HOA Board Education or Indoctrination?

Donna DiMaggio Berger of Florida’s CAN HOA advocacy group wrote about the increasing numbers of board members seeking to be educated in HOA matters and in the affairs of HOA-Land (Do most Condo & HOA Directors want to be educated?).  I agree with Donna that these private government officials need to be educated, because unlike pubic government officials there is no long term infrastructure or institutional culture to guide them.

Neither are there the penalties against wrong-doing as we have with laws holding public officials accountable.  Yes, not only must these private officials be properly educated, but be held accountable, too.  But, accountability is not discussed.

Sadly, in regard to the educational materials, the pro-HOA believers and groups ignore the fact that the “teachings” are really indoctrination courses into how to behave in HOA-Land under its unconscionable and oppressive adhesion contract, supported by pro-HOA laws and top-down UCIOA covenants. The materials flow from the pseudo-educator, the national lobbying trade group, which seeks to maintain the inequities of the HOA legal scheme.  They teach “how to behave as a good HOA member and avoid financial and emotional stress, and the good chance of losing your home if disobedient.”  And that is, is to follow the rules and to participate under procedures that thwart participation by “outsiders.”

There is no presentation of constitutional issues, of 14th Amendment violations, of the fallacies in the “consent to agree” argument, of no clean elections laws or of unacceptable due process procedures as a few examples.  Not even a discussion of the validity of my Truth in HOAs Disclosure Agreement argument.  Not even an invitation for attendees to proclaim their US citizenship status by signing the Declaration of US and State Citizenship form.

And why not?  Why aren’t these issue made public and taught by the great HOA educators?  Maybe, just maybe, as Col. Jessup shouted out in the movie, A Few Good Men, “You can’t handle the truth!”   Why are they afraid of the truth?

Courtesy: http://pvtgov.wordpress.com/2012/08/27/hoa-board-education-of-indoctrination/

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.

NPR

 I sent the following to a NPR reporter, Megan Verlee. Reporting publicly on anyone's abuse of another is what I am all about these days. I refuse to hide about any abuse I have experienced. If the courts can't make people accountable for their abuses, the media is the next source.

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I heard through the grapevine that you are interested in interviewing people in the Denver area regarding HOA Abuses. I am a Female to Male Jewish transsexual that was harassed and coerced out of my home in Aurora Colorado. The HOA President is using the HOA bylaws to discriminate against protected classes (i.e., my transgender status is protected, so is my religious class). She is also targeting a Vietnamese family and Hispanic family. I am the only one that has come forward and reported any of this to the State of Colorado, Department of Regulatory Agencies, Civil Rights Division. In order for the State of Colorado to investigate the alleged race discrimination going on, the Vietnamese and Hispanic families have to file a report on their own. The Hispanic family is overwhelmed. The Vietnamese family is scared of further retaliation, as the HOA has eaten up most (if not all) the equity in their home. They came here seeking freedom and now they are being abused. I moved to get out of it. I lost $87,000 worth of equity, but I am now free. I went form a large lovely home in the suburbs (Aurora), to a small cabin in Georgetown, CO. The freedom I have after ten years of living in a nightmare is priceless. Please go to my blog and read what I have there: http://hoaabuseofpowers.blogspot.com/2012/05/notice-of-complaint.html. I'd love to come down the mountain, meet you in Golden, CO and do an interview.

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I'm a reporter working on a story for a national radio show about HOA fees: how people decide the costs are worth the benefits and what happens when they don't think they're getting their money's worth. I'm trying to find someone with a real life experience of who can open the piece -- someone who maybe feels their HOA is wasting money on excessive snowplowing (Stan's example) or isn't spending enough to maintain the grounds or something like that. It doesn't have to be a big problem; smaller concerns also illustrate the situation well. The main thing is, I need to be able to interview this person in person, for audio quality reasons, so I'm looking for someone in the Denver metro area.

Thanks so much, Megan


Megan Verlee
Reporter, Colorado Public Radio
desk: 303.871.9191 ex 474
mobile: 303.524.5866

Court Decisions: HOA Enlightenment Movement vs. the Dark Ages

In this “groundbreaking decision”, as described by Evan McKenzie in  his Privatopia Blog, the Illinois appellate court made a ruling consistent with the HOA Enlightenment Movement.  Neglect by a condo association to make repairs affecting a unit is a defense against continued payment of assessment.  This is a major step toward homeowner justice that removes the “pay no matter what, or lose your home” doctrine of the authoritarian HOA governments.

