Tag: Texas

state legislature not concerned about the plight of HOA members

Dianna Wray does an excellent, detailed and historical presentation of the unchecked and unregulated power of de facto HOA governments operating outside of constitutional protections – the lack of due process and the unequal equal protection of the law. Without mentioning the above, Wray presents several stories of Texas HOA abusive power that strikes to the heart of homeowner mistreatment and injustice, as the legislature ignores his plight as if Texas were a banana republic. And rightfully so, she extends these unthinkable conditions to occur in all states.

The author warns her readers that,

HOAs are almost completely unregulated and the law is heavily weighted on the side of the homeowners’ associations — they almost always win. In Texas there is no regulatory agency overseeing homeowners’ associations. Most county attorneys and district attorneys won’t get involved with an HOA unless there’s evidence of criminal wrongdoing, and the website of the Texas Attorney General’s Office explicitly states that the office does not investigate homeowners’ associations and advises homeowners to get a private attorney. Most private attorneys conclude that the business just isn’t worth it.

And that goes for all state attorney generals.

She quotes Texas attorney David Kahne (co-author of the AARP bill of rights for homeowners, among other things).

Typically by the end of the lawsuit, it’s been such a hassle, most of the lawyers representing homeowners swear they’ll never do it again. . . . It’s lawsuits over grass growing in the driveway cracks and people who have fallen behind on their dues because of real problems in their lives and then they end up with thousands of dollars of debt, most of it owed to the attorneys.

Wray adds that Evan McKenzie argues,

that HOAs erode homeowner rights because they create a system in which the HOA is never held accountable for its actions. ‘Why do people think you can live in an urbanized area without any form of government except for these privatized entities that are under no legal obligation to uphold your rights?  (My emphasis).

Readers of this commentary must understand, and must understand very well, that the laws on the books in all states are grossly inadequate for the purpose of compliance.  When laws, like HOA laws, fail to provide effective enforcement penalties against perpetrators, like HOA boards, they are merely recommendations and suggestions.  The legislators are relying on the good will of HOA boards, attorneys and managers to voluntarily comply not only with the letter of the law, but with the intent as well.  The record clearly shows that this is not so!

Obviously in disregard of the above criticisms of the HOA-Land legal structure, HOA supporters respond with the same ol’ platitudes. From the HOA attorney,   “Believe me, a lot of people complain about HOAs, but the alternative is chaos . . . It seems like I have a really mean, nasty job, but if somebody doesn’t do it, suburbia would collapse.”  

From the Houston Texas CAI chapter Executive Director,

Without HOAs, common areas wouldn’t be kept up and people could paint their front doors scarlet, park boats on their lawns, put up countless yard signs, keep any number of pets and have six-foot-tall topiary rabbits in their front yards, destroying the look and value of neighborhoods.

They are resorting to fear-mongering!

These supporters, including CAI, are saying that they do not trust their fellow Americans and concerned people must resort to authoritarian contracts and strict enforcement of the rules in order to have a healthy, desirable and joyful community. Can you believe that? Talk about breeding hostility and division among your neighbors. One false move, a report by any “kindly” neighbor, can bring down the wrath of the HOA enforcers.

The author reminds of events in Texas long forgotten or not known to the people, even in Texas, of the battles of Winonah Blevins (2002) and Geneva Kirk Brooks (2004), pioneers in the fight for homeowner rights. Before these cases, won by the homeowners, there was the outrageous Texas Supreme Court decision in Inwood v. Harris (1987) in which the Men in Black ignored the explicit wording of the Texas Constitution regarding foreclosure protections and permitted Inwood to foreclose on Harris. (A few years later, apparently in response to the growing outcry of the court’s shameful special interest decision, the legislature amended the constitution to validate the Harris decision.)

 While the article is lengthy, it is not a manual of how to get along in HOA-Land and remain happy by just following the rules. Or a list of “should-be” or “ought-to-be” statements that are unattainable and beyond the norms of society, like you must accept the surrender of individual liberties for the greater good. It deals with the reality before homeowners and the intentional failure by state legislatures — in all states — over the years to stand by the people and not the special interests.

It is a “telling it like it is,” or that it could easily be that way at any time in your HOA with a changing of the HOA board, or a new attorney, or a new management firm. The homeowner, as presented in Dianna Wray’s well written article, lives at the suffrage of the board; helpless to defend themselves against HOA abuse without a costly battle. Remember that well!

 

Tipping Point: In Huntington Village, the Community Association has All the Power, Dianna Wray, Houston Press ( http://www.houstonpress.com/news/tipping-point-in-huntington-village-the-community-association-has-all-the-power-7998755, Dec. 15, 2015).

The HOA Enlightenment Movement continues to spread: just legislation for homeowners

A review of new legislation being considered in many state legislatures clearly shows a growing trend toward justice and fair play for homeowners.  Substantive HOA reform bills can be found in Arizona, Colorado, Florida, North Carolina and Texas to name those are known to me.

Arizona. 

SB 2292 seeks to end mandatory HOAs for new subdivisions.

SB 1278 reasserts local municipality control of public streets in HOAs.

Colorado.  HB 1276 seeks to restrict HOA foreclosures by setting forth strict procedures for HOAs to follow if they seek to foreclose on a homeowner that include restrictions on the sue of collection agencies, the adoption of a formal payment plan, notice to delinquent homeowners stating the exact amounts owed, and the procedures to resolve issue before any action can be taken..

