Tag: public policy

Police ignore HOA complaints with tragic consequences

This news report addresses the repeated erratic behavior of homeowner in HOA that went ignored and a neighbor is forced to defend himself. Many times I’ve been told that the police would reject complaints of assault, harassment, charges of embezzlement and theft among other complaints. They have adopted this “hands-off” HOAs policy that denies citizens the equal protection of the law.  And, county/district attorneys often tell homeowners seeking to file a complaint to first file the complaint with the police.

Given the widespread reporting of oppressive, authoritarian HOAs acting irrationally, arbitrarily, and violating the laws, the failure of the government to provide practical protections for homeowners in HOAs is tantamount to playing Russian Roulette with the lives of people living in HOAs.

 

Clashes precede man’s killing

“Days before the incident, the homeowners association filed an injunction against Gallik, who had moved in the home in May 2007.

“According to the injunction: ‘He makes verbal threats to the association’s agents and members; walks around the community with a whiteboard chained around his neck stating ‘Death to Southshore Falls,’ has strung clothing lines along the front of the property; bathes in the front driveway and in the dwelling’s gutters to compensate for lack of running water, runs a generator from the front driveway to compensate for lack of working electricity, wanders in the common area allowing his dog to defecate in the middle of the road.’”

The injunction filed by the HOA against the problem homeowner included this statement, “The police insist such assaults and threats of violence are an association matter.”

 

 

AZ judicial conduct comm. on hidden HOA attorney case: who let the cat out of the bag?

In my June 10th post, Judicial misconduct complaint filed for sealing records in AZ case against HOA attorney, I brought to your attention the fact that the records on a case involving a CAI member attorney sued for aiding and abetting and disgorgement could not be found on the court’s public access website.   Not even a notice that the case was sealed.  The complaint alleged that the “disappearance” of the records from public view was a violation of the Code of Judicial Conduct, Rule 123(d).

A response was received from the Commission on Judicial Conduct Staff Attorney who was more concerned with “shooting the messenger” rather than with taking a few minutes, like I did, and verify from the court records themselves the truth of my allegations.  Not even mentioned in her response.

My reply to the Staff Attorney, in part, reads,

The tone of the letter gives the impression of another angry person filing wild and unsupported accusations against a judge. It is condescending, insulting and attacks the messenger without any reference to conducting a duty bound investigation into the easily verifiable facts — the court records themselves.

The information that I provided is more than sufficient for a bona fide investigation of the facts by the Staff Attorney.  Just 10- 20  minutes on the Internet Pinal County case public information web page, followed by a call to the Pinal County Superior Court Clerk, as I undertook, would quickly and  independently verify the complaint (Exhibit B) that the court records were sealed in violation of Rule 123(d) – public access has been denied and denied without notice. 

The entire reply can be read here . . .

 

Does mandating HOAs using “shall” establish HOAs as state actors?

A common joke of the 1950s related to communist Russia’s 5-Year economic plans. It was a top-down plan that always failed.  The joke went:

In Russia You can buy any shoes you want as long as they are black.   Why is that? Because they only make black shoes.

Jump to 2012 America.

In America you can buy any new home you want so long as it’s in an HOA.  Why is that?  Because they only build new homes with an HOA.

 

A.                Does the use of the word “shall” establish the HOA as a state actor?

1.                  Monroe Township

I begin by an examination of the hard-core Monroe Township, NJ HOA ordinance[i] which states, in part, my emphasis,

“A homeowners’ association shall be established for a multifamily development or a development consisting of 100 dwellings or more. . . . The homeowners’ association shall be established for the purpose of owning and assuming maintenance responsibilities for the common open space and common property designed for or located within a development.”[ii]

Please understand that many states define an HOA as having common areas and amenities. Note the territorial implication of the HOA government, “located within”.)  But, the ordinance doesn’t stop there. It includes, “The organization shall incorporate the following provisions: (1) Membership by all property owners in the project shall be mandatory.” [iii]

Now, the ordinance is very craftily worded to pertain to owning property and “assuming maintenance responsibilities,” and not touching on any aspect or implication of governing.  Except, of course, the town must explain just what “assuming responsibilities” means if not managing or governing.  It could simply mean a hired hand, a contractor, if the word “responsibilities” were omitted.

