Tag: public government

The HOA climate is based on fears and distrust giving rise to strict enforcement as necessary for compliance

 

In the real world of HOA governments, the climate of the community is based on a fear and a distrust of one’s neighbors. This fundamental basis for HOAs is supported by the following commonly expressed objectives of HOAs. We’ve been told, as well as having been set down in the declaration, that the purpose of the HOA is 1) to maintain property values first and foremost, which requires the enforcement of the governing documents, and 2) to provide for the general welfare of the members in terms of rules and regulations for an orderly community.   It implies that the survival of the HOA depends on an authoritarian government to coerce compliance with the objectives of the HOA state.

The climate of the HOA is formed by the attitudes, beliefs and values of its members who distrust their neighbors because their neighbors will,

1.      paint their house pink, or polka-dotted,

2.      repair and maintain their vehicles on their front lawns in front of their $200,000 homes,

3.      not properly maintain their homes and lots as determined by the HOA,

4.      refuse to obey the rules and regulations, which requires the application of penalties, as severe as may be required, to obtain compliance with the rules and regulation, and

5.      refuse to make timely payments of their assessments, for which there are no justifiable exceptions or excuses.

 

What is noticeably absent from the purposes of the HOA government are any references to the establishment of healthy, desirable, and vibrant communities based on the US Constitution with its protection of individual liberties.  Also noticeably absent from the above are any statements to the effect that HOA members are not protected by the application of the 14th Amendment, as they would be protected if the HOA were a public entity.  However, statements to the contrary have been made giving the appearance and illusion that the HOA provides the same democratic protections as found in the public domain, simply because members can vote for the board of directors.  This is decidedly false!

 Considering the above, the climate of the HOA is one of hostility, distrust, coercion to comply, and the fear of a decline in property values that necessitates an undemocratic, authoritarian government for its survival.   But, it doesn’t have to be this way.  The subdivision real estate package can exist without the HOA form of governance that is based on the distrust of its members.  But, the HOA cannot exist without the covenants running with the land as found in the declarations of covenants, conditions, and restrictions.

See also, Proposed HOA Study Committee issues of substance, and A further explanation of HOA Organizational Development

HOA democracy at work: dysfunctional adoption of amendments by minority vote

 

OPEN LETTER TO  TERRAVITA CA MEMBERS

Understand what a YES vote means for Terravita and your image as a citizen

Summary

The writer provides an example of how HOAs create a dysfunctional, un-American community, using arguments against the adoption of CC&Rs amendments on two occasions by the Terravita CA in Scottsdale, AZ.  In the first instance, amendments that violated Arizona statutes in regard to the content of the ballot were approved in 2010. One non-disclosed amendment made significant reductions in the requirement for adoption of future CC&Rs amendments, from a supermajority vote to a minority vote.  (In 2011, the Legislature defeated a CAI drafted bill that would allow for minority control of HOAs). 

The current amendment reflects an undisguised intent to punish one member for filing Office of Administrative Hearings (OAH) Petitions against Terravita.  Attorneys are not awarded fees at OAH because they are not required, yet the poorly constructed amendment removes attorney fee awards in civil court actions.  As a result of the approval of the non-disclosed “minority control” amendment in 2010, a minority of only 307  out of 1380 votes will be required to adopt this Board approved punitive amendment. 

Without any prior open discussion or debate, the distributed Absentee Ballot is one-sided in favor of the Board without opposing arguments. Adopting these amendments by a minority of members reflects an un-democratic and dysfunctional culture within Terravita.  The objectives of the “corporate state” are primary and individual property rights are secondary. Members are urged to reject the amendments.

Read the full letter here . . .

HOAs are like closely held partnerships — beware

In these troubled times — and nobody could ever believe that “heaven on earth” HOAs would ever encounter hard times — who are the financial backers of last resort? Will the state come to the rescue as NY State did with NYC in the 1970s, or as now being contemplated with Detroit? Or will the state use eminent domain to clear out the deteriorating landscape?

Answer: “None of the above” is the most likely scenario.

Prof McKenzie brings a dose of this harsh reality with his comments in a USA Today piece, Municipal duties move to ‘burbs as HOAs must step in:

“It’s the most dramatic privatization of local government services that we’ve ever seen. Transferring these responsibilities to homeowner associations places more of a financial burden on individual homeowners and drives up the overall cost of housing. The costly repairs of aging streets or retaining ponds can become too much for a small group of residents in the community, particularly as many HOAs continue to reel from the lost revenue created by foreclosures. I just think as a short-term solution to the fiscal problems of cities, what they created potentially is a long-term problem. At some point, my question is this: ’Is not the responsibility going to come back to the municipality? They’ll have slums on their hands.’”

