Tag: linkedin

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).

 

Colorado report on HOA problems needs to be corrected

The Colorado real estate department issued its first report on the state of HOAs and condos for 2011, raising some questions of integrity. A total of all the complaints in the chart shows 893 complaints, or almost twice as many as proclaimed. In fact, totaling the listed percentages show almost a doubling to 194.2%. See the chart link below, where “adj pct” is the “normalized” percentages.

The normalized analysis shows that all the complaint types that can safely be attributed to governance issues, the top 16 in the table, make up 84.3% of all complaints. And, those 4 explicitly stated management complaint,  amount to 31.1% of all complaints.

If those in power refuse to face the reality before them, then they live in a delusional world where effective reforms can never occur. And where there are unjust laws, then the government is seen as illegitimate and not representative of the people who are the State of Colorado.

See Colorado report

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. 

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)