Finally, A Bill Of Rights!

      1 Comment on Finally, A Bill Of Rights!

Wow, it looks like Jonathan Friedrich (the best friend a Nevada Homeowner ever had) has been busy since his appointment to the state Comittee which oversees Homeowners Associations.

I include his proposed Bill of Rights below just because it deserves to to be talked about. My only objection is, “We have these rights already! Somebody just found a way to take them away by fiat! All we need is a frickin’ rule that says Homeowners Associations are ALL government agencies and can not organize as private non-profit corprorations. THAT’S ALL!

Anyway, here are the thoughts of a real gentleman:

PROPOSED HOMEOWNERS BILL OF RIGHTS

                           PREAMBLE

WHEREAS:  This State has fostered, permitted, and mandated the widespread usage of Homeowners Associations and:

         WHEREAS: This State has caused to be enacted State Statutes governing Homeowner Associations, Condominium Associations and Hotel Condominium Associations:

         WHEREAS: Over time Statutes have been enacted that are abusive and unfair to Homeowners, while empowering and enriching Property Managers, Attorneys and Collection Companies, Lobbyists and others associated with the HOA Industry:

          WHEREAS: There have been widespread abuses by HOA Boards governing these Associations, to wit:

                  People’s Constitutional rights have been abused or taken away

                  Financial abuses and theft of Association funds have taken place

                  Homeowners threatened with steep fines, legal fees, and foreclosure for petty infractions or falsely-alleged violations 

                  Boards are not following their own Rules and Regulations, and have selectively enforced and inconsistently applied rules

                   Out-of-control boards have been forcing their will upon others

                   Boards are not willing to uphold the Open Meeting law, but face no consequences for failing to do so       

                   Boards are not being Transparent in their actions and in their use of financial resources and withhold information from homeowners

                   Boards are not accountable because homeowners are not organized; Homeowners’ votes are diluted allowing Board members to re-elect themselves over and over

                    Homeowners wishing to challenge unfair Board actions must pay for legal fees out of their own pockets, while Boards have a bottomless “war chest” to draw from, which is then charged to all of the Homeowners

 

Furthermore, others charged with managing or overseeing the justice and fairness of Homeowner’s Associations have failed to perform their duties on behalf of Homeowners, or are not well-versed in the Statutes or proper procedures and are more favorably disposed towards Boards, Property Managers, and their Attorneys which include;

 

  • State agencies empowered to deal with complaints and abuses
  • Poorly trained Property Managers

 

THEREFORE:  Now let a HOMEOWNERS BILL OF RIGHTS be enacted to protect Homeowners from incompetent or abusive Boards and abusive State laws

 

Page1

  1. No Homeowner shall ever have his home or land foreclosed upon by a Homeowner’s Association for non-payment of fines, delinquent monthly Homeowner Association fees (regular assessments) or for non – payment of special assessments. The Association will be permitted to place a lien on the property until the unpaid fees are brought current, but may not foreclose on the lien. The legal costs shall be borne by the delinquent homeowner.

 

  1. No Special Assessment, for whatever purpose,  shall be levied upon owners in a Condominium Owner’s or Homeowners Association without a written ballot, requiring a two-thirds (2/3) approval of all Owners in the Association. Further, the following minimum time periods must be established for payment of the Special Assessment, or such longer period of time as may be established in the Special Assessment

 

a)120 days after notice of approval of a Special Assessment to make one payment if $750.00 or under.

 

b) Any amount over $750.00 shall not be required to be made in no fewer than 3 equal payments, with the first payment due no less than 120 days after notice of approval of the Special Assessment  with no less  than 60 days between payments.

 

    c) Any amount over $1,500.00 shall not be required to be made in no

     fewer than 4 equal payments, with the first payment due no less than

     120 days after notice of approval of the of a Special Assessment, and

      with no less than 60 days between payments.

 

    d) Any amount over $2,000.00 shall be made in no fewer than 6 equal

     payments, with the first payment no earlier than 120 days after notice

     of the approval of the Special Assessment  with no less than 60 days

     between payments.

 

    e)Any amount over $3000.00 shall be made in equal installments not

     to exceed $500.00 per installment, with the first payment due no earlier

     than 120 days after notice of  approval of the Special Assessment, and

     thereafter, with no less than 60 days between payments.

      

  1. It shall be incumbent upon the Homeowner’s Association, Property Manager or the Declarant to prepare a summary of the CC&Rs, Rules and Regulations. These requirements are to be explained either in
     
                                                    page 2

    person or by use of a Videotape, CD or DVD (at option of the buyer)
    with a copy of the summary or the video given to the buyer prior to the
    sale of the home, condominium or property. Moreover, a complete copy
    of the Governing Documents may be issued upon request, in Paper
    format, CD or DVD, to each buyer.

