Due Process? Screw Process!

One of my angriest complaints against the HOA movement is the almost complete void of the recognition of this fundamental principle in the documents of a typical Homeowners Association. Due Process isn’t some newfangled thing invented by our nation’s founders. No, the concept of Due Process has it’s roots in the Magna Carta, a document developed by freedom minded revolutionaries who were trying to bring a tyrannical British monarch under control.

So when our founders were establishing the kind of republic that had never existed on this Earth, a republic guaranteeing the maximum amount of freedom to the maximum number of people, they sought to interweave the concept of Due Process into our founding documents. They even wrote into our Constitution ways of correcting errors of Due Process, although it took a Civil War and a half million lives to bring that about.

But here comes the HOA movement, a movement dedicated to fleecing unwitting homeowners out of their life savings. One of the first things they had to do was generate corporate ‘agreements’ where American home buyers unwittingly signed away their rights to Constitutional Due Process. And 62 million homeowners did exactly that, leading to a fifty billion dollar industry that routinely fleeces homeowners.

Enough of my blabbing. Here comes a Homeowners Rights advocate in Nevada who gets himself appointed to a state commission overseeing Homeowners Associations. Fighting a majority of committee members who are actually part of this fifty billion dollar a year industry, he makes some crazy recommendations, like…. well, like restoring Due Process to all Nevada Homeowners.

He could never get such a thing passed, could he? Well don’t ever underestimate the power of a single man who stands up against the mob. Commissioner Jonathan Friedrich, long my hero, and long the hero of millions of Nevadans actually got a Due Process pledge passed by his seven member commission.

Certainly, Friedrich has miles to go before he sleeps, and his Due Process resolution has a ways to go before it becomes law. It’s not perfect, even he would admit that. But who knew such a resolution could come out of a State committee which is basically bought and paid for by the HOA industry? Still, it’s a privilege to reprint the words of the new resolution here, for everyone to read:       

                                              PROPOSED REGULATION OF

               THE COMMISSION FOR COMMON-INTEREST COMMUNITIES

                                               AND CONDOMINIUM HOTELS

                                                      November 15, 2013 Draft

                                                     Unassigned File #116-31085

 EXPLANATION – Matter in italics is proposed new language; matter in brackets [omitted material] is material to be omitted.

 AUTHORITY: NRS 116.615

 Create a new section or amend NAC 116.31085 to add the following language:

 Section 1.

Timing of notice of hearing: In accordance with NRS 116.31031(4)(a), a notice of a hearing setting forth the date, time, and location for the hearing and a telephone number and mailing address that the recipient may contact to request an continuance or change of hearing time or date must be sent to the record owner at the last known postal mailing address of that record owner or, if none, to the postal address to which the annual assessment notice is mailed and any other party in interest to that party’s last known postal mailing address by certified mail return receipt requested not less than 30 days prior to the date of the hearing. The 30 days shall be counted starting the next business day after mailing and ending the day before the proposed  hearing. Notice shall be considered sufficient whether or not the certified mailing has been  claimed by the addressee, provided that the sender has the stub from the United States Postal Service showing the certified mailing number, name and address of the addressee, and payment of the required fees to the Postal Service.

Personal service is not required but is an acceptable alternative to mailing as set forth herein if made within the time frame specified 

 Section 2.

Contents of Notice: Notice delivered pursuant to Section 2 shall, in addition to the date, time and location of the proposed hearing, include a specific detailed description of the alleged violation in plain language, including but not limited to a recital of the number and language of the specific section of the governing documents alleged to have been violated and including a legible photograph of any property condition alleged to constitute the violation. The Notice must also set out the  fine for this violation then in effect in accordance with the governing documents and a reasonable time within which to cure the violation, the reasonableness of the cure time being commensurate to the magnitude and seriousness of the alleged violation. The Notice must also advise the addressee of the addressee’s rights set out in Section 3 and list the members of the hearing panel with their names. and addresses.

 Section 3.

Rights of alleged violator:

1.The property owner alleged to have violated the governing documents shall be entitled to one continuance of the proposed hearing of not more than 30 days for any reason whatsoever and any additional continuances to which all the parties agree.

2. At any hearing, the alleged violator may be represented by legal counsel or by any other person of his or her choosing or by any person acting as officer, managing partner or trustee of the entity owning the property. 

 3. The alleged violator must be given written notice that they can request in writing that within 5 days the hearing be held in open session rather than in closed session within.

4. The parties may present witnesses and all witnesses shall be subject to cross-examination by the opposing party and may not without the consent of all the parties be present when other witnesses are testifying except for the alleged violator who may be present for the entire hearing and may testify if he or she so chooses.

5. Any party may make an audio and/or video recording of the hearing at that party’s own cost and expense.

 6. A transcript of the hearing shall be paid for by the party requesting same or shared by the parties if both sides so request a copy.

7. Any party needing a language interpreter or sign language presenter may bring such interpreter and/or sign language presenter to the hearing at that party’s own cost and expense. 

8. All documentary evidence to be presented at the hearing by any party must be delivered to the opposing party not less than 5 days prior to the hearing along with a list of all proposed witnesses except that the alleged violator(s) may testify without being included on a witness list.

9. An alleged violator may challenge any member of the proposed hearing panel for bias or conflict of interest or for any disqualification permitted under NRS 116. 

10. The alleged violator may make a rebuttal at the end of the presentation of all evidence and all parties shall have the opportunity to address the hearing panel with a summation at the end of the presentation of all evidence. 

