When Attorneys General fail to protect their Citizens
guest blog by Shelly Marshall (author of HOA Warrior I and II)
On January 4, 2016 Andy Beshear took an oath for the office of Attorney General (AG) in Kentucky. He told Kentuckians in a column on Cincinnati.com :
The Attorney General’s Office seeks justice and defends the oppressed. We provide a voice for the voiceless and a lifeline for the lost and the lonely, the abandoned and the forgotten.
We protect those who cannot protect themselves and are the last line of defense to those who need it most.
Oh, if only that were true for the homeowner and condo owners in planned development communities across our great country. A handful of states are more proactive and homeowner friendly with a few outstanding examples like California, Maryland, and Indiana. Yet a majority of states simply drop the ball on protecting citizens being chronically abused in these communities. Like Kentucky, each state has laws and an AG that are supposed to protect all citizens but generally fail the residents of Homeowner Associations. And some like New York have the most laughable ‘help’ for HOA members with very little justice from their Departments of Justice.
The People’s Attorney
Our nation’s Attorneys General are often referred to as the “People’s Attorney” because as chief legal officer in their respective states, they are supposed to be the the main legal adviser to the government and protector of its citizens. Usually, they swear to enforce federal and state laws. As such, the Attorney General’s Office should be the last line of defense for the people of any state. At least theoretically. Andy Beshear has the correct understanding about his office, but when it comes to protecting people from HOA predators will Attorney Beshear advocate for homeowner rights? Or will he do what so many other Attorneys General around the nation do, wash his hands of any involvement, regardless of what laws are broken, because “It’s a civil matter?”
As a homeowner advocate and HOA abuse author, I hear it all the time, “I tried to file a complaint with the attorney general and they told me they don’t do civil matters.” People, like myself, think that corporate law, contract law, consumer protection law, fair debt collection law and HOA law is there to protect them. And they mistakenly think the state is there to ensure that protection. Thus it comes as a shock to discover that most states in the union do not enforce or interfere in HOA conflicts, calling them “civil” and “internal” disputes even though many laws are routinely violated.
The Utah Code
Coincidentally, while researching the topic of why the justice departments of most states won’t take HOA violations seriously, my own HOA had a board president go rogue. In violation of numerous Utah State Codes, he hired an attorney to try to cancel our annual meeting then unilaterally invalidated the election results when he couldn’t shut it down, refused to turn over the checkbook and records to a newly elected board, and ran the HOA for months without holding any meetings. He spent money he wasn’t authorized to spend (including $5000 to his attorney to keep him in power), sent out a newsletter, and kicked people off his property who confronted him. The behavior was outrageous.
He can’t do that!
The new board and many members called various authorities for help and they all exclaimed, “He can’t do that!” Yet he did. So I called the The Department of Commerce and Consumer Protection to insist that they enforce the Corporate Code and/or HOA Code, both of which were being violated. I reached a representative who spoke candidly, “I’m telling you right now, there is nothing we can do. These legislators pass laws and give us no way to enforce them. We cannot help you.” But it’s the law, I say. “Hire an attorney,” he replied.
“So legislators create laws and expect us to enforce their laws?” I cried.
“Yes,” he replied. “I’m sorry.”
Even though Utah Code specifically charges the AG with seeing that Corporate Law is followed by non-profits (16-6a-1609.Interrogatories by division), lowly HOAs apparently don’t deserve equal protection. Citizens targeted and abused by their boards and the board’s attorneys are told the AG doesn’t get involved with HOAs.
Citizens in most states are told the same. Attorneys General have bigger fish to fry than be worried about the numerous fines for open garage doors, wrong color paint, dogs two pounds overweight, and unpaid assessments that balloon under predatory collection practices. This leads to folks paying thousands of dollars for petty violations by inept and vindictive boards and all too often it leads to the loss of one’s home. “But they live there voluntarily,” we are admonished. And thus the “People’s Lawyers” turn their backs on citizens living in HOAs.
The Three Best States
Keeping in mind that I haven’t researched every law in every state, some states are better than others–the three best states I’ve found to live in for HOA law enforcement is California, Maryland, and Indiana.
