained by law . . . . That’s right!  These boards for the most part are not obligated to protect or respect any human or civil rights. . . . The very structure of Homeowners Associations gives them the ability to exert bully power on a completely arbitrary basis.

The apathy, the lack of HOA civic virtue, and the lack of a genuine, healthy community spirit that allow lawless rogue boards to violate the law and governing documents is the result of the above mentioned HOA legal structure and dynamic forces.  The legal structure of the HOA is secessionist, rejecting the principles and values of the US Constitution and Declaration of Independence for a fascist contractual government focused on maintaining property values. Where, as in fascism, individual rights, freedoms, and privileges and immunities guaranteed to all citizens do not matter. 

 

HOAs undermine our constitutional democracy!

new HOA book — Neighbors At War! by Ward Lucas

Amazon review By George K. Staropoli

This review is from: Neighbors At War! The Creepy Case Against Your Homeowners Association (Paperback)

Neighbors at War! is a refreshing description of what living in an HOA (homeowners association, property owners association, common-interest community or condo association) that the average person can understand. It is not another legal treatise, or academic journal or book, but the writing of an experienced and award winning investigative reporter.

It is a long needed book for prospective buyers of HOA controlled homes or those already living in an HOA. All those state mandated documents do not tell it all, as state legislators are pro-HOA and accept the denials of homeowner rights contained in HOA adhesion contracts.


Ward Lucas ranges far and wide, from questions of constitutionality and denials of bill of rights protections to more down-to-earth issues of HOA procedures and operations. Foreclosure, no fair elections, and kangaroo hearings on violations are examples of the cases and issues that are discussed in easy to understand terms.

I’ve been repeatedly told by legislators that complaining homeowners are trying to get out of a contract, should have read the CC&Rs, and should have gotten a lawyer. And not a word about misrepresentation and fraud.


Do not fall into the trap of Buyer Beware! Read this excellent book and discover what you are not being told by the special interest national lobbying organization formed to protect, not your rights, but the HOA status quo. Neighbors at War! is a must read for informed homeowners and state legislators

HOA board mentality and unconscionable CC&Rs rewrites

Homeowners living in HOAs must decide what side of the fence they are sitting on!       Whether on the side of management or on the side of the rank and file homeowner?  There is a major difference as the HOA is not a democratic community government, but a corporate form of government.  And never has a corporate form of government been described as democratic.

The business parallel of “management vs. employees” in HOAs is alive and well. Management represents the HOA entity and not the members, just as management represents the stockholders and not the employees.  Legally this fact is found everywhere.  And the HOA attorney who advises the board and rewrites CC&Rs and amendments represents management and not the interests of the members.  How many times have you seen and heard “for a more productive and effective HOA” and “for the benefit of all members collectively”?   Sounds nice, but the two are not equivalent.  The board does not speak for all the members and that’s why there is member voting.

A most egregious and unconscionable act by the board and its attorney can be found in the broad rewrite of the CC&Rs where liberties are taken in favor of the HOA.  Where the homeowner again unknowingly waives and surrenders his rights and freedoms to the HOA, because the homeowner rank and file does not hire their own attorney to explain the impact of the HOA changes.

An example of how far this unconscionable activity can go involves the rewrite of CC&Rs by an Arizona CAI member attorney firm, and member of CAI’s College of Community Association Lawyers (CCAL).   In the rewrite the attorney deleted “reasonable” with regard to attorney fees and added “all”.  The attorney also did not adopt the “prevailing party” widely accepted standard of fairness, but mandated the homeowner to pay its fees regardless if the homeowner wins.  In other words, even if the homeowner had brought suit against HOA wrongful behavior and wins, he must still pay the HOA attorney fees.  Covenants that are unconscionable and against public policy are held to be invalid.

Additionally, a festering issue at the Arizona Legislature has been the awarding of attorney fees by the Office of Administrative Hearings (OAH).   The attorney uses the term “administrative law judge” as most homeowners would know that OAH does not pay attorney fees.  This blatant “squeeze it by and maybe they won’t notice” tactic is disgraceful.  Yet, in 99% of the cases heard at OAH the HOA has decided to hire the unnecessary attorney.  The HOA should pay for this unnecessary decision.

And yet many homeowners would go along with this “stick it to the homeowner” mentality.   Presumably because they see themselves not as the “homeowner” at issue, and therefore it doesn’t affect them.  But, the rewritten covenants apply to them, all of them.  And it also applies to the directors and officers who believe that this unconscionable conduct is good for the HOA in the long-term, and that it also doesn’t apply to them.  But, unjust and unfair covenants that openly serve the interests of their attorney cannot be seen as in the best interests of the HOA.

Homeowners in HOAs must decide where they stand.  For their rights or for unconscionable conduct and acts of bad faith by the HOA board and its attorney who is not your attorney.

HOA board mentality: ‘because we can’ and ‘because we don’t have to’

How many times has a board member come up to you and say, “Hey, see you’re building an addition?  You know, you need to submit a request for approval before you do anything.  Come on down and let’s talk about it?”  Or, “Our landscapers will be coming by on Thursday to reset the sprinkler timers.”

Why not?  Because it’s the board’s mentality: “Because we can” and “Because we don’t have to.”   This mentality develops, based on my long history in seeking justifications for many outrageous acts by HOAs, from long term indoctrination into hair-splitting the laws and covenants, a parsing of the laws, in the best interests of the HOA.  Of course, coming from the HOA attorneys.  And there are no other rational and legitimate reasons for doing so, or not doing so, especially when good faith conduct is required of officers and directors.

What ever happened to “HOAs create pleasant, harmonious, carefree living, and democracy at work?”  What ever happened to social graces?  Good neighbors?  And common friendship?  I think that the problem lies with recourse to the CC&Rs that must be enforced at all costs got in the way. 

HOAs create an unhealthy climate.  See, Why do people harm others in HOAs?,  The HOA apathy affliction: a political dynamic

 

Police ignore HOA complaints with tragic consequences

This news report addresses the repeated erratic behavior of homeowner in HOA that went ignored and a neighbor is forced to defend himself. Many times I’ve been told that the police would reject complaints of assault, harassment, charges of embezzlement and theft among other complaints. They have adopted this “hands-off” HOAs policy that denies citizens the equal protection of the law.  And, county/district attorneys often tell homeowners seeking to file a complaint to first file the complaint with the police.

Given the widespread reporting of oppressive, authoritarian HOAs acting irrationally, arbitrarily, and violating the laws, the failure of the government to provide practical protections for homeowners in HOAs is tantamount to playing Russian Roulette with the lives of people living in HOAs.

 

Clashes precede man’s killing

“Days before the incident, the homeowners association filed an injunction against Gallik, who had moved in the home in May 2007.

“According to the injunction: ‘He makes verbal threats to the association’s agents and members; walks around the community with a whiteboard chained around his neck stating ‘Death to Southshore Falls,’ has strung clothing lines along the front of the property; bathes in the front driveway and in the dwelling’s gutters to compensate for lack of running water, runs a generator from the front driveway to compensate for lack of working electricity, wanders in the common area allowing his dog to defecate in the middle of the road.’”

The injunction filed by the HOA against the problem homeowner included this statement, “The police insist such assaults and threats of violence are an association matter.”