Tag: North CArolina

Arizona Senators debate HOA legal status

 The Voice of Times Past  and the Voice of Times Present

 

A lengthy exchange, exemplifying  the polarized views of the HOA legal concept occurred between two committee members  during the Senate VMGA Committee hearing on SB 1113, control of public roadways  (Jan. 31, 2012).  I refer to the two Senators as the Voice of Times Past and the Voice of Times Present.

Senator  John Nelson, Times Past,  speaks from the past and echoes the pro-HOA themes of maintaining property values, of freedom of contract, and unquestioned consent to agree  and full compliance with contract law.  His position speaks in favor of HOAs as independent principalities above all other laws of the land, holding that private parties can contract to avoid the Constitution and laws of the land.

I do not mean to be disrespectful,   as the Senator appears to truly believe in his position — and we all are entitled to our beliefs — yet he  has not realized the implications of his beliefs on his duties and obligations as a state senator.   He has  failed to address the consequences and impact on society of such beliefs, which have become  ingrained and dogmatic over the many years

Senator Frank Antenori, Times Present, speaks of constitutional infringements by the HOA legal concept and of violations  of our principles of democratic government by de facto  private entities unaccountable under the Constitution. These issues were  also raised by the bill sponsor, Senator Nancy Barto. 

What is apparent in this exchange is that to resolve the alleged safety issues on street parking, the HOA simply refuses to make use of the legal vehicle of seeking planning board variations, thus making this a political power issue between public government and private HOA principalities.  Furthermore, putting “we can contract to do anything we want,” even to ignore the laws of the land, is an absurdity too often used by those seeking unrestrained power, and too  often irresponsibly thrown about.  Case law has repeatedly rejected any such unqualified authority. 

(It should be noted that CAI did not speak at this hearing, and it’s member blog did not address constitutional issues of de facto private governments seeking special treatment above the laws of the land).

What  the Voice of Times Yet To Come  will have to say depends on what occurs today, in Arizona, and  in all state legislatures across the country.   Will the 200 plus year American experiment in democratic government be extinguished by a successful second, 48 year American experiment in private, authoritarian government functioning  under fascist principles?

The bill squeaked by and was passed by a 4 – 3 vote.

 The complete public video of the hearing can be found in the Arizona Legislature video archives for that hearing (click here).   Jump to 39:00 minutes for the 30 minute exchange.  After viewing the video, you will better understand how HOAs have become a second political government at the local level, and what legislative obstacles lay in the way to susbstantive HOA reform legislation. 

At about the same time as this Arizona debate, an NPR radio talk show took place  in Charlotte, NC (WFAE,  Charlotte Talks, Mike Collins, host)  that also addressed the good, the bad and the ugly of HOAs.  It is well worth listening too, as it also addresses public policy concerns. The link can be found at the  North Carolina Coalition for Homeowners Rights website.

See also, 

1.  Evan McKenzie’s Privatopia Papers contribution to the constitutional issues debate, HOA debate: illegitimate government and invalid CC&Rs contract.

2.  HOA-Land — the failure to democratize.

NC media “tells it like it is” and reports HOA information

It is quite a pleasing surprise to see the North Carolina media cover the important HOA hearing that took place for 3 hours yesterday by the House Select HOA Committee, led by the Charlotte Observer. The NC media has lived up to its obligations to provide a free press that covers all sides of the issue, like it or not, which is necessary for the proper functioning of a democracy. That’s why “free speech” protections were made the First Amendment.

I congratulate the proactive NC HOA homeowner rights advocates for their successful campaign to get the message out. The policy makers and the buying public need the whole truth in order to make sound decisions. Among the leaders are Jim Lane, Jane Jordan and Ole Madsen. Keep it up! Keep the ball rolling, and remember Gandhi, “We must continue to provoke until they respond and change the laws.”

You know, having attended years of Arizona legislative committee hearings, every now and then I would get a whine from a legislator, “When are we going to hear the end of HOA complaints?” I answered, When the legislature gets things right and stands up for the Constitution, and that starts with an open mind to all the facts. Local community government must truly be “of the people, by the people and for the people,” and not by profit-seeking developers with their top-down cramming of covenants, and government officials selling out their obligations to the people for a few shillings.