The intent of the ordnance is clearly stated in subsection (E)(4), which says in part, “The organization shall clearly describe in its bylaws all the rights and obligations of each tenant and owner, including a copy of the covenant . . .  and the fact that every tenant and property owner shall have the right to use all common properties. . . .  These shall be set forth as a condition of approval and shall be submitted prior to the granting of final approval

Doesn’t this wording indicate an awareness that the HOA is concerned with more that performing maintenance functions?  Why would a planning board be concerned with the terms of a private contractual agreement beyond its sole authority in regard to property ownership and maintenance?  There are laws governing property rights and tenancy that surely would not be duplicated in the Declaration.

No, the planning board is fully aware, or else it’s intentionally negligent, of the legal status of HOA through state statutes and commonly used boilerplate declarations.  In other words, the planning board cannot escape its responsibility for requiring HOA governance by saying we don’t look at or approve of the governing documents. Regardless of board’s awareness, the mandate for submitting the HOA governing documents and the required approval by the planning board establishes the HOA as a state actor subject to the 14thAmendment.

 

2.                  Arizona mandates

Gilbert, AZ has a mandated HOA requirement that says, emphasis added,

A homeowners or property owners association shall be created to maintain and operate landscaping, open space, recreation facilities, private streets, utilities, and/or other facilities held in common ownership. The documents creating the association shall provide that this obligation continue in perpetuity. Evidence of compliance with this Article shall be submitted with an application for a final subdivision plat or minor subdivision.[iv]

 

This requirement is not as detailed as that of Monroe Township, but still centers on subdivisions with common areas and property, which defines an HOA in Arizona.  Again, as long as the governing documents cover maintenance, the planning boards ignore the other covenants that affect the homeowner’s equal application of the laws and due process rights. But the fact remains, as with Monroe Township, ignorance of the declaration does not absolve the planning board of its responsibility for establishing HOAs as state actors.

The Chandler, AZ ordinance[v] states,

40-1. – Policy.

It has become common for developers to satisfy certain of the conditions of approval for subdivisions by use of commonly owned property maintained by a Homeowners’ Association (HOA) composed of the property owners within that subdivision. These [subdivision] facilities and amenities become conditions to and a part of the approved subdivision with which the developer must comply. Without these facilities and amenities, the subdivision would not have been approved by the City and the development would not have proceeded.

It is hereby adopted as a policy of the City of Chandler, Arizona, that when Homeowners’ Associations are given such responsibilities pursuant to the zoning and subdivision approvals which allowed such properties to develop . . . .

 

It is a more wishy-washy statement, but the bottom line is that the developer will indeed form an HOA if he wishes to be approved, and not want to oversee the subdivision in perpetuity as required by the ordinance.  Here, the planning board says, No, not me! Him, the developer! His choice in establishing private governments.  This is about the same choice given to a homeowner if he wants to live in a new home, isn’t it?  And again, the planning board adopts a Not my job when it comes to approving the HOA governing documents.

 

B.                 Are the planning boards exceeding their authority by mandating HOA private governments for sub-divisions?

Part A, above, leads to the serious concern of low level divisions of a town or city demanding and establishing private governments without any oversight or accounting.  While delegating such legislative functions to a private entity is unconstitutional, the planning board itself has not been delegated authority to create such private governments over subdivisions within the state.  It has exceeded its authority!

 

For more information, see HOA Case History: state actors or mini/quasi government;

 

Notes

[i]  Monroe Township Zoning Ordinances, § 175-113. Homeowners’ associations. 

[ii] Id., subsection (A).

[iii] Id., subsection (E).

[iv]Gilbert, AZ  Zoning Regulations, Article 4.9: Common Area Ownership and Maintenance, Section 4.903.

[v]Part VI, Chandler, AZ Code of Ordinances, Chapter 40 – HOMEOWNERS’ ASSOCIATION IMPROVEMENTS.

 

Local government copies HOA government

In the June 23, 2012 NY Times article by David Segal, “A Georgia Town Takes the People’s Business Private,”  Segal asks and answers, “What is local government for? For years, one answer, at least implicitly, was ‘to provide steady jobs with good wages.’”   It reduces public government to just providing for the maintenance of the community, following the lead of the other form of local government, the private HOA regime whose purpose is to just “maintain property values.”