In Maryland, they have extended their HOA law so that it falls under the enforcement authority of the Division of Consumer Protection! In Indiana it is specifically referenced in the statue that the AG has jurisdiction to investigate misdeeds by homeowner and condo boards. Although many state’s HOA laws look good on paper, they are essentially unenforceable so Maryland and Indiana have a good start. California Department of Justice posts a list of issues that fall under the jurisdiction of the Attorney General and corporate law. They even provide a comprehensive complaint form online for HOA residents.
No matter what state in which you reside, your Department of Justice website is worth reviewing to get an idea of what your Attorney General thinks about HOA law. Almost all corporate code provides for its own enforcement and almost all states disregard it when it involves Planned Development Communities.
Good Luck New York
Most states are like Utah, basically in a no man’s land with homeowner rights pretty much trampled on by ineffective enforcement and little to no consumer protection or DOJ help. And then there is New York, such a huge contrast from California. In New York, the Attorney General’s office posts an online report entitled “How to Handle Problems with your Homeowners Association.” It basically tells New Yorkers:
a) They can’t help you,
b) Read your documents,
c) Be polite to the board of directors,
d) Hire an attorney if needed,
e) And “Good Luck!”
No kidding, they write ‘Good Luck’ at the bottom of the report! I would laugh if it didn’t make me want to cry.
Thank you Shelly Marshal for a great blog article! I thought some may be interested in these two Attorneys General press releases concerning HOAs from back in 2004, I believe. The states are New York and New Jersey. By the way, the author of the NY one was former NY Attorney General, Elliot Spitzer. Remember him? At any rate, in NY they apparently are still using parts of this very press release in somewhat current legislative initiatives. I will post what I have on the more recent HOA “reform” NY addressed last year in another comment. Here are NY and NJ’s Press releases on HOA homeowner abuses, criminality, racketeering, fraud, etc..issues, etc…
These just two Attorneys General telling it like it is! There are a number of other states who have done the same. Many were on the http://www.ahrc.com site, which as most all know has been down for a number of years.. One of the most vocal of the Attorneys General has been NJ (this state has issued many), and if you look below, they really get directly to the point: “Homeowners in homeowner associations, report widespread insurance fraud, conspiracy, racketeering by board members………….If you know of anyone being victimized by your board…………………” You can read it all below. I do know that the NJ Attorney General did notify the other states Attorneys General, starting back in 2004 and I know for sure they notified Pennsylvania AG’s office.
Bottom line, in NY it appears, after sale, THERE IS NO PLACE TO GO FOR HELP. I think most of us know this is a very serious issue with HOAs in many states across the USA. The range of HOA criminality, HOA homeowner abuses, financial crimes against innocent HOA homeowners and HOA property thefts should never have been allowed to happen and endure in America!
What To Do About Problems With Your Homeowners Association
Advice from New York State Attorney General’s Office
October 12, 2004
By New York Attorney General – Eliot Spitzer (View author info)
New York, New York –
Members of homeowners associations who are unhappy with how their association is acting (or not acting) often do not know what they can do. This paper is designed to tell such homeowners about some of their rights .
In most cases there is no government agency that can help unhappy owners who are having problems with their homeowners association (HOA). The Attorney General’s office regulates only the offer and sale of real estate securities (which includes interests in HOAs). It generally does not become involved in owners problems with boards of directors after the sponsor is no longer in control of the board. However, this office may be able to help you if the sponsor of the HOA is not keeping the commitments which it made in the offering plan. If this is the case, owners may contact the Attorney General by sending a letter to: Investment Protection Bureau – Real Estate Financing Section, New York State Office of the Attorney General, 120 Broadway (23rd Floor), New York, NY 10271.
As you may know, a homeowners association is an organization established to govern a private community. Typically it owns and manages some common property for20owners of private houses or condominium units. By buying a lot and/or home, an owner automatically becomes a member of the HOA of which it is a part. Before offering to sell memberships, a sponsor must file an offering plan with the Attorney General if sales of individual homes, lots or condo units are involved.
