Category Archives: racketeering

HOAs As “Mini-Governments”

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guest blog by Deborah Goonan

A recent article published at Virginia’s TimesDispatch.com, has summarized the proliferation of HOAs as follows:

“(Homeowners’) associations are nearly ubiquitous for new residential housing in the Richmond area, embraced by developers as a way to handle long-term care of common amenities and by local officials as “mini-governments” that can help maintain order and property value.”

The article’s author, Ted Strong, interviewed several county officials on the subject. For readers who may doubt claims of some home buyers that it is nearly impossible to find HOA-free housing in many parts of America, just feast your eyes on the following blatant admissions by Richmond, VA, area officials representing Henrico County:

Kirk Turner, Chesterfield County’s director of planning, said his county wants the associations in the vast majority of cases. “From our standpoint, we actually encourage the creation of an HOA….”

At this point, “probably 100 percent” of new subdivisions in Chesterfield County of at least 20 lots have associations, Turner said.

“To me, the HOA is like a mini-government,” said Henrico County Attorney Joseph P. Rapisarda Jr.

There you have it. The ubiquitous nature of HOA-Land is driven by supply-side expediency and economics. The Developer gets to increase housing density, and therefore, profits. Local planning boards encourage HOAs, because such organizations are viewed as extensions of local government.

Developers love to preserve their “visions” – i.e. perpetual control – of communities they have created. Local governments love the fact that they can just sit back and collect property tax revenue, and leave strict code enforcement to HOAs.

Says Attorney G. Elmore, of the Community Associations Institute (CAI)-member Community Association law firm:

“Associations often help to preserve developers’ visions for common features or aesthetics.”  Elmore is an attorney at Chadwick, Washington, Moriarty, Elmore & Bunn P.C., which represents community associations extensively.

“Well-kept common features help property values and a neighborhood’s livability,” he said. “And associations are necessary if a neighborhood hopes to maintain aesthetic standards stricter than those in county laws.”

Ah, CAI’s vision now becomes crystal clear: without HOAs, aesthetic standards would suffer and property values would plummet. Or would they?

Do we really buy Elmore’s premise?

I think it is true that HOAs can, and often do, enforce stricter aesthetic standards than counties. But, is that a good thing for residents? Not necessarily, when strict standards result in costly lawsuits over flagpoles or home-based businesses.

And taking it one step further, Elmore fails to mention that HOAs can, and often do, enforce standards that limit Constitutional rights of free speech and expression. He also forgot to mention that HOAs tend to fall short when it comes to upholding important government duties such as conducting fair elections and handling disputes over violations with sufficient due process.

Isn’t that the least residents should expect from “mini-governments?”

But wait a minute – back in 2007, CAI issued the following press release in regard to the Supreme Court decision in Committee for a Better Twin Rivers v. Twin Rivers Community Association. Back then, the court decided that HOAs are not governments, and CAI happily echoed the sentiment. Here’s a quick refresher:

• The Twin Rivers decision held that residents of an association not only have the right to express themselves; they also have the freedom to adopt reasonable policies regulating expression in their communities.

• Community Associations are not governments, but rather, private agreements among neighbors; the New Jersey Supreme Court ruling indicated that the government should be respectful of these private agreements.

• Homeowners’ rights of expression and speech are not changed in New Jersey or elsewhere by the Twin Rivers decision, but rather, the case affirmed residents’ freedom to adopt reasonable policies governing such expression.

• Although courts across the country may find the decision in Twin Rivers persuasive, it does not have the binding authority of precedent outside of New Jersey.

• At its core, the Twin Rivers decision supports the rights of residents within community associations to make reasonable decisions for themselves without being second-guessed by courts or politicians.

Well, CAI better get their local government allies on the same page. Are HOAs “contractual agreements” or “mini-governments?”

The last statement about residents making decisions for themselves is blatantly false on its face in most Associations. The Developer creates rules long before there are residents, even before construction begins. And the HOA Board – often controlled by Developers for many years – makes nearly all decisions on behalf of its residents. In reality, the Twin Rivers decision supports the rights of the HOA Board to make most, if not all, decisions, and not be second-guessed by any branch of US government.

Last but not least, note the veiled admission of classic CAI philosophy – that the HOA Board of Directors (aided and abetted by the Community Manager and/or the HOA Attorney) is absolutely essential to maintaining the “vision” by “taking the lead on enforcement, “ because individual owners cannot be relied upon to exercise good judgment.

“It’s a lot easier to maintain a certain style or look or quality if you have an organization taking the lead on enforcement as opposed to relying on individual owners,” Elmore said.

(link to Times Dispatch article on HOAs as mini-governments)

(link to CAI news release about Twin Rivers decision in 2007)

 

The Death Of Common Sense

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Living in Colorado, I know there’s a big problem in this state with coyotes killing pet cats and dogs. Driving up and down suburban boulevards you see countless posters asking for people to help find a missing pet. In almost every case the pets have been killed by coyotes. And it’s not just small pets, either, it’s German shepherds, boxers, even pit bulls and mastiffs. When a pack of coyotes starts ‘harvesting’ there’s no breed of dog that can’t be easily taken down.

Some communities in Colorado have populations of mountain lions that exist primarily on household pets. In fact, the Division of Wildlife says Colorado has a population of between 5000 and 8000 mountain lions. The attacks are bold. It just amazing that more humans haven’t been killed by wildlife.

Nevada’s KTNV Hall of Shame report by Darcy Spears shows there’s an easy way to end backyard pet killings. But Homeowners Associations across the southwest refuse to recognize the solution: a four inch high fence top roller that prevents predators from jumping fences. It’s easy. It’s inexpensive. It’s certainly not a threat to power-hungry HOA board members.