While the answer is in keeping with the theme of the article regarding the privatization of government services, it ignores the unique functions that distinguish a public government entity from a business, or more importantly, a membership nonprofit business.  Just what are those unique functions?

Are governments just a business?  Are businesses just a government?  Are HOAs just a business?  Are HOAs just a local government?  In his April 2, 2008 CAI Ungated blog entry, CEO Skiba writes: “Community associations are not governments . . . .  Yet they are clearly democratic in their operations.”  Skiba continues further with, “The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable. . . .”  He seems to be pleading that whatever aspect of democracy there is in HOAs, we must make serious improvements. Note his use of “some other form government” is an admission that HOAs are political governments.

I find it hard to accept the above assertion by Skiba that CAI supports making HOAs more democratic. Rather, CAI supports the top-down imposition of UCIOA laws that blatantly contradict its other pronouncements that HOAs are the town hall ideal of democratic governance.  And it contradicts CAI’s documented positions before the courts and state legislatures opposing constitutional protections for homeowners in HOAs.

Political scientists (among them Wayne Hyatt, Evan McKenzie, and Steven Siegel) have accepted a compromise position that HOAs are a sui generis entity, a unique combination of business and public government functions that require a new set of laws to establish a just and fair governance of people living in an HOA controlled community.  Yet, since Siegel’s seminal paper of 1998 (Wm & Mary Bill of Rights Jnl), the laws remain pro-HOA without HOA accountability to the state, and without the equal protection of laws that apply to all other citizens except those living under HOA regimes.

A detailed discussion of the de facto status of HOAs as state actor governments can be found in The Foundations of Homeowners Associations and the New America, “Part III, American Political Governments.”

 

Complaint filed with NJ Supreme Court for CAI lack of “candor to the tribunal”

A complaint was filed with the NJ Supreme Court against CAI for a lack of “candor to the tribunal” with respect to statements made in CAI-NJ’s amicus curiae brief in Mazdabrook v. Khan.  Excerpts from the complaint letter follow.

________________________________________________________

Two attorneys for the Community Associations Institute (CAI) NJ Chapter, Karpoff and Macysyn, sought and received permission to file an amicus brief and to make oral arguments. They signed certifications as to the truth of the statements made and content of their brief. 

I submit that the arguments to file a brief and to make oral arguments contained misrepresentations and false and misleading statements as to the true nature and purpose of CAI.  These misrepresentations lead the Court, and amicus readers, to believe that CAI is not in a conflict of interest position as its true interests, which oppose the interests of the homeowners associations and the of HOA member homeowners. 

The Macysin certification says the brief is brought on behalf of CAI itself, as a friend of the court to help it in its decision. Yet, throughout the certification one is confused as for whom CAI is representing: CAI itself, the HOAs, or the homeowners.  These are conflicting representations.

 In the 24 paragraph certification, Macysin fails to inform the Court of the legal tax exempt status of CAI as a 501(c)6 tax-exempt organization  as of 1992. CAI chose the vendors and became a trade group so it could avoid the limitations of an educational organization and become actively involved in lobbying in all the states. (The usual course of action is for the consumer group, which is seeking assistance, to set up its own nonprofit educational organization. It then would invite the vendors as affiliate or associate, second-class, members).

 It should be clearly understood that the production of harmonious and vibrant communities is juxtaposed to the true interests of the CAI members.  Rather, the best interest of its true members is to keep the HOA heavily dependent upon the services of its attorney and management members, to foster adversarial relations, hostility and divisiveness, and to deny democratic reforms under the state and US Constitutions.  The CAI record before state legislators and in the courts, including here in New Jersey, speaks for itself. 

The CAI-NJ prepared HOA board resolution (Appendix B, page 6), gives the impression that the HOA board’s decision to join CAI is a valid act.  What this resolution accomplishes is to allow the HOA board to address homeowner concerns about a conflict of interest.  It provides the board with a reasonable justification for joining CAI — education for the benefit of the HOA.

However, the basis for a board to sign-off is that CAI is the “Great Educator” and that CAI has no conflict of interest as a business trade group whose tax-exempt grant is to help its members, not consumer HOAs. The resolution does not state that CAI is a 501(c)6 trade group or that since it was created in 1973 to solve problems with HOAs it has failed to do so for the past 39 years, or that it has repeatedly opposed constitutional protections for homeowners. 

Sanctions were sought against these CAI attorneys.