Most HOAs are corporations established under the Not-for-Profit Corporation Law. An HOA is similar to other corporations — it is governed by a board of directors elected by the members and a set of rules called by-laws. Books and records of financial transactions must be kept, taxes paid, and certain services provided to members. Usually the board has an annual budget prepared to estimate expenses, and then assesses each member a share of the costs.
HOAs vary greatly in the services which they provide. The developer establishes the scope of the association initially by setting out the services and expenses in the association’s budget. The declaration provides the means by which the association can enforce the members’ obligations and the by-laws set forth the procedures for running the association. Generally, the developer controls the association at first and relinquishes control to the individual owners some years later.
The primary purpose of the association is to protect and preserve the value of the privately and commonly used property. In furtherance of that goal there may be restrictions concerning pets; requirements as to fence height; or limitations on the number of cars allowed in the driveways. These rules often conflict with the desires of an individual owner but exist for the general good of the entire community. In addition, the association may have the responsibility to repair and maintain portions20of the community, such as roads, roofs, and recreation facilities.
The individual owner in a homeowners association has the opportunity to become involved and participate in the on-going affairs of the community, and the responsibility to assure that the association’s actions conform to the by-laws and declaration.
Typical Problems
Perhaps your HOA seems dormant — you never receive notice of meetings, nor are you given financial statements which explain how the assessments you pay are being spent. Perhaps repairs are neglected and snow not removed as quickly as you expect. Or a nuisance created by your neighbor is allowed to continue. Maybe one owner is allowed to build a deck and another is refused permission to do the same thing.
These problems may arise while the association is still under the developer’s control. Be aware that the HOA is an independent body whose functions must not be merged with the corporate functions of the developer. The developer creates and controls the association initially, but has a duty to protect the investment of the members and to respond to the needs of the association with a sense of fairness and good faith. From the time of the first closing with a member, the developer must abide by the by-laws of the association and the declaration in the same way that a later independent board must.
Get the Facts
The way to begin dealing with your problems with the board is to understand what rights you have. There are two kinds of research to do.
A. Check the documents for your HOA — the declaration, certificate of incorporation, and by-laws. Copies of these document should be available from the board of directors or developer; a copy of the declaration and by-laws is in your offering plan.
These documents should include information on:
• what the HOA is responsible for
• how the declaration can be amended (including percentage required)
• how members of the board of directors are elected
• how members of the board can be removed the powers and duties of the board of directors
• how annual owner meetings are called
• how special meetings are called
• what remedies exist when a homeowner defaults on his or her obligations including maintenance charges.
B. Look at the Not-for-Profit Corporation Law, the New York State law which governs the establishment of most homeowners associations. The decisions made by courts in cases involving the law are the case law which interprets the statute.
The Not-for-Profit Corporation Law (NPCL) is published as volume 37 of McKinney’s Consolidate d Laws of New York Annotated (“McKinney’s”) which can be found in law libraries, many lawyers’ offices, and in certain public libraries. Included in volume 37 are brief descriptions of case decisions.
Important provisions o f the NPCL and the sections in which they are found, include the following: An HOA may have different classes of members. NPCL §601
By-laws may be amended or repealed by the members with the appropriate vote, as provided in the by-laws. NPCL §602
A meeting of the members is to be held annually. NPCL §603
Members may call special meetings, as authorized in the certificate of incorporation or by-laws, or if at least 10 percent of the members wish to do so. NPCL §603
A board of directors may be elected at a special meeting. NPCL §604
Proxies (authorizing another member to vote for you) are permitted. NPCL §609
Members may request that elections be supervised by an inspector. NPCL §610
The right to vote may be limited by the certificate of incorporation or by-laws (For example, there may be no right to vote until the developer gives up control.) NPCL §612
Action may be taken on written consent of members without a meeting. NPCL §614
Members may demand to see the corporate books and records of accounts, minutes of meetings, and a list of members. NPCL §621
An action may be brought against20the corporation. NPCL §623
Directors may be removed with or without cause, as determined by the certificate of incorporation and by-laws. NPCL §706
The board of directors may take action without=2 0holding a meeting if all members of the board consent in writing to the action. NPCL §708
Certain actions by a director or officer constitute a conflict of interest. NPCL §715
Directors and officers must act in good faith and with reasonable diligence, care and skill. NPCL §717
Directors and officers may be sued for misconduct NPCL §720
Resolving the Problem: First Approach
If the board of directors is not complying with its own certificate of incorporation, declaration or by-laws, you should point this out, in a tactful way, expressing the expectation that the matter will be corrected. Sometimes this is all that is needed to solve a problem. If a simple oral request to an officer of the board fails, you can write a letter. It should be factual, brief and not hostile. Keep copies of any letters that you send, and notes of telephone conversations (date, time, who called whom, and gist of the discussion) in case the matter is not quickly resolved.