The perceived benefits of the planned community real estate package of ‘district’ ordinances and taxes and ‘private’ amenities can remain under a government that retains our constitutional system of democracy.  There are no excuses for this not to happen.  It is only when the facts get out for an open discussion will this happen.  Thanks again to the NC media “telling it like it is.”

See, advocate’s 10-point statement to NC HOA committee,  HOAs today do not exist for the benefit of Homeowners,  Statement to NC Select HOA Committee.

advocate’s 10-point statement to NC HOA committee

NC activist Ms. Jane Jordan plans to deliver her statement to the NC House Select HOA Committee in person.

 “THESE ARE ‘OUR’ homes and not the board member’s homes. THESE are OUR monies in HOA dues and not the board’s monies. . . . There are NO EXCUSES for some of the problems that have literally traumatized our lives to a lesser quality.

Here are the areas of Ms. Jane Brawley Jordan’s 10 point program:

Disclosure

Education of board members

Audits mandated yearly

Enforcement agency

Equal representation if a lawsuit is taken on

ANTI-SLAPP legislation

A property manager’s licensing law

Oversight for fair voting procedures

No abuse by association attorneys

A support group

####

SPEECH TO THE HOUSE OF REPRESENTATIVES

 HOUSE SELECT COMMITTEE ON HOMEOWNER’S ASSOCIATIONS

 JANUARY 23, 2012

 1) THANK YOU – Thank you Co Chairs Justice and Jordan, House Representatives Burr, Hastings, Howard, McCormick, Moore, Spear, Weiss, Wilkins, Mr. Stiles and Ms. McGinnis and Mr. Attifal (sp). for allowing us as concerned homeowners to speak today. I have listened in intently to the previous meetings you held on November 16, 2011 and December 5, 2011 and was most impressed with the comments made and discussions of possible solutions. THANK YOU.

 2) INTRODUCTION

 I am Jane Brawley Jordan who lives in Charlotte, North Carolina and am a part of a homeowner’s association. I have lived in North Carolina all of my life and was born in Statesville, North Carolina and then lived in Mooresville, North Carolina until I attended college in both South Carolina, Erskine College and then graduated after transfer from UNC-Chapel Hill with a Bachelor of Arts in Education. I have resided in Charlotte, North Carolina since 1973 and have serve d in several capacities civically serving on two homeowner association boards. The first one a pleasant experience and the second board being a nightmare. This has affected the quality of my life in a most horrible way. This is the reason I am here today.

 3) ATTITUDE

 Our homes are our havens. Where we find rest, peace and social climate that is conducive to a good life. The first thing I would like to address is the attitude of the hearts and minds of only some elected board members who serve their community. Not all homeowner association boards are bad. There are some very good ones who care and show genuine concern for ALL members of the association equally. However, it is the wrongful attitudes that seek to abuse power in the huge problems among not just a few, but now citing many across our state and the already cited problems in your summary after the 2010 public hearings that pose grave concerns about all of us as present and future homeowners. Therefore the need for tangible solutions. The attitude of the heart is to SERVE . A servant’s heart. THESES ARE “OUR” homes and not the board member’s homes. THESE are OUR monies in HOA dues and not the board’s monies. Board members are entrusted to use our monies held in trust to provide upkeep of our properties and show accountability of our finances. It does not matter if they are not paid to do this work serving on a non profit. There are NO EXCUSES for some of the problems that have literally traumatized our lives to a lesser quality. Somehow the cart has been put before the horse. WE AS HOMEOWNERS FOOT ALL THE BILLS. The proper respect must be shown if HOAs are continued to exist at all.

 Therefore, I present my own ten point plan that will help to solve the problems we now face.

 1) Disclosure – of all Covenants and Restrictions and the By Laws to any potential buyer BEFORE the closing date of any purchased property. This has already been affected. GOOD JOB.

