Tag: linkedin

Courts will enforce CC&Rs except when . . .

This Alabama appellate decision, Grove Hill HOA v. Rice, sheds light on the reasons CAI insists that the CC&Rs being strictly enforced by the HOA and the courts: the irrational fears of a slippery slope eradication of the HOA. (The HOA was seeking an injunction against the homeowners who had built a driveway not to its liking). One person, the proft-seeking developer, is allowed to set the rules that govern the HOA community for all time to come, regardless of any political consequences with respect to the creation of a private government regime.

 

The trial court held, based on the Willow Lake opinion, emphasis aded,

 

“The Association maintained throughout the proceedings that any violation of a restrictive covenant, if allowed over its objection, necessarily dilutes the power of the restrictive covenants and thereby lessens the value of the subdivision property. We agree. In creating the restrictive covenants, the partnership expressly declared that the purpose of the covenants was `to protect the value and desirability of the Property.’”

 

However, as we are finally beginning to see a proper sense of justice for homeowners, the appellate court attempted to reject the Willow Lake precedent and held, “We do not interpret Willow Lake as requiring that an injunction is due to be granted in every case in which a resident has violated a restrictive covenant. Indeed, this court has applied the doctrine of “undue hardship . . . .” That is, emphasis added,

 

enforcement of covenants running with land `”is governed by equitable principles, and will not be decreed if, under the facts of the particular case, it would be inequitable and unjust”‘; specifically, if `”the restrictive covenant has ceased to have any beneficial or substantial value”‘ or `”the defendant will be subject to great hardship or the consequences would be inequitable,”‘ a court of equity will not enforce the covenant.

 

Unforunately, to complicate matters, “undue hardship” requires “clean hands” on the part of the homeowner in that he had no prior knowledge that his act was in violation of the CC&Rs. The court held that the homeowner had prior knowledge and therefore had “unclean hands,”  stating “that a restrictive covenant should be enforced if the defendant had knowledge of it before constructing an improvement contrary to its provisions, even if the harm is disproportionate.” The homeowner lost and had to undo the driveway at a cost of $15,000 to him.

 

 

Grove Hill HOA v. Rice, No. 2100293 (Ala. Civ. App. July 29, 2011).

Pro Se wins federal HOA discrmination appeal

The federal 7th Circuit Court of Appeals opinion in Mehta v. Beaconridge clarifies what actions constitute a violation of Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq. Mehta filed as a Pro Se. He appealed the District Court’s dismissal of his complaint as lacking substance.

Here are relevant excerpts:

 The FHA grants homeowners a cause of action against homeowners’ associations for invidious discrimination or retaliation linked to the terms, conditions, or privileges accompanying their property.

 Under the FHA, a homeowner may sue a homeowners’ association if the association engages in invidious discrimination when failing to provide maintenance services or when limiting the use of privileges, services, or facilities associated with the homeowner’s dwelling.

 With regard to Mehta’s claim of retaliation, the FHA makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of their fair housing rights.

After Mehta complained of this disparate treatment, the association placed his family’s account on delinquent status and barred them from using the subdivision’s pool, club house, and tennis court. The association then performed uncalled-for work on their gate (switching the gate from swinging inward to outward) without providing them notice or obtaining their consent, and billed them for it. When Mehta’s family refused to pay, the association fined them and threatened to place a lien on their home. Apparently fed up with their complaints, one of its employees shouted at him, “you are not moved out yet, you Indian.”

Mehta sued under the Fair Housing Act, see 42 U.S.C. §§ 3604(b), 3617.

Mehta alleged that, after he complained of disparate treatment, the association retaliated against his family by “not allowing [his] family to go to [the] pool” or to facilities such as the “clubhouse, pool, and tennis court.” He pleaded, as well, that the association maliciously designated their account as delinquent and then performed nonsense work on their fence, billed them for it, and later threatened to file a lien on their home. Mehta has, therefore, provided fair notice of his retaliation claim.

With regard to Mehta’s claims of discrimination, he alleged that the association doled out privileges and services to white homeowners, while withholding them from his family. He further alleged that the association failed to maintain their home’s aluminum siding, roof, sump pump, sidewalk and parking space, while providing those services to white homeowners; and the association engaged in preferential treatment when maintaining the grounds of the subdivision. And Mehta alleged that an association employee shouted at him in racial terms, “you are not moved out yet, you Indian.” These allegations suffice to state a plausible claim of discrimination.

In summary, the judgment of the district court is . . . VACATED with regard to the dismissal of the FHA and Illinois law claims of intentional discrimination and retaliation.

Mehta v. Beaconridge Improvement Assn, No. 11-1505 (7th Cir. July 28, 2011).

