Tag: restatement of law

Letter criticizes CLRC rewrite of Davis-Stirling (HOA) statutes

Below are excerpts from my January 30th  4-page letter to CLRC.

“I read Ms. Vanitzian’s LA Times column of December 29, 2013, Attempt to Simplify California Condo Laws Ends in Confusion and your response contained in MM14-09. As you may be aware I commented on her article in two parts. . . .  If you are looking for facts, allow me to introduce a few.  I recall Susan French’s study in 2000 (H-850), at the request of CLRC, that started the ball rolling ‘to clarify the law [and] establish a clear, consistent, and unified policy with regard to formation and management of these developments.’ 

“Still, much of her report aside from the need for clarity, Part II, sections C and D, called for protections of homeowner rights and a bill of rights statute in the rewrite of Davis-Stirling. . . .  Whatever happened to the proposed ‘Chapter 2, Members Rights, Article 1, Bill of Rights,’ (MM06-25)?

“There was my letter (MM05-25s1) arguing for the need for this equal rights chapter, to which you answered with, ‘Beyond the scope of this project’ even though French had recommended protecting homeowner rights. . . . It is obvious that this rework by stakeholders without meaningful homeowner input easily leads to clarifications and simplifications as interpreted solely by this group, from its perspective, which would not protect the homeowner. The new D-S cannot be seen as the result of an unbiased effort and with integrity.

“The approach used by CLRC has the smell of corporatism, the rule by a handful of corporations.  It is a form of government that flows from fascism as defined by its founder, Italy’s Benito Mussolini, Il Duce.  ‘Fascism combats the whole complex system of democratic ideology, and repudiates it . . . . Thus understood, Fascism is totalitarian, and the Fascist State . . . interprets, develops, and potentiates the whole life of a people.’

“CLRC responded with, ‘However, a bill of rights would probably go beyond the substantive rights that are currently provided in the law’ (MM05-03), but in the next sentence dismissed the US Bill of Rights as non-existent substantive law. The obvious answer – as there were a number of published books, papers and journals from nationally recognized researchers and political scientists relating to this issue – was to recognize that indeed HOAs were de facto governments and to subject them to the Constitution.”

****

The cry “no government interference” while accepting HOA private government interference is irrational.  This acceptance of undemocratic, authoritarian HOA government with less protection of individual rights and freedoms than public government is a rejection of the Constitution, the Declaration of Independence, and the Bill of Rights. These people have lost their common sense!

Neither CLRC nor CAI will go down in history as Heroes of the American Republic, but perhaps may be remembered as Heroes of HOA-Land. 

The complete critical letter can be found at MM14-09s1.

What is this “association law” thing all about?

In the TimesDispatch internet column, “Housing”, two attorneys talk about “association law” (Mercer, Trigiani are guiding voices in homeowner association law). They are real estate attorneys. 

He [Mercer] and his business partner, Lucia Anna “Pia” Trigiani, with offices in Alexandria and Richmond, are considered the top Virginia lawyers in their field, their peers say. . . . “They are a major force in what goes on with association law, and they are equally good at what they do,” [a real estate attorney] said.

But the featured spokesperson, Trigiani, is not identified as a CAI member who received an outstanding person award this past April from CAI, the national lobbying organization for HOAs, the Community Associations Institute.

Lucia Anna “Pia” Trigiani, Esq., a principal with the Virginia-based law firm MercerTrigiani, received one of CAI’s most prestigious honors April 19 at the organization’s 2013 Annual Conference and Exposition. (Trigiani, Dyekman Among Members Honored by CAI).

What is not made clear is just what association law is?   It is not a recognized classification of law, but one promoted by the legal-academic aristocrats and CAI.  (“Community Association Law Seminar, Jan. 23–25, 2014 | Las Vegas, NV.”)  The massive Restatement of Law series consists of some 96 volumes covering 26 categories of law, but no “association law” category.  In fact, laws pertaining to HOAs and covenants/servitudes, the legal basis for HOA authority, can be found in the Property: Servitudes series.

From my research into HOAs reading law encyclopedias, treatises, journals, court cases, legislation, articles and books — I’m not claiming to be an expert, but well read — association law appears to be a conglomeration of constitutional, property, contract, corporation and tort law.  These laws are cherry-picked to support the legitimacy and validity of the Declaration of Covenants, Conditions and Restrictions (CC&Rs) that is the fundamental basis of HOA legal authority.  Whatever aspect of each of these laws that serves to support HOAs is incorporated into association law. Where there are conflicts with laws or contrary laws they are ignored, or association law is declared superior, or first modified and then incorporated into association law. 