 

  1. All documents that have been prepared for Homeowner’s Association Board Members, even in Draft form, and including all legal advice and documents issued to the Property Manager, Board Members or Executitive Director shall be made available to members of their respective Associations upon request, and at no charge to them. The
    only documents which may be withheld are (1)Privacy Act protected personal information contained in employment records, and (2)

     documents relating to pending or current litigation, for which a Protective

     Order has been issued by a Court of Competent jurisdiction or by a
     duly appointed Arbitrator.  All legal documents so withheld must

     be released upon request at the conclusion of the litigation and without
     charge.
 

  1. All Homeowners shall be allowed to speak at HOA Board Meetings on any agenda item being discussed during the meeting. A minimum of 5-minutes must be allowed for each Homeowner’s comments per topic. Homeowner’s who cannot attend the meeting in person may submit their comments to the Board, to the Board President, or to the Property Manager or Executive Director by fax , U.S. Mail or e-mail, so long as it is delivered no later than 24 hours prior to the start of the Meeting.  Comments submitted shall be read  by a Board Member prior to or during the live oral comment period on the topic which is the subject of the Homeowner’s comments. If the comments are lengthy, the duration of reading may, at the option of the Board, be abbreviated / truncated to 5 minutes per-comment per-topic.  However, the comments must be summarized in as faithful and accurate a manner as possible, to convey the Homeowner’s intended expression. All comments presented, either orally in-person, or in writing, must be heard prior to putting the subject or agenda item to a Homeowner or Board vote.

 

  1. Interest shall not accrue on any unpaid fines. A maximum interest rate of 5 percent (simple interest) per-annum may be charged on unpaid monthly fees beginning 60 days after they are assessed. An interest rate of 3 percent may be charged on unpaid Special Assessments, beginning 90 days after they are due.

                                                             page 3

    For any Homeowner with any unpaid fine(s), delinquent or unpaid assessment(s), or  unpaid fee(s), a statement must be mailed via certified mail, with return receipt to that Homeowner’s mailing address of record at least every 60 days.  (The costs of mailing may be charged to the Homeowner’s account).  Failure to mail a statement by the 70th day will void all fines and interest imposed by the Association.

 

  1. The Office of the Ombudsman shall be empowered to resolve disputes between Association Boards, Property Managers, and Homeowners. The Ombudsman shall be vested with the power to impose fines in the amount of not more than $100 per-occurrence and not more than $400 in total fines against any single homeowner, or not more than $2,000.00 per-occurrence and not more than $6,000.00 in total fines against any Board or Property Manager within any Two-year period, measured from the date of the Ombudsman’s decision the first offense.

 

    a) Any Board member, Property Manager, or Executive Director who
has committed Three (3) infractions within any Two-year period, measured from the date of first filing with the Ombudsman’s Office, and having been found  guilty of  infractions of either the Governing Documents or of State Statutes or Codes that govern Common Interest Communities, shall pay an additional fine in the sum of not less than Two Thousand Five Hundred Dollars ($2,500.00) to the Office of the Ombudsman. In the case where a Board Member, Property Manager or Executive Director has committed willful Violations, a breach of any fiduciary duty, or acted with malice or gross negligence of their duties, they shall be personally liable to pay the fines and shall not be defended, reimbursed, or indemnified  from or by the Association, or the Association’s insurance carrier.  Upon such finding, the Board Member, Property Manager or Executive Director must reimburse to the HOA or insurance carrier all costs of his or her defense.

 

  b) The Ombudsman’s office shall award costs and reasonable attorney’s
    fees to any prevailing Homeowner.

 

    c) The Ombudsman’s office may not assess attorney’s fees or costs
    against a Homeowner in favor of a Board or Property Manager unless the
    Ombudsman reasonably finds that the Homeowner brought the claim in
    bad faith and was motivated by an improper or vexatious purpose.

 

 

 

page 4

  1. Homeowner Boards shall not be allowed to hold hearings concerning alleged violations of the Association’s governing documents. Only Fact-finding sessions that are open to all the other members of the Association shall be held. The facts found shall be used by both or either party and submitted to the Ombudsman’s Office to substantiate their claims.

 

 

    9.  No Homeowner’s Association shall change their CC&Rs unless 85% of 
         the Owners in the Association vote in favor thereof by written ballot.
         No declarant shall be allowed to unilaterally change or amend CC&Rs
         after the first home or lot is sold. At the time when the required number of
         homes or lots are sold and the declarant turns over control to the
         homeowners it shall then require 85% of the then-owners to affirm by
         written ballot any changes to the Governing Documents.

 

 10. Full Disclosure with free debate shall be required on all matters

    concerning the Budget, Reserve Studies Repair & Replacement of all the
    Association’s infrastructure components. Results shall be published either
    in the Association’s next newsletter or copy of the minutes of the meeting,
    either in electronic format or paper format at the discretion of the
    Homeowner, Prior to the Board’s Vote on the issue before them.