 

 

Please note that constitutional protections and statute protections exist on an issue by issue basis. That is, if the court did not reaffirm that homeowners in HOAs have this right, then the homeowner must seek legislation to restore that lost right, which is the basis of HOA reform legislation dealing with substantive issues (as opposed to HOA operational issues)

HOA Kindle books

I have compressed and summarized my research on HOA constitutional  issues over ten years and have produced several Kindle books for a comprehensive understanding of the issues.  The historical basis for the current version of utopian societies begins with a review of The Homes Association Handbook of 1964, and the history of Community Associations Institute.

I’ve tried to bridge the gap between the writings of the academic,  political scientists and the people, and present and clarify the constitutional issues facing the curent HOA hegal scheme.

The following Kindle ebooks are available for downloading

2.

The Foundations of Homeonwers Associations and the New
America REVISED by George K. Staropoli (Kindle Edition – Oct 14,
2009) – Kindle eBook

Buy: $5.95
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3.

Establishing the New America: independent HOA
principalities by George K. Staropoli (Kindle Edition – Jul 17,
2008) – Kindle eBook

Buy: $15.95
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4.

Understanding the New America of HOA-Lands by George Staropoli (Kindle Edition – Sep 24, 2010) – Kindle eBook

Buy: $8.95
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Court holds HOA elections are a matter of public interest

A California appellate court held that HOA elections are a matter of public interest and annual meetings are a public forum. Candidates are limited public figures with respect to the elections. Therefore, the anti-SLAPP law applied with respect to statements made by the candidates and their speech is protected.  A defamation lawsuit based on statements made by the candidates must survive a motion that the lawsuit was made to stifle public participation.

 

In Cabrera v. Alam the court held,

 

We reverse and remand with directions to grant the anti-SLAPP motion. Defendant carried his burden of showing the defamation claim was based on protected activity under section 425.16, subdivision (e)(3). We hold defendant’s statements were protected activity because they were made in a public forum at a homeowners association’s annual meeting and concerned an issue of public interest, namely, the qualifications of a candidate for office in the association. Plaintiff failed to carry her burden of showing a probability of prevailing on the merits of the defamation claim. Having thrust herself into the controversy surrounding the election of the association’s board of directors, she became a limited purpose public figure who was required to show defendant made the allegedly defamatory statements with malice. Plaintiff failed to produce any evidence showing defendant made the statements knowing them to be false or recklessly disregarding their falsity.

 

Another step toward the recognition of the reality that HOAs are indeed de facto governments and need to be recognized as state actors, and brought under the protections and prohibitions of the US Constitution.

CAI acknowledges “unconstitutional taking”, but not from homeowners

CAI-CLAC (CA CAI lobbying committee) has apparently discovered the meaning of “an unconstitutional taking” when it object to the new California law, SB 209, that permits homeowners to install electric vehicle charging stations in HOAs. CAI argued in its July 26, 2011 email release (not shown under HOT BILLS on its website), “a very significant problem remained unresolved in that the measure essentially condones an unconstitutional governmental “taking” of property that is commonly owned by all the members for the benefit of one. (My emphasis). I’m impressed that CAI acknowledges constitutional law.

 

However, CAI, that national leading HOA educational organization — as it likes to promote itself, but is truly a business trade group to help its members make $$$$ — has no quarrel with the taking of homeowners’ constitutional rights, freedoms, liberties, privileges and immunities as a result of the application of the common law of servitudes over constitutional law. The taking of constitutional rights and freedoms, and the violation of the equal application of the law and due process protections for homeowners in HOAs by constructive notice — the simple posting to the county clerk’s office — binds buyers to the CC&Rs sight unseen, never mind the absence of explicit consent.

 

CAI seems to take this fascist state approach, where the goals of the state, the HOA, come before individual rights, is an absolute, sacrosanct, untouchable right conferred upon the HOA, without regard to the US Constitution. The justification for the legitimacy of the HOA government is the lame excuse that the homeowner remains in the HOA and does not leave its jurisdiction, thereby giving his implied consent to be governed and to the surrender of his rights. But, the HOA is not a de jure public government that functions without any contract. The HOA is a contractual arrangement, and this application of public doctrine is an constitutional taking of the homeowners’ private property rights.

 

Sadly, state legislators see no evil, no rejection of the US Constitution, and the courts allow this secession from the Constitution to prevail. What is the purpose of a constitution if any two people can sign a document that says we reject the Constitution? What is happening to America?

 

As we discovered with regard to Arizona’s secessionist feelings earlier this year, Art. I, Section 10, Clause 3 of the Constitution prohibits compacts between the states without the consent of Congress: “No state shall, without the consent of Congress . . , enter into any agreement or compact with another state”. And to allow private citizens to do so makes a mockery of the Constitution and the American system of government.  Are we already in The New America of HOA-Land? 

 

Read on CAI, read on and learn more about constitutional law.