An attempt to influence the board is always more persuasive if it is presented by a significant number of members. If your problem is one that others are affected by, it is worth organizing the other members. If you do, and the attempt to change the situation is not successful, the organized group can always seek to elect new directors at the next annual meeting.
Retaining a Lawyer
If your efforts to resolve your problems with the board fail, you may want to retain a private lawyer. The Attorney General’s office cannot recommend private lawyers. However, a few points may be helpful.
It is a good idea to select someone with experience in handling HOA problems. You could begin looking for an attorney by talking with members in your or other HOAs and with attorneys in other specialty areas. If this fails, you may wish to contact a local Bar Association for referrals. Some lawyers will not charge for a single initial consultation or will charge only a minimal fee. Most lawyers will attempt to resolve any matter through negotiation before considering litigation, as litigation is costly and usually lengthy. Litigating against the board of an HOA, people with whom one lives, can also be very unpleasant.
In Conclusion
If serious problems arise, which the board is not addressing, such as a bank’s threatening to foreclose on an underlying mortgage or a developer’s failing to pay maintenance on unsold lots, it is important to act swiftly. Often such problems can be resolved, relatively simply, if members organize and act right away.
Remember that members of HOA boards are usually other owners who are serving without pay. They generally want to resolve problems and keep peace i n the community.
————————————————————————
FOOTNOTE:
1. Condos and co-ops are governed by different laws, so this information is not generally applicable to them. The Investment Pro tection Bureau – Real Estate Financing Section has published fact sheets for condo unit owners and co-op owners, both of which are available on request.
Office of the Attorney General – Peter C. Harvey – New Jersey
Criminal Justice Department – P.O. Box 080
Trenton, New Jersey 08625-0080
Phone: 609-984-1936 Fax: 609-292-3508
http://www.state.nj.us/lps/
Rank: No ranking.
Summary: Message from AHRC
Homeowners in homeowner associations report widespread insurance fraud, conspiracy, and racketeering by board members, managers, lawyers, and judges.
If you know of anyone being victimized by your board, lawyer, manager and insurance company assigned lawyers, please take time to send a written fraud Complaint by email, fax or mail by clicking File Complaint link below
Other Information: Click this link to see: Insurance fraud investigation by the New Jersey Attorney General
Office of The Attorney General
– Peter C. Harvey, Attorney General
Division of Criminal Justice
– Vaughn L. McKoy, Director
Office of the Insurance Fraud Prosecutor
Greta Gooden Brown, Insurance Fraud Prosecutor
(609)896-8877
John R. Hagerty
Division of Criminal Justice
609-984-1936
Fraud report hotline at (877)553-7283 or (609)896-8957 – Erica
Division of Consumer Affairs – 973-504-6200
Division of Criminal Justice – 609-984-6500
Division of Consumer Affairs: at 1-800-242-5846, visit the Division’s Web site at: http://www.NJConsumerAffairs.gov and/or e-mail by clicking the Letter or Complaint link below.
Here is a more recent press report on “HOA reform” efforts in New York. Here is what was sent out in April of 2015.