The case, Spanish Court Two Condominium Association v. Lisa Carlson (2012 IL App (2d) 110473), involved a demand for assessments owed plus a possession — forcible entry — of the unit that was alleged to have suffered damages due to the condo association’s neglect.  (Understand that the condo sued under the Forcible Entry Act to repossess the unit). The court held the condo in the same position as a landlord under the landlord-tenant laws, which allow a tenant to withhold rent as a defense against forcible entry.

We hold, by analogy to the case law on actions brought under the Forcible Entry Act by landlords for possession of leased property due to unpaid rent, that the unit owner may claim neglect as a defense to the board’s suit under the Act.

And of very important significance for case law precedent is the holding on the mutual obligations of the CC&Rs contract, my emphasis, (p. 13,14),

“Plaintiff suggests that a board’s right to collect assessments is absolute and that a claim for nonpayment of assessments is not subject to any affirmative defense.”

[The court replied,] “nowhere does the . . .  Condominium Act suggest that the right is absolute.”  The Condominium Act appears to set the rights of unit owners on par with the rights of the board of managers. Moreover, the rights arise from mutually exchanged promises—on the one hand to pay assessments, on the other hand to maintain the common elements—and so the Declaration and the Bylaws are best seen as contracts.

[T]he condominium instrument indicates (as presumably most do) that the unit owner’s promise to pay assessments is in exchange for the board of managers’ promise to use those assessments for the repair and maintenance of the condominium property, the unit owner may claim, as a justification for nonpayment of assessments, that the board of managers breached its duty of repair and maintenance.

Contrast this decision with the recent California Supreme Court opinion, reflecting a culture still in the Dark Ages sorely in the  need of enlightenment, Pinnacle Museum Tower  v. Pinnacle Market Development( No. S186149, Aug. 16, 2012 ).  

Here the court validated the binding arbitration clause with (my emphasis),

[T]the Davis-Stirling Act ensures that the covenants, conditions, and restrictions of a recorded declaration — which manifest the intent and expectations of the developer and those who take title to property in a community interest development — will be honored and enforced unless proven unreasonable.

Under its Discussion, B. Contractual Nature of Terms in a Recorded Declaration, the court gives an instructive presentation on the preferential treatment of the declarant/developer, consent to obey, waiver of rights, “for the common good,” and the open-ended amendment process.  Section C explains what constitute an unconscionable contract clause, rejected in this instance.  Very informative of the Dark Ages culture.

The HOA Enlightenment Movement is rolling on, and will gather momentum as the truth, justice, and the American way shall once again prevail.

Courtesy: http://pvtgov.wordpress.com/2012/08/18/court-decisions-hoa-enlightenment-movement-vs-the-dark-ages/

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.

Why Do People Harm Others in HOA's?

Looking Toward the Future

In the Milgram and Stanford Prison Experiments researchers explored what evil men can and will do to others 1) under repeated pressure from authority figures to follow the rules, and 2) in an environment where one is expected to act in accordance to the  roles of the community.  The researchers found that basically good people will indeed do harm, even do severe harm, to others.  The conditions and factors present in these experiments exist within the HOA community, and the harm being done to others in these HOAs is well documented in the media and in the courts.

The authoritarian insistence on enforcing complete obedience to the CC&RS, as repeatedly impressed on HOA boards by their attorneys, is well documented. The compliance by the directors and officers with these pressures for enforcement is well documented.   The blind obedience, apathy, and passivity  to authority by HOA members – the “prisoners” — who sign and agree to provisions blatantly detrimental to their interests, is well documented.  The adoption of the roles demanded of them by the system  and by the situation –  state laws and the court opinions, the adhesion CC&Rs and governing documents, and the lack of effective recourse — is well documented. 

The numerous “educational” seminars taught  by the attorneys and managers, many of which are sponsored by state and local governments,  serve not to fully inform but to indoctrinate the members into roles of obedience  and passivity, is well documented.  Good people doing bad things or remaining silent in the midst of wrongful acts and actions by the HOA is well documented.

State governments, the legislatures,  cannot allow HOAs to continue to  run amuck and to  freely violate the laws and their contractual obligations without legitimate and necessary constraints holding them accountable for the harm that they do to others.  Stop the “free rides.” 

Do not be conned by the HOA special interests unsubstantiated fear mongering about the demise of HOAs, and their  “only 5% are bad,” so we don’t need any restrictions.  Property crimes over the past 5 years averaged 3.3% yet we have laws.  Murder and rape rates are so miniscule compared to 5% (roughly 5 in 100, 000, or .00005), yet we have laws against these crimes.   If HOAs are indeed the next best thing to Mom’s apple pie, then they will survive.  If not, then it was the factor that “we got a good thing going here,” in terms of anything goes, that was the driving force behind all the clamor.  Fear not, people will continue to buy homes that are truly their private property.

But, to let the people in HOAs  continue to do harm to others and do nothing as  a matter of public policy is shameful.