11. The hearing panel, by majority decision thereof, must render its decision within 10 days .

12. The decision of the hearing panel must be mailed in writing to all parties by regular mail within  10 days of its rendering along with an explanation as to a party’s right to appeal and setting out the applicable appeal procedure.

13. A unit owner shall be entitled to appeal a decision of the Board under the Real Estate Division’s Mediation Program as per NRS 38.300-360.

 14. No additional fines shall accrue while the decision is under appeal through the Mediation Program.

15. Each side shall be responsible for their own fees and costs.

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About

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.

8 thoughts on “Due Process? Screw Process!

  1. Giles

    I’m lucky: my HOA actually observes due process. Except when towing my wife’s car on a Tuesday morning. But with fines, there has to be a complaint, and that complaint has to be backed up before the board and defended by the person who may get fined. So at least I have THAT to be grateful for.

    Reply
  2. Norman McCullough

    Jonathan Friedrich is right on target. I can not even imagine why any HOA commissioner would not jump at the chance to adopt a proposal that acknowledges the constitutional rights of a citizen.

    It is not too difficult to foresee the future when some HOA Board Members who think they can ignore these rights bankrupts their Association when a Federal Judge upholds the Constructional rights to due process of a citizen they have wronged. It will come to pass only after prolonged legal fights in the lower courts led by the Lawyers employed by the “Association”.

    It’s a “Win Win” for the lawyers, but the victory (when it comes), will be very expensive for the HOA home owner.

    Reply
  3. Norman McCullough

    To preface my comment – I am a senior (80 years old now), and I have suffered retribution from my HOA Board Members because I exposed the truth.

    My HOA in Henderson Nevada committed financial fraud (in my opinion) against me and 161 other Villa homeowners. The Association had violated Federal IRS laws. The Non Profit Association was fined by the Feds for failing to return excess money to the members so in order to hide some of the excess, the Board members fraudulently changed the dimensions of the homes they were responsible for painting.

    162 home owners set aside money (from 1998 until 2007) to paint 2,858 sf of stucco on their homes. In 2006 (when the HOA was being investigated by the IRS) the Association Board Members fabricated a new number that “shrunk” the stucco surface down to only 1,928 sf. As a result over $80,000 disappeared from the records that should have been earmarked as “excess” and reduced the dues needed to fund the next paint cycle scheduled in ten years.

    The laws governing Home Owner Associations were written to protect the system and not the home owners. It needs to be changed, and Jonathan Friedrich is a champion who should be supported and admired for his courage to “tell it like it is”.

    God Bless him for his efforts

    Norman McCullough

    Reply
  4. Nila Ridings

    100% I agree that Jonathan Friedrich deserves support from every HOA member for his efforts to stand up and fight against the tide.

    After attending the HOA board meeting in my community last night, I have come to a new conclusion about HOAs in general. One of our board members has lived here for thirty years. She openly admitted she did not know what was in the covenants and she has served on the board and architectural committee for over three years. Over and over again I hear comments from board members that take me by surprise. After some thought, I’m not sure a lot of the volunteers serving on the HOA boards across the country even know there is such a thing as the US Constitution. And that just may be where the problems start.

    Reply
  5. Judith Marquez

    I am contacting Jonathan Friedrich today for assistance. I am dealing with my HOA now for issues surrounding the transfer of our community between management companies. During the transfer, my account was taken off of automatic bank debit for the withdrawal of my HOA assessments. The transfer between companies occurred in September, and I did not become aware that my account had not been debited until December. I contacted my HOA community manager, to be told they no longer managed the account, and that the account had been transferred.

    I was never contacted at all known addresses, including my property owned in Las Vegas, or my known mailing address in CA of the change in managers, or in the attempt to contact me because my bank account was no longer being auto drafted for my assessments.

    The HOA placed a lien against my property, did not allow me to vote in the recent election of new board members or notify me of the election, which I requested to be made aware of, and has placed late charges, and other fees for their error in transferring my account.

    I agree with Ms. Ridings who commented earlier in this post that board members as volunteers do not know much if anything about their covenants. I actually do, as I have served on the board in question as an adjunct member when I lived on the property, and am currently serving again as president of my HOA board here in CA, having served a term as president in a prior term as well. I have my CCRs for my HOA here marked up, and have done quite a bit of research and work closely with my association manager to assure our corporation is properly handled.

    I understand that we are a corporation, and as such, each homeowner is a shareholder in the corporation. Each shareholder has a duty and a right to understand the operations of the company, and to participate in meetings. It’s difficult getting folks to understand this, but at least those of us on the board do! Both past that I was on, and present.

    Reply
    1. Ward Lucas Post author

      Judith, you bring up some very important points. Let me add one more. Some HOAs intent on getting rid of ‘certain’ homeowners (think black, Jewish, Oriental, single moms, gays, people with older cars, folks with Wednesday night Bible studies, will intentionally not debit an account for HOA dues. Then these ‘unwanted’ people are fined, sued and liened. It’s unmerciful. It’s wrong. And it’s part of the story of how the HOA movement has gone astray. Thanks for your note, Judith.

      Reply
  6. Nila Ridings

    I would never ever in a million years let an HOA or their property manager have access to my bank account with automatic withdrawals. Nor would I give them my credit card number for any reason. Far too much fraud and corruption in the HOA industry for me to trust any of them!

    Reply

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