Nevada – Page 3 – HOA Constitutional Government

HOA Privatization Scale: facing reality

Note: As you read this commentary, please keep in mind the serious revelations of wrong-doing in HOA-Land: in Nevada, in California with corrupt judges, in Arizona where the case files on charges against an HOA attorney for aiding and abetting have been sealed, and in those states with consumer “pacifier” ombudsmen who accomplish very little. Many will blame the government, and ignore the role played by the HOA member in allowing such activities to happen with such ease. The Privatization Scale shows an attitude that can be described as an irrational fear of, “Don’t make waves otherwise the government will take my HOA away.”

HOA Privatization Scale

Having spent a few years in this arena of homeowner associations, I’ve come up with a scale to help define where a person stands on the status and acceptance of HOAs. This is based on the attitudes and statements made by the person and will be helpful in understanding and communicating with him.

I chose a scale based on the degree of privatization that is acceptable to the HOA member; that is, how strongly does the person identify and accept the level of privatization in one’s life and home and the intrusion into one’s privacy by HOA boards. There are 5 classifications:

1. REVOLUTIONARY – This person sees HOAs as an anomaly to the American way of life and beliefs, and operating outside the laws of the land. The HOA model must be completely revised or removed.

2. REFORMER— This person generally accepts the HOA legal model and powers of the HOA as granted by the CC&Rs, and permitted by the state governments. He only wants the board to change its ways to conform to his views. He’s primarily concerned about his own local problem.

3. COMPLACENT — He is the person who is content with his HOA, only seeing “personal” aspects of the HOA’s powers and functions; that is, the HOA keeps the community neat and clean, provides amenities, etc. This person does not understand the broader issues surrounding HOAs. There are no problems with the board, just those homeowners who don’t comply. The board does a good job.

4. TEAM PLAYER — This person understands the private nature of the HOA, but prefers it and the sanctions against members. He primarily is concerned about the quality and value of his community. A believer in private clubs and their restrictions, and a person’s right to associate with whom he pleases. He does not let violations of fundamental principles and laws affect him.

5. TRUE BELIEVER — This person is a power player who understands that the HOA private organization structure, with the lack of government enforcement against HOA board violators, offers an opportunity to control and to dominate. Enforcement is necessary to protect property values. What’s good for him is good for the community. Most horror stories can be found here.

The graph shows a normal distribution curve and the percentages of the people within each segment. As can be seen, I have shifted the Complacent category to the left. It signifies a preference by HOA members in favor of acceptance of the HOA legal concept, beyond an unbiased expectation. That is, all things being equal, as I’ve tried to accomplish with the scale, category 3 should fall in the center of the graph.

In the normal course of things, those at the extremes, the Revolutionaries and True Believers, are the most proactive and vocal segments, but not in equal strengths of being active. The right-side has been more vocal and influential.

From my many years of direct involvement in the HOA reform movement and my research and study into social and political reform movements, the environment and conditions necessary for substantive reforms to occur are not even on the horizon. Token reforms will occur here and here, and some have brought substantive changes like the OAH adjudication of HOA disputes in Arizona, and the prohibition on foreclosing just for HOA fines. Sadly, though, many substantive reform bills have been repeatedly rejected by state legislatures.

As long as reformer-advocates continue to accept the legitimacy of the HOA legal scheme — not wrongful or unlawful — they have rejected their most powerful weapon in their battle to achieve substantive reforms. And in doing so, they have allowed their very powerful oppressors to sit as equals at the bargaining table. The outcome is, and can only be, as expected and as demonstrated historically.

ASSERT YOUR RIGHTS AS A CITIZEN

REJECT THE HOA CONSTITUTION

Send the HOA Member Declaration of Citizenship to your legislators!

NV agency opinion: stop making homeowners pay HOA attorney fees

The purpose of the homeowner in an HOA is to pay and pay and pay. Donie Vanitzian, a homeowner rights advocate and author, said it back in her 2002 book, Villaappalling! Destroying the Myth of Affordable Community Living,

When homeowners move into [an HOA] they have only: Obligations to pay out money. . . They also pay out when and if the board tells them, ‘You have to pay’ . . . . Should you disagree with the board’s order (agenda or whim) to pay, you still have to pay to prove that you don’t have to pay. (P. 296).