Attorneys like to promote association law as sui generis, or a unique thing in a class of its own not subject to other laws.  This new thing, this association law, is an attempt to establish as legitimate and binding a new set of laws that conflict with and repudiate the Constitution.  Laws that distinguish and repudiate the fundamental principles of our system of government and principles of justice, derived from the organic law of this country – the US Constitution, its Bill of Rights, and the Declaration of Independence.  And for obvious reasons — for domination, power and control.

In his seminal book, Privatopia: Homeowners Associations and the Rise of Residential Private Government, Even McKenzie wrote in 1994,

HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments. . . . The balance of power between the individual and the private government is reversed in HOAs. … The property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander.

And this is the purpose in establishing “association law” — to avoid constitutional protections, to deprive people of their life, liberty, or property  without due process of law, and  to deny homeowners of the equal protection of  the laws that apply to all public bodies.

 

See  The questionable role of HOA attorneys

send a wake up call to the US Supreme Court on HOA defects

I just read the 23 page US Supreme Court amicus brief[i] for The Cato Institute in Mariner’s Cove v. the United States, No. 12-1453, written by an illustrious group of legal-academic aristocrats. Let me make it quite clear at the start that I am not part of that group, or even an attorney, so I don’t have a built in “good ol’ boy” bias.

Selective citations and quotes were made from a number of cases, journals, and books including those of Evan McKenzie, Paula A. Franzese, and Steven Siegel.  (They wrote a critique of the NJ Supreme Court Twin Rivers decision, and other works, but you wouldn’t know that from the quotes).  Also quoted was Susan French who made that comment, not quoted in the brief,  in the Forward of The Restatement (3rd) of Property: Servitudes that, “Therefore this Restatement is enabling toward private government.”

My activist take on the brief can be summarized quit simply as:

1.         HOAs are growing faster than the rabbit population.

“The number of citizens opting to live in community associations—and the extent of commerce affected by such arrangements—is sure to keep growing, as the majority of new housing built in the past three decades is subject to association arrangements.”

 2.         The people love HOAs. “More and more citizens choose to enter into these property-rights-sharing arrangements because they provide substantial benefits.”

 3.         HOAs and local municipalities have a beneficial symbiotic relationship for the betterment of the community. 

 “Community associations provide a variety of private and public benefits, including increased property values, greater efficiency in the delivery of services, and lower costs to the public.

 “Community associations offer such benefits to local governments that developers are increasingly required [sic] to structure proposed housing developments as community associations as a condition of approval.”

 4.         That it’s only fair for taxpayers to pay the HOA for the loss of income. 

“By shifting a greater burden for paying for such services to the remaining members of the association without compensation, the Government’s taking here presents a textbook case of “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

“The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, as it does from technical concepts of property law.”

 

Now, from these quotes as a good sampling, the 9 Men in Black cannot help but think that HOAs are the next best thing to heaven on earth. They would have no clue whatsoever that there is “trouble in River City.”  I would venture that they have no knowledge of the happenings and goings-on in HOA-Land, and would have to rely on the self-serving Cato amicus brief.

What is needed is a response showing the other side of HOA-Land that can be obtained from some of the same authors used by Cato, McKenzie, Franzese, Siegel and others. Court cases can be cited like the horrendous Poris decision by the Illinois Supreme Court, and the Wittenberg decision by the California appellate court, to name a few.  Or how about asking the Justices to think about, and asked to explain, The Truth in HOAs Disclosure[ii] as a starting point.

We have an opportunity to be heard by the US Supreme Court!

WHAT IS IMMEDIATELY REQUIRED IS TO INFORM THE SUPREME COURT JUSTICES of loss of rights, privileges and immunities of citizens under a despicable argument of a bona fide and legitimate consent to be governed.  I am not a lawyer.  I cannot file an amicus brief!

This is a very good time to act and be heard!

 

Notes

When can a homeowner withhold HOA assessments?

In January the Illinois Supreme Court agreed to hear the condominium case, Spanish Court Two Condominium Association v. Lisa Carlson, No. 115342, that breaks with the commonly held legal doctrine that HOA members are not permitted to withhold paying assessments, even when the HOA has failed to make necessary structural repairs to the condominium. Courts have held that HOAs are subject to servitudes law foremost, and that the common good required for the survival of the HOA is paramount.  Therefore, payments must not be withheld in spite of any outstanding controversy.

 In Spanish Court the appellate court held that a HOA condominium owner could withhold paying assessments because the relationship between the owner and HOA was similar to that of a tenant and landlord.  The contract in both situations involved mutual promises of making payments in return for HOA services to maintain and repair the property.  The court held that under contract law the withholding of payments was permitted. This decision broke with precedent, bringing justice to homeowners against special laws for HOAs.