Courtesy: http://pvtgov.wordpress.com/2012/02/29/why-do-people-harm-others-in-hoas/

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.

The Role of the HOA Apathy Affliction in Circumventing Public Policy

Public policy is expressed in many ways by the actions or inactions, and statements or non-statements by government officials in the executive, judiciary and legislative branches. What bills are made law or not passed, and the intention of the legislature, when and if explicitly stated, makes public policy.

In Arizona, for instance, HB 2441 (2011 session) was submitted and aggressively supported by the CAI chapter. It contained, among other things, a provision for the minority control of the CC&Rs amendment process by allowing as low as 33% of the all members to approve an amendment. While the Apache Wells rewrite contains a very vague and loose requirement for amending the CC&RS in contrast to the detail by-laws amendment process, it lacks homeowner protections.  There are no requirements for notice, meeting at which the voting is to take place, no approval requirement, etc.  (The prior 1987 CC&Rs required a majority approval of all the members).  The 50% vote is misleading as to homeowner protections without all of the above in place, as has occurred in the Fourth Amendment rewrite with respect to the minority approval of special assessments (See below and the prior Commentary link)..

10.4. Amendments. At any time this Declaration may be amended by an instrument in writing, executed by the then Lot Owners of more than fifty percent (50%) of the Lots in the Project.  Any amendment approved pursuant to this Section 10.4 of this Declaration shall be signed by the President of the Association and shall become effective upon recordation of the same with the County Recorder of Maricopa County, Arizona. Any such amendment shall certify that the amendment has been approved as required by this Section 10.4.
 
When it comes to approving special assessments (Section 7.5 of the CC&Rs), which could be almost any amount like the assessments to pay off an $8.5 million loan for a suspect administrative building in 2007, the rewrite allows for a 25% approval of any special assessment. (The prior 1987 CC&Rs required a majority ratification of the special assessment by all the members).  The point that I wish to make is that the special assessment rewrite is only one example of how minority control fails to protect the homeowner.

Another example is the attorney self-interest covenant, 10.2, Administrative Law Proceedings, which states in part,

In the event the Association is required to incur any expense, including attorneys’ fees and costs, as a result of the direct or indirect actions of any Owner, the Association shall be entitled to recover all such expenses incurred, including all attorneys’ fees and costs, against the applicable Owner, regardless of whether formal proceedings are actually filed, pursued or awarded...

The public policy of the State of Arizona was made clear in 2006 when ALJs were permitted to hear HOA disputes, and no attorney fees were allowed to be awarded in these hearings. The CAI attorneys managed to have the law declared unconstitutional, which resulted in a reaffirmation of the legislative intent in 2011 to provide for ALJ adjudication without attorney fee.  The intent of the legislature was explicitly stated in the new bill.

The inclusion of section 10.2 in the Apache Wells CC&Rs rewrite can only be viewed as another intentional slap at Arizona public policy, and one in the best interests of the HOA hired-hand attorney.  The covenant for minority approval of special assessments, given the history of special assessments at Apache Wells, is another act of bad faith and disregard for public policy.

The recourse to CC&R amendment rewrites with the reality of the apathy affliction so prevalent in HOA-Land is a devise to circumvent public policy in order to achieve goals and objectives not in the best interests of the homeowner.  The Restatement of Property: Servitudes, Section 3.1, Validity of Servitudes,    “A servitude [covenant running with the land]... is valid unless it is illegal or unconstitutional or violates public policy.”  It is only the acts and actions of the people within HOAs that can return them to the American way of life.

Courtesy: http://pvtgov.wordpress.com/2012/08/15/the-role-of-the-hoa-apathy-affliction-in-circumventing-public-policy/

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.

The HOA (Unhappy) Apathy Affliction: A Political Dynamic

Everyone is unhappy with the pronounced apathy among those living in HOA-Land, where the lack of homeowner protections works for the power-elite, the board and its attorney.  CAI has complained many times about apathy when homeowners complain about the conduct of their boards.  CAI also complains how it can’t make “necessary” changes to the CC&Rs to bring them current with the laws.

Because of this apathy, homeowner advocates who are aware of the inequities of their HOA predicament cannot get their good neighbors — those who pay their dues and obey the rules — to support them in their efforts to obtain justice for all members.

A recent approach being used by CAI in Arizona is to call for the complete rewrite of the CC&Rs to make the HOA a better place, the ostentatious reason, while including even more oppressive covenants and covenants that are highly favorable to the HOA attorney and its income stream.  In order to accomplish this, recourse is made to playing loosey-goosey with the strict Arizona laws for amending the CC&Rs.