 

  11. Any document requested by an Association member shall be turned over 

    to that member without charge in either paper format or by e-mail at the
    option of the Association Member.

 

  12. All members shall receive a copy of the previous year’s Financial Audit /       Statement at the annual Homeowners Meeting or, if not in attendance, any  homeowner may request a copy be sent by either  U.S. Mail, by e-mail, or to  be picked up at the on-site administrative office or designated common area  facility (e.g., office or clubhouse).

 

  13. No homeowner shall be denied access to or prevented from reviewing all 

       Bank Statements, Bills Paid and Unpaid, Invoices, Quotes, Estimates, Contracts, both Past and Current, and Attorney/Legal Invoices, during normal business hours at the office of the Property Manager or Community Administrative Office.  No charge shall be made for any Homeowner, or his or her representative to review these documents.

 

 

 

 

                                                   Page 5

 

 

14. A Term Limit shall be imposed for Associations with more than Fifty (50)
       units: No Director or Officer of a Homeowners Association shall serve
       more than Two (2) consecutive two – year terms in the capacity as a
       Director, President , Officer or Board Member. A period of Six (6) years
       must elapse before a former Director, President, Officer or Board
       Member shall be allowed to again serve in office in the same Association
       or Sub Association.

   15. Decisions of the Board of Directors shall be based on all the facts available,
or such facts as should be known upon reasonably diligent inquiry, and under the Business Judgment Rule. When considering Budgets, Reports dealing with Construction Defects, Infrastructure repairs or replacement, Equipment repairs or replacement, Reserve Studies, and Reserve Assessments, a Board must have thoroughly reviewed and analyzed any bid, report, and/or study prepared  by a Professional knowledgeable in the area under consideration prior to adopting  or ratifying it. In light of the Board’s fiduciary duties to Homeowners, wasteful, redundant, and excessive expenditures should be avoided. While the lowest-cost approach is not always required, the Board should seek foremost the “best value” for the homeowner’s and give due consideration to the financial hardships which might be imposed on homeowners, to be balanced against the beneficial effects of the expenditure on homeowners.

16. The State of Nevada must ensure that all Association Board Members
       honor the State and Federal Constitutions, which guarantee
      “equal protection and due process” to its Citizens. The State of Nevada
       has a duty to ensure that each Common Interest Community adhere
       to the law.

17. This HOMEOWNER’S BILL OF RIGHTS shall supersede any conflicting
      or inconsistent provision of State Statutes or Homeowner’s Association
      Governing Documents.

 

By _________________________                           Dated this 1st day of July 2008

 

            JONATHAN FRIEDRICH

 

 

 My comments, Jonathan: the lawyers will savage you. CAI will slime you, you’ll soon fine that it’s impossible to keep all your tires inflated (the nails will just pop up at the most inconvenient times. There might even be a death warrant out for you by some of the dozens of Las Vegas Crooks who are on their way to prison because of their own graft and corruption. Keep you head down and your powder dry! But don’t stop what you’re doing.

Ward

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About Ward Lucas

Ward Lucas is a longtime investigative journalist and television news anchor. He has won more than 70 national and regional awards for Excellence in Journalism, Creative Writing and community involvement. His new book, "Neighbors At War: the Creepy Case Against Your Homeowners Association," is now available for purchase. In it, he discusses the American homeowners association movement, from its racist origins, to its transformation into a lucrative money machine for the nation's legal industry. From scams to outright violence to foreclosures and neighborhood collapses across the country, the reader will find this book enormously compelling and a necessary read for every homeowner. Knowledge is self-defense. No homeowner contemplating life in an HOA should neglect reading this book. No HOA board officer should overlook this examination of the pitfalls in HOA management. And no lawyer representing either side in an HOA dispute should gloss over what homeowners are saying or believing about the lawsuit industry.

One thought on “Finally, A Bill Of Rights!

  1. Robert Frank

    Johnathan and I both represent homeowner interests on the Nevada Governor-appointed Commission for Common Interest Communities and Condominium Hotels.

    While the homeowner bill of rights seems like it should be a non-brainer concept, even more basic is that Nevada Legislators are unwilling to discuss clearing up the fact that the US Constitution applies equally to HOA and non-HOA citizens of this State.

    It will be impossible to establish a meaningful HOA owner/resident bill of rights if there is no state government agreement that HOA owners and residents are CITIZENS in the State of Nevada as described by our US and NV Constitutions!

    Imagine that the real estate laws demand that there be full disclosure of all limitations associated with a property for sale, but the government fails to require disclosures that HOA buyers are signing away their basic Constitutional rights when accepting the CC&Rs!

    I would have never accepted the sales contract if I had known at that time how I was supposedly giving up my Constitutional rights to equal justice under the laws of NV!

    Reply

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