But in HOA Amerika, self-interested board members don’t seem to be interested in welcoming sensible solutions to neighborhood problems. Their personal power trip is sometimes just beyond reason.

(link to KTNV story on solution to pet killings)

 

Dumber Than Dirt In Delaware

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The Maple Hill Homeowners Association is becoming the laughingstock of Bear, Delaware. There are only 23 homes in this HOA, but these idiots have picked the most unbelievable fights with each other and have made their own neighborhood toxic to anyone thinking of buying a home there.

Dues are cheap. About $280 a year. But the petty bickering and the downright nastiness has churned up more than $45,000 in legal fees as various neighborhood crybabies run to the courts to try to get their problems solved.

Ken and Joanne Holbert have tried for years to pay their homeowners association dues by sending checks to the HOA’s mailbox. The president, Jutta Douglas, refused to accept the certified mail in a patently obvious effort to slander the couple with terms like “deadbeat” and “freeloader.” Those actually are actionable terms and the Holberts could probably win a good-sized slander lawsuit.

The numb-skulls at Maple Hill then filed liens against the Holberts’ home. Under Delaware law, you don’t even have to notify a homeowner that a lien has been filed. Just file and foreclose. It’s mean. It’s vulgar. It’s the kind of thing that’s led to violence in a number of other states.

A couple of Delaware politicians are talking about creating an Ombudsman’s Office to deal with petty strife like the viciousness in Maple Hill.

You can fix a law. You can change the way that some HOAs operate.

But you just can’t fix stupid.

(HOA disputes in Delaware)

 

What Should Federal HOA Regulation Look Like?

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guest blog by Deborah Goonan

We have a huge, systemic problem in the US. It used to be that regulation was enacted and enforced to protect the People, the taxpaying constituents of government. The purpose of regulation was to uphold individual rights and to honor our federal and state Constitutions.

Over the years, that original purpose has been perverted by pervasively symbiotic public-private partnerships between large corporations and every level of government. Unfortunately, many of America’s elected public servants have sold out to special business interests that contribute heavily to campaigns and pay lobbyists to create and promote self-perpetuating legislation.  Even some of our elected judges have shifted their loyalties to corporate and government cronies instead of individual Americans.

The great citizens’ challenge presented to us in the 21st century is restoring America’s values to upholding the inalienable rights of its people. American government’s focus must shift away from protecting profits and revenue of power players, to the detriment of We the People.

In the HOA realm, the current power players are Developers, NAHB, CAI, NAR, FHA, Freddie Mac, Fannie Mae, HUD, ULI, and local governments that benefit from increased property tax revenues. Forgive me if I might have missed a few.

It is a daunting problem. Where to begin?

I have observed that there are a few instances where the HOA almost always loses in court: discrimination based upon federally protected-class status like race and disability are two that come to mind. But most rights to freedom of speech and expression, access to due process, and use of personal property are significantly limited under the cover of so-called contractual agreements written by the power players.

The disturbing truth is that corporate real estate interests have gained excessive control and nearly free reign to exploit HOA owners and residents because laissez faire government policy and practices aid and abet their efforts. But We the People have elected these so-called leaders! (Or have chosen not to vote)

So the first order of business is for individual Americans to reassert our inalienable rights. That starts with becoming educated constituents and voting for public servants based upon their personal character, and not upon false rhetoric supported by wealthy corporations. We need to elect men and women that truly serve the interests of Americans as individuals.

The second order of business is to push for HOA legislation that upholds the Constitutional rights of owners and residents. The overall goal is to limit the power HOAs exert over owners and residents – to get HOA de facto government out of the way! It may sound contradictory, but Federal regulation of HOAs must result in fewer, less complicated laws governing their operation.

Federal Regulation would start by stripping HOA Boards  – private corporate entities – of their authority to enact rules, to fine homeowners, and to lien and foreclose on property. All of these matters would be deferred to local code enforcement and the court system on a very limited basis, with a strict litmus test: does the transgression of the owner or resident rise to the level of causing significant harm to fellow citizens? And significant harm must not be defined as “anything that might potentially harm property values,” because intrinsic human values must trump values of non-living things and possessions.

Because of the perverted nature of regulation in America, where corporations often create legislation to regulate themselves, in my opinion, a global approach is necessary.

Federal legislation, therefore, must be viewed as the next generation of Civil Rights in America.

1)   No entity, public or private, must be permitted to unduly limit or alter the inalienable rights of any American, as they are spelled out in the Constitution and the Bill of Rights.

2)   Any contract that limits the rights of either party must be set forth in plain language, and explicitly acknowledged by all parties – and the terms of the original contract cannot be subject to modification after the fact, without the express written consent of each individual party.

3)   Furthermore, the government shall have the absolute duty to uphold individual Constitutional rights, and to enforce appropriate penalties against individuals or entities, public or private, that violate those rights, including, in the case of elected officials, removal from office.

Those three sentences alone clearly limit the power and authority of corporate or government entities over Americans.

The end result would be the automatic invalidation of the majority of offensive and trivial provisions in CC&Rs, just as previously enacted federal Fair Housing legislation has invalidated overtly discriminatory deed restrictions real estate sales and leasing practices.

No complex, lengthy regulatory manuals required. Less truly is more.

Another Flag Fight

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It always saddens me to see these stories. But with the number of flag fights going on around the country, is it any wonder that many of us think of the HOA movement as fundamentally anti-American? The latest is the Fieldstone Homeowners Association in Greenfield, Indiana.

(another veteran slammed for his flagpole)