This message was recently taken to heart by the Nevada Real Estate Dept. (RED) in response to a request for an advisory opinion by homeowner rights advocate, Jonathan Friedrich. This issue is a common, and one example of the broader issue of, “the homeowner pays and pays everything.” Friedrich asked: “Does NRS 116.3115(6) give an association the right to charge a unit’s owner an attorney fee when the association’s attorney attends a hearing against a unit’s owner?”

The RED concluded,

Exercising the due process right to a hearing on an alleged violation under NRS 116.31031 is not in and of itself “misconduct,” “willful misconduct,” or “gross negligence.” Associations should not be using NRS 116.3115(6) to pass on any attorney fees resulting from a hearing, especially where the association imposes a fine to the maximum extent possible under NRS 116.31031. NRS 116 specifically provides for attorney’s fees to be provided to prevailing parties under NRS 116.4117 in civil actions to enforce the governing documents or NRS u6. The court is not required to award attorney’s fees even if an association is the prevailing party. Association board members who chose to have an attorney present at alleged violation hearings do so at the expense of all the unit owners. Such expense cannot be passed on to a particular unit owner.

Let’s look into some of these money making practices, not for the HOA, but for the HOA attorney, which serve to intimidate the homeowner by means of legalized extortion – demanding payments under the threat of harm or injury.

Understand that the modus operandi here – the reason for doing – is fostered by the legal HOA scheme that allows the HOA attorney to control and strongly influence board decisions in its favor. (Relying on expert advice will relieve the director of any personal liability). And that is to go to court under the justification, “You can’t let the masses get away with anything as it undermines your authority to rule.” My words, but to the point. So, why not adopt a hostile, no holds barred approach which generates income for the attorney. And, making this approach more appealable to the board by pointing the HOA legal scheme, the attorney tells the board, “Don’t worry, you can charge all this back to the homeowner.”

Another prevalent tactic occurs in an attempt to work out issues with the board on matters of alleged fines or late assessment payments. The homeowner is often told to talk to the attorney and not anyone else, where the attorney tacks on his usual fee of $150 – $300 per transaction. Shades of banana republic justice! This amounts to legalized extortion — pay to resolve our charges even before a hearing on the merits takes place. But, we all know the hearing is just window dressing — we’ll give you a fair hearing before saying, “Guilty.” Makes you wonder why the HOA attorneys do not fight for a fair and just due process procedure like that offered by the Office of Administrative Hearings in Arizona, doesn’t it?

I congratulate the Nevada RED for its just and fair opinion, and Jonathan Friedrich for seeking the opinion. We need justice for homeowners from our state protective agencies to put a stop to these obvious HOA banana republic tactics.

We need to seriously look into the roles of the HOA attorneys and their overbearing advice to go to court no matter what. And many times these court actions are frivolous and violate rules of civil procedure relating to a meaningful action based on an examination of the facts and the law by the attorney.

HOAs and the decline in community social capital

In a direct reference to HOAs and social capital, Craig Walton, speaking of conditions in Southern Nevada, comments on Rothman that the developer’s planned community [HOA] subdivision “created living that was intensely private” and reflect “the community’s preoccupation with the self.” Craig continues,

Rothman reflects on the need for public spaces and their recent decline “Parks and libraries offered shared space and commonality of values, civic interaction and socialization. They combined education, relaxation, and social cohesiveness, all desirable traits in a growing community. They were crucial building blocks, pieces of the puzzle of quality of life that served the community and enhanced its reputation. . . .This dire warning is rooted in the absence of social capital in southern Nevada, because the power of developers to obtain and use land for increasingly expensive housing goes unchecked by elected and appointed public officials.”

These associations do not create positive social capital consisting of social networks and connections with reciprocal relationships, social interactions, trustworthiness and mutual obligations between the powerful boards and the rank and file homeowners. Rather, HOAs are a major cause of the destruction of social capital within the subdivision community. And as HOAs have become institutionalized — being accepted without question as “that’s the way it is” — they have made a substantial contribution to the decline in social capital in America.

Read the complete paper, The Effect of Homeowners Associations on Social Capital in Communities