 2) Education of board members who report in to an oversight agency with area examiners for each general municipality. If the board members do not study the Chapter 47 laws and pass a test they do not get to serve on the board.

 3) Audits mandated yearly ( as is written into my HOA By Laws and I believe most of them. If a board does not comply, they are FINED by the oversight committee elected hopefully within the North Carolina Real Estate Commission. Such funds for fines being half to go to the NCREC or oversight committee and the other half to the cash reserves for the community. These audits are to be done on time and not delayed.

 4) Enforcement agency to warn, fine or remove board members who do not follow the Chapter 47 laws and their respective By Laws, using “reason” and to follow their own rules with submitted proof of these indiscretions by any homeowner . The using “reason” is where most of us are finding huge problems and where the abuse occurs. If a board does not hold the legally noticed Chapter 47 NOTICE for a board meeting with any homeowner noting any violation or concern by the board, the board is to be held accountable. That they cannot then jump to suing or fining a homeowner.

 5) Equal representation if a lawsuit is taken on as we as homeowners pay into the monthly insurance premiums and yet only the board members who are also equal homeowners get free representation. This is a conflict of interest if we are paying for the other side’s defense. We as the homeowners have to pay out of pocket but we also pay for the premiums to fund the insurance attorney for the board members. THIS IS NOT RIGHT.

 6) ANTI-SLAPP legislation that 23 other states have, …(which may be exclusive of just the HOA problems and for other problems also) .THAT “IF” the By Laws are not followed with proof, if there is no dispute resolution process that has taken place, that no retaliatory lawsuit can be filed by the board member responsible. SOMETIMES retaliatory lawsuits are taken on for a homeowner who owes NO HOA dues and even OWNS their home free and clear or not, is attacked in lawsuits only for a homeowner complaining that the board minutes are not made available, the walk through reports for violations are not made available, the audits are not made available, and the financials are not made readily available and therefore such complaints are filed with the NCREC if the property manager has a licensed realtor in the business or the Better Business Bureau then the homeowner should NOT BE SUED.

 7) A property manager’s licensing law to mandate that ALL property managers be trained, educated and licensed as to the Chapter 47 laws and that they be held accountable in order to keep their license with a process included for complaints by any submitting homeowner.

 8) Oversight for fair voting procedures with NO proxies for important agenda that needs to be discussed at the community meetings involving large amounts of money. A candidate from the board of elections could be chosen to do this as their job.

 

9) No abuse by association attorneys – Limits on what association attorneys can do as far as upping fees for foreclosure after the homeowner has agreed to pay and does so in time according to their submitted finances to show the board and the association attorney what they can pay and when.

 10) A support group to help any homeowner who does not know what to do to be able to go to for this kind of education and support with a website link for training and who to contact.

 

THANK YOU FOR YOUR WONDERFUL SUPPORT IN SEEING THESE THINGS ACCOMPLISHED so that the quality of our lives are enhanced in the state of North Carolina. That we as North Carolina can be a leader in this area and model for the rest of the nation. That people will WANT to live in North Carolina and bring their businesses here due to the timely caring responses from those elected to serve over our homeowners association. That we can be proud of our actions starting today to make for these law changes to protest us all. That some day someone will be walking down the street and be able to say,

 “I am where I am today with a quality life and still have my home due to the wonderful representatives and the caring citizens of North Carolina. “

Thank you,

Jane Jordan

HOAs today do not exist for the benefit of Homeowners

The following are  excerpts taken from the statement by  Jim Lane, Founder, NC HOA Laws Coalition, to the NC Select HOA Committee Hearing on Jan. 23, 2012.

We all look forward to our collective and joint efforts “to see the world anew” and to eliminate the Harm being done by HOAs to Homeowners, everywhere, not just in NC. . . . HOAs today do not exist for the benefit of Homeowners … which is VERY CLEAR to everyone who lives in an HOA Community.

It is the CCRs and Bylaws and the Mini-Government / Dictatorship created by our HOA “Laws” (as written by and for the direct benefit of HOA Attorneys, Developers and Property Managers) that is the ROOT CAUSE.