The law requires a written explanation of each and every change being made, which can be cumbersome, but the law is there to protect the homeowners. It’s a cost of making sweeping amendments all at once.  But the homeowners say and do nothing except to sign away their rights as good team players.

The political impact of these sweeping changes is made real by the apathy of the majority of the homeowners to agree to whatever the board proposes with the blessings of the HOA attorney, who wrote the revised CC&RS.  They can affect your pocketbook, your property rights, and your already weak voting rights.

A common change, minority control, was defeated in the 2011 legislative session that permitted minority control of the amendment process, thereby giving the political machine in power basically complete control of the HOA and over its apathetic members.  This political tactic relies on homeowner apathy to succeed.  It removes a vote of all the members and the long held doctrine of a supermajority vote, usually 67%, and replaces it with a majority vote of only those voting.

Even with a 50% quorum as little as a 25% approval can affect the rights of ALL members, whether they agree or not.  And with the pro-HOA laws and unconscionable adhesion CC&Rs contract, the members will be just pawns in the hands of the board – just pay your dues and shut up, or else!

Homeowner apathy is a serious affliction in HOA-Land.  Under the current environment, it is the homeowner who must stand up and fight for his rights, in the HOA and at the legislature to change the laws.

Courtesy: http://pvtgov.wordpress.com/2012/08/14/the-hoa-apathy-affliction-a-political-dynamic/

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.

Insurer Denies HOA Coverage in Trayvon Death

This position by the insurer points out that the HOA board is NOT 100% protected for wrongful acts.  Especially for those that are grossly negligent or intentional acts.

Homeowners should step outside the HOA attorney box that implies that the HOA can do no wrong, and remember that laws other than those HOA or Condo Acts  also apply to HOAs:  Restatement of Servitudes, tort law, and corporation law.

From the COURTHOUSE NEWS SERVICE Aug. 6, 2012

ORLANDO (CN) – Traveler’s Insurance sued Trayvon Martin’s mother and The Retreat at Twin Lakes Homeowners’ Association, where her son was killed, claiming it has no responsibility to defend the HOA or cover the teenager’s death.

Travelers Casualty and Surety Company of America sued The Retreat at Twin Lakes Homeowners’ Association and Sybrina Fulton, as representative of her son’s estate, in Federal Court.

The Retreat at Twin Lakes’ Neighborhood Watch captain George Zimmerman shot Trayvon Martin to death on Feb. 26. The shooting set off a national furor, as police initially let Martin’s killer, George Zimmerman, go free after questioning him. Martin was black; Zimmerman is not.

Travelers claims that on March 30, it issued the HOA a “claims-made, nonprofit management and organization liability insurance policy.

Fulton then sought monetary damages against the HOA’s policy with Travelers for her son’s death.

Travelers claims it is not liable because of the policy’s “wrongful act” exclusion.

Travelers claims the exclusion states:

“The insurer shall not liable to make any payment for loss in connection with any claim made against any of its insureds: 1) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving bodily injury, sickness, mental anguish, emotional distress, disease or death of a person, provided that this exclusion shall not apply to allegations of mental anguish or emotional distress if an only to the extent that such allegations are made as part of a claim for wrongful employment practices.’

“Travelers is in doubt of its rights under the policy and, by this petition, seeks a declaration of its rights and obligations with respect to the claim and demand made by Fulton upon Travelers and The Retreat at Twin Lakes as a result of the fatal shooting or Martin, and a finding by the court that under the above-referenced policy of insurance Travelers has no duty to indemnify or defend The Retreat at Twin Lakes in connection with the Fulton claim because coverage is precluded by the above exclusion.”

Zimmerman was rereleased on $1 million bond in August his first bond of $150,000 was revoked. State Judge Kenneth Lester ordered Zimmerman back to jail after finding that Zimmerman and his wife Shellie misled the court about how much money they had.

Shellie Zimmerman was arrested and charged with perjury days later, and released on a $1,000 bond. She was to be arraigned July 31 but her attorney Kelly Sims filed a written not guilty plea.

George Zimmerman has pleaded not guilty to second-degree murder and claimed self-defense under Florida’s so-called “stand your ground law.”

Judge Lester last week refused to recuse himself after Zimmerman’s attorney Mark O’Mara asked him to. O’Mara accused Lest of making “gratuitous, disparaging remarks” when he set Zimmerman’s second bond, according to wire reports. Lester denied the motion as “legally insufficient.” 

Insurer Says It Should Not Have to Pay for Trayvon Martin’s Death

Courtesy: http://pvtgov.wordpress.com/2012/08/06/insurer-denies-hoa-coverage-in-trayvon-death/

This article is not intended to be specific legal advice. It only provides general legal information. You should consult a licensed attorney if you have a legal issue.