 The courts in other cases and in other states have held that the declaration of Covenants, Conditions and Restrictions (CC&Rs) are a contract to be interpreted as a contract, but then apply servitude law over contract law, and even over constitutional law.  (See the Restatement Servitudes, § 3.1, comment h and§ 6.13, comment a).

 For example, this holding stands in contrast to the January 2013 Illinois Supreme Court ruling in Poris v. Lake Holiday POA (No. 113907) that allowed HOA security personnel to stop and detain drivers who are violating HOA rules, and not municipality ordinances. Here, servitude law prevailed over constitutional law.  And, in 2007 the Twin Rivers HOA (NJ) free speech case (CBTW v. Twin Rivers, 929 A.2d 1060) held that the business judgment rule would protect homeowner rights, and that there may be some instances where constitutional concerns could come into play.

 The Illinois appellate court admitted to the fact that its opinion stood alone in favor of the homeowner and contract law when HOAs are involved.  If the preponderance of the cases is to control, then homeowners can expect an Illinois Supreme Court reversal of the appellate decision as it did in Poris. Homeowners and justice should not be too enthusiastic about the right to withhold assessments in HOAs.

CC&Rs and waivers of constitutional rights in HOA-Land

This June 13th extremely important NJ Supreme Court opinion in Mazdabrook deals with the fundamental constitutional question that the homeowner had waived his rights when he agreed to the CC&Rs  covenants, which are broadly stated, vague, or implied. I have repeatedly argued that homeowners do not!  This opinion will have national impact as other states will follow suit.

Mazdabrook involved  the right of a homeowner to place political signs on his  private property.  The NJ Supreme court said there was no waiver of free speech rights.

Moreover, Khan did not waive his constitutional right to free speech. To be valid, waivers must be knowing, intelligent, and voluntary, and a waiver of constitutional rights in any context must, at the very least, be clear. Khan was not asked to waive his free speech rights; he was asked — by different rules in three documents — to waive the right to post signs before getting Board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights. . . . . Instead, the exercise of those rights can be subject to reasonable time, place, and manner restrictions. Finally, covenants that unreasonably restrict speech may be declared unenforceable as a matter of public policy.  (P. 5).

In other words, that  waiver must meet specific requirements, including an explicit statement of a waiver rather than an broad interpretation or implied waiver as is the current status of CC&Rs.  However, understand that rights can be waived if these requirements are met.

Waiver is the “intentional relinquishment or abandonment of a known right or privilege.” Although rights may be waived, courts “indulge every reasonable presumption against waiver of fundamental constitutional rights.” To be valid, waivers must be knowing, intelligent, and voluntary.

The NJ Supreme Court seemed to have educated itself about the spread of CC&Rs with its boiler-plate wording that imply or are interpreted as a waiver, and takes a slap at comment h under § 3.1, Validity of Covenants (Restatement (Third) Property: Servitudes), that argued for the doctrine of equitable servitudes (covenants) to be held superior to the Constitution.

 The proliferation of residential communities with standard agreements that restrict free speech would violate the fundamental free speech values espoused in our Constitution — the “highest source of public policy” in New Jersey. (P.11).

Validity of CC&Rs to bind

Not addressed and unanswered in this opinion is the fundamental question, by extension of what constitutes a waiver, is the question of the validity of the CC&Rs. Is the doctrine of constructive notice sufficient for the CC&Rs to be held as a binding contract?   If the  CC&Rs are held as invalid, then the question of the waivers of rights becomes moot.

How can the simple notice to the county clerk bind anybody to anything, and be considered a waiver of any right or an agreement to be bound in general?  Especially when it is required that, “To be valid, waivers must be knowing, intelligent, and voluntary.”  There is not even a warning in bold, capitalized, large font stating, at purchase time, that the “Taking this deed alone binds you to the CC&Rs sight unseen, without having to read, sign or agree to it.”

Background information.  This case made references to the Twin Rivers free speech case of 2007, the controlling NJ Schmidt case (as did Twin Rivers), and was also based on violations of the NJ Constitution.  Once again, ACLU and The Rutgers Constitutional Law Clinic, Frank Askin Director, filed an amicus curiae brief.  NJ CAI filed an amicus in opposition.  Both were allowed to present oral arguments on the question of  waivers of constitutional rights under HOA CC&Rs.  It is legal, but not binding precedent outside of NJ.

See HOA member Declaration of US and State citizenship.