We are asking for a HOMEOWNER TASK FORCE be appointed by the Legislature to COMPLETELY INVESTIGATE and to COMPLETELY revamp ALL of the Laws …

Read the complete statement at  Lane.

Statement to NC Select HOA Committee

January 17, 2012

Mr. Ed Stiles
Committee Assistant
NC House Select Committee on HOAs
 
email statement

Statement to the NC House Select Committee on HOAs

January 23, 2012 Meeting

Dear Committee Members,

I am submitting this email statement for inclusion into the record for the January 23, 2012 hearing on homeowners associations. I am a nationally recognized homeowner rights advocate who believes in “supporting principles of democratic government.”

Over my 13 years of involvement in HOA reform legislation across this country, I have witnessed a slow, but steady, change in the perception of homeowner associations from “the next best thing to Mom’s apple pie” to the realization of that there are “worts” all over the HOA legal concept and statutes. The reason for this has been the extensive use of the internet by advocates, and the inability of the pro-HOA forces and national lobbyists in every state to stifle their voices. For over 48 years, since the introduction of the “HOA “bible”, the Homes Association Handbook, these forces held sway and shaped the attitudes of the public, the media, the policy makers, and state legislators. They exclaimed the virtues and benefits of the HOA scheme, and hid the worts, the serious defects, among the most egregious being the denial that HOAs are authoritarian, private, de facto governments that function as independent principalities. As such, HOAs are illegitimate local governments.

I am not rejecting the freedom of choice, if indeed that is a fact, in selecting the perceived benefits of a planned community by buyers, but the mass merchandising of these HOAs under highly questionable sales and advertising methods – misrepresentation, fraud, half-truths, false truths. As an example, no state has adopted anything close to the “Truth in HOAs Disclosure Agreement” that serves as a notice and warning of what HOA life is really about. (See, Appendix A, Model Consent to be Governed Disclosure Bill). I am not objecting to that real estate “package” of benefits, but to the form and nature of the governing body of the subdivision, commonly known as the Homeowners Association, and the adhesive CC&Rs “contract” that denies constitutional protections of due process and the equal application of the law.

HOAs are unaccountable to the state government. The statutes are unconstitutional special laws for special organizations, that reject contract law and constitutional law for the common law of equitable servitudes. As long-time advocate Evan McKenzie wrote in Privatopia (1994),

In a variety of ways, these private governments are illiberal and undemocratic. Most significantly boards of directors operate outside constitutional restrictions because the law views them as business entities rather than governments. . . . [They] are inconsistent not only with political theories of legitimacy but with the normal process by which governments are created. . . . Thus these ‘private governments’ may violate the equal protection clause of the Fourteenth Amendment. (Chapter 6).

There is no justification for the non-application of the laws of the land, and the denial of fundamental rights, freedoms, privileges and immunities for homeowners with such weak arguments as: “better landscapes make better communities,” or the shifting of residential development costs from the local municipality to the homeowners, or “they agreed to be bound.” The last of which is a mockery of justice and our system of government as it allows the waiver and surrender of rights and freedoms by the mere posting of a Declaration of CC&RS to the county clerk, sight unseen by those who will be bound by the CC&Rs, by a profit seeking developer adhesion contract.

This Committee has the opportunity to begin to set things right, to restore this country to “one nation, under God, indivisible, with liberty and justice for all,” and to remove this second form of local government that has seceded from and rejects the Constitution. The Committee will hear from HOA supporters and from self-interest groups who should, by this time, understand that they, too, are rejecting the Constitution and the principles of democratic government. And more importantly, it will hear “petitions for redress” from homeowners. Do not fail the citizens of North Carolina. Do not cause them to have to say, “Our repeated petitions have been answered only by repeated injury.”

I ask that the Committee to do justice by paying heed to those petitions by homeowners and taking on the long overdue HOA reforms being asked.

My HOA profile, Appendix B, is provided for your convenience.

Respectfully submitted,

George K. Staropoli
President