Florida.

SB580 places restrictions on management firms.

SB 596 creates a powerful, bona fide state agency to regulate HOAs and that can make rules, to investigate complaints and to seek penalties and restitution in civil court.

North Carolina.  HB 175 is another foreclosure reform bill that prohibits assessment foreclosure, but allows HOAs to obtain court judgments for the assessments owed.  It requires a notice of a claim of lien to be served on the homeowner before any action can be taken.

Texas.  HB 3803 seeks state oversight by allowing the attorney general investigation of financial wrong-doing by the HOA, with penalties.

Much, much more legislation dealing with substantive HOA reforms is needed.  This legislation would deal with fair and just due process procedures in HOA disputes, foreclosure reforms, clean elections procedures, meaningful enforcement against HOA violators, and ending the “consent to agree” misrepresentation in the sale of a home in a HOA.

 

For more information . . .

the age of HOA enlightenment is coming?

And the HOA Enlightenment Movement grows . . .

Court decisions: HOA Enlightenment Movement vs. the Dark Ages

Az & TX legislators criticized for failures to support homeowner rights in HOAs

I let the Arizona Legislature know that advocates are not as stupid as they would like to believe (See Observations on AZ legislative treatment of HOA reform bills We know what is going on and has been happening for years with respect to legislative support for private government HOA regimes. HOAs that deny homeowners their rights and freedoms while imposing harsh penalties only on the members and not on the HOA boards.

The attitude of the legislatures appears to be: The HOA must survive at all costs – it’s a matter of national and state security so constitutional protections be damned.

A leading Texas advocate has added to this exposure of legislative cooperation, support, and coercion to permit HOAs to rule without accountability. Read her Open letter.

There are 4 main constitutional issues that are continually ignored by the legislatures: clean elections procedures; due process and the equal application of the laws; ‘consent to agree’ fallacy; and that the Constitution is only about ‘no contract interference.’ These issues must be addressed and reforms instituted, but they are not addressed because the legislators well know that they are defending the indefensible if they speak out.

It falls to the true advocates for HOA reform to have the courage to speak out about the reality of the HOA legal concept. They need to set the record straight about legislation supported and promoted by the so called “stakeholders”, the vendors (read as HOA attorneys and managers) who make money from the unrepresented and truly affected class, the private property owners, the homeowners.

Send a message to your state legislature.

In HOA-Land, Halloween is verboten!

Texas Neighborhood Tells Family to Remove Halloween Sign From Yard.

This is one very serious aspect of how HOAs have redefined the American community, not only its landscaping aesthetics, but America’s social and political customs, traditions, and system of government. And all made possible by cooperative and biased state legislatures and courts that uphold the CC&Rs as if they were a contract, yet fail to apply “Contract Law 101” to these supposedly valid contracts.

The application of contract law, and constitutional law, would immediately invalidate the CC&Rs and the legal HOA scheme based on the seminal Homes Association Handbook of 1964.

Welcome to the New America of HOA-Land.

Who is to be held accountable for continued HOA problems?

A Texas legislator bemoaned to the media the other day, “a decade and a half of lawmaker discussions with little progress.”  Another called HOAs “at least quasigovernmental,” and that “the scales are still tilted to HOA protections.” 

The Texas HOA Reform Coalition group wrote on March 19, 2011, 

But remember what legislators say in public and how they vote can be different when push comes to shove.  While legislators may feel more HOA reform is needed and say so publicly, in the end many legislators have other priorities they are unwilling to sacrifice in order to take a stand against the well-financed HOA lobbyists, lawyers, and more importantly the Texas builders who impose HOAs on subdivisions as a funding source.  (Texas House Committee Lashes Out Against HOAs).

This is just one recent example of the reasons that HOA problems have continued for over 47 years, since the introduction of the “game plan” by the Urban land Institute in 1964 (See TB#50: The Mass Merchandising of HOAs by ULI).  For  over ten years homeowner rights advocates have appeared before the state legislatures and presented their just and legitimate grievances in the states with heavy concentrations of HOAs — Florida, Texas, Arizona, California — for naught.  For over ten years advocates have “petitioned for redress in the most humble terms, our repeated petitions have been answered only by repeated injury.”  (Decl. of Independ.).  Now this social and political cancer has spread to such states as Montana, Washington, Alabama, North Carolina, Nevada, Colorado, and Pennsylvania to name a few.

The cause of the continued protection of these private, authoritarian governments that deny constitutional protections for homeowners, and  are allowed to operate unaccountable to the state, can be laid before each and every state legislature.  They and the individual legislators — excepting those too few individuals who had attempted to bring about much needed reforms, but who have attained very limited results against the strength of “the system”  — cannot say in all honesty, “not me, him or them.”  It is each of them who are accountable for the repudiation of our democratic system of government, much in the same manner that the German people succumbed to the National Socialist Party with its strident corporate supporters and were led astray.  (See section 5 of,  HOAs in America: the illusion of democracy in a dysfunctional republic).

It is well beyond the time for state legislators to see the reality before them and to make amends to the  good people of their state.  Information abounds in these various reform groups and on their internet web sites, available to those who truly seek a just and legitimate state government, and a local government answerable as all state entities are answerable to the Constitution.  No more shall private contracts be used as a devise to subvert the Constitution and our democratic form of government for their own persona agendas.