04.02.15 – New York AG on HOAs, condos and co-ops. There is much to be learned here! People, HOA, etc., homeowners and home buyers need to know what they have/are “buying themselves into,” and what can, and is happening to countless HOA homeowners across the country due to no fault of their own, but the non accountability of many states, in far too many of the HOA crimes and property thefts occurring. It appears NY is at least addressing it and offering assistance in some of the issues and abuses HOA, etc. homeowners are facing.
http://www.ag.ny.gov/real-estate-finance-bureau/hoa
Homeowners Association (HOA) |
I believe this paper was written by former NY Attorney general Elliot Spitzer a few years back. It looks like the same, or similar when I looked at it briefly.
http://www.ag.ny.gov/sites/default/files/pdfs/bureaus/real_estate_finance/HOA%20problems.pdf
http://www.ag.ny.gov
Homeowners Association (HOA) | http://www.ag.ny.gov
The Office of Attorney General’s website is provided in English. However, the “Google Translate” option may assist you in reading it in other languages.
ag.ny.gov
And:
New York – Tonight (04.02.15, I believe), our Real Estate Finance Bureau Chief Erica Buckley took questions about the rights of New Yorkers during #coop and #condo conversions. In case you missed it, know your rights as an #owner or #renter:
https://www.facebook.com/eric.schneiderman/photos/a.378463532245698.87546.289949387763780/816203655138348/?…
type=1&comment_id=816494138442633¬if_t=comment_mention
http://on.ny.gov/1G7Qv8T #UWS #NYC
Eric T. Schneiderman
Thank you Cynthia, Very well researched. This is the point of my article though, that I don’t want missed. The AG of every state is entrusted with protecting members of the state. One of the reasons HOAs are incorporated is for protection of the members. We incorporate under the state so that the state can enforce corporate laws and protect citizens. So why do they allow for HOAs to incorporate and then tell victims that they are dealing with a “civil” matter? It is NOT. It is a corporate matter and one that we should be able to count on our state DOJ to enforce–if not, then we could all just live under contract law. Because HOAs and deed restrictions are basically contracts. But then issues like the board following the contract, unjust contracts, ‘unconscionable’with terms so outrageous that they ‘shock the conscious.’ In many of these cases, one side of the contract obviously has all of the power and might use it to the detriment of the other side (homeowner). But politicians who are wooed by the CAI do not want to face the unfairness of the HOA deed restrictions so they simply ignore contract law and force us to form corporations that are supposedly for our protection. Well, we see how well that works. AGs enforce corporate law for others. Ask yourself why they do not enforce it for HOAs? They enforce it fiercely for Banks, health insurance, and the like–it is their job and they are falling very very short. Thanks for the info–I will make my way through the parts I haven’t seen yet.
Shelly, I did get your point and I agree wholeheartedly. Please tell me one other business, for profit, or non profit that when an impropriety, or wrong doing, and especially financial, or fraud, is known, obvious, or suspected that a state’s AG’s office, or a state’s investigative agency will not investigate? There is none that I can think of. No one tells the cancer non profits, or churches when a crime, or fraudulent act against their organization, or membership has been committed, or suspected that it is a civil matter. The HOAs exist in every state by statute and laws! I do not believe any state, or federal agency, and especially each states AG’s office, all that are taxpayer funded and has the power to investigate and prosecute should be able to turn an HOA victim away. Especially, state and federal housing agencies and in more recent years the CFPB also. I have spoken with others, too, on countess occasions about why the FTC has absolutely no guidelines, warnings, or other on HOAs. Look at the FTC’s info on other industries that operate in the USA like buying a car, or jewelry. There is an abundance of information, guidelines, laws and more. I don’t know if you recall but former NV Senator Mike Schneider did an On the Commons interview a few years ago in which he advised on how the states can stop the HOA abuses, end the criminality and oversee their operations within their states. Here is a link to that interview: http://onthecommons.us/index.php?option=com_content&task=view&id=306&Itemid=67
Shelly, your books, writings and advocacy concerning HOAs is absolutely incredible. Thank you for your time and talent and sharing it concerning an issue of such great importance to all Americans!