In 2008 I wrote in Why should we bail out HOAs?,

 Those in HOAs wanted a private community, free from government interference. Well now it comes time to pay for your own private way. . . . and homeowners must now pay for their private government failures, and penny-pinching attitudes.

It should be understood that the HOA is a communal society and very much like a partnership where all the members are collectively responsible, under law, for the obligations of the HOA.  Those who can pay will pay, and those who can’t pay are “covered” by those who can.  Furthermore, like a close-held small business, exit from the “business” is very difficult, especially without financial impact on those seeking to exit.

And recourse to additional funds comes only from the members who have “deep pockets” to carry others. That’s why in partnerships each partner must be well-heeled, and is examined for this purpose, so not to have an impact on the other partners — a business truism neglected by the HOA advocates.

Foreclosure and default judgments may make members feel better, but don’t really solve the problem.  There are no backers of last resort for HOAs!

The FEDS must restore law and order in secessionist HOA governments

The following is my comment to a post by Evan McKenzie on his Privatopia Papers blog, Las Vegas HOA corruption probe continues.  In his post, Prof. McKenzie raised the question of federal congressional hearings on HOAs.

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I think it is not only time for federal intervention, but well past the time.  There are a number of reasons.  First, as I wrote on my blog, people living in HOAs are still citizens of the US and of their respective states, not having waived or surrendered their citizenship. State legislatures have ignored not only the US Constitution and Bill of Rights, but their own Declaration of Rights as found in their state constitutions.  They have abdicated their responsibilities to their citizens.

Second, each state has its own set of laws governing HOA private governments creating a confusing and conflicting state of affairs as to what is law and what is not law. It depends on the state you are living in.  Only the federal government — and not a national lobbying organization nor a uniform laws commission that have been devoid of any homeowner representation —  can legitimately set a single, comprehensive set of laws governing the rights, freedoms, privileges and immunities of citizens. 

Third, a decision to settle the issue of  HOAs as state actors or as de facto government entities must be made, and that can only come from a decision by the US Supreme Court upon a complaint filed by the DOJ.  Can HOAs exist as a government entity?  Why not?  If not, then what? 

Understand, and do not be confused by the blurring of definitions, that the homeowners association is the governing body over a subdivision subject to a Declaration of Covenants, Conditions and Restrictions (CC&Rs).  The planned community development is the subdivision’s real estate “package” setting the amenities, housing, landscaping, common elements, and infrastructure that also mandates an HOA form of private governance. 

Fourth, it is an issue affecting some 20% of the US population, a percentage greater than the percentage either for the Hispanic or the Black minorities.

It’s time to bring unity to this country and end subdivision governance by HOAs that create independent principalities.  The planned community development can remain under a democratic form of government subject to the Constitution.  And that must come from Washington.  It can start with hearings to air those constitutional issues that have been avoided by every state and court for far too many years.

AZ looking at special taxing districts for certain HOAs

A number of legislators are behind HB2474, a bill that restricts planning boards and municipalities from mandating HOAs unless the development has one of the following: a pool, a clubhouse, a lake, a golf course, or one of a few other amenities.  If not, which pertains to those developments with just common areas or smaller amenities than those required, any proposed planned community must conform to Title 48, Special Taxing Districts, Chapter 4, Municipal Improvement Districts, or Chapter, County Improvement Districts, and be a government entity.

I have urged such an approach over the years as uses existing law and creates a government entity, subject to the 14th Amendment.  The Representatives are Townsend, Orr, Stevens, Borrelli, Boyer and Petersen.

The short bill reads:

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 9, chapter 4, article 6, Arizona Revised Statutes, is amended by adding section 9-461.15, to read:

 9-461.15. Planned communities and homeowners’ associations; limitation; municipal improvement districts

 A.     The planning agency of a municipality in exercising its authority pursuant to this title shall not require as part of a subdivision regulation or approval or a zoning ordinance that a subdivider or developer construct or establish a planned community as defined in section 33-1802 unless the planned community association owns or is otherwise liable for any portion of the costs of any one or more of the following special features:

 1. A golf course.

2. One or more lakes.

3. A swimming pool with an area of more than one thousand two hundred square feet.

4. A clubhouse or other community building that is more than two thousand five hundred square feet in size.

5. An orchard or other agricultural feature that in aggregate covers two acres.

6. An equestrian area or facility.

7. A landing strip, runway or other similar feature designed to be used for aircraft.

8. A commercial property.

9. A public or private school.

10. One or more churches.

B. For any proposed planned community that does not contain one or more special features as prescribed by subsection A of this section, the municipal planning agency shall require the formation of a municipal improvement district pursuant to title 48, chapter 4.

 Sec. 2. Title 11, chapter 6, article 1, Arizona Revised Statutes, is amended by adding section 11-810, to read: [Reads as above, except a conformity to Chapter 6 of Title 48].

 

As a reference, please see my 2004 Commentary, A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.