HOA Organizational Development – a fresh approach to the ills of HOAs

Here’s a glimpse of my new web page at HOA Organizational Development

INTRODUCTION

Organizational Development (OD) is a fresh approach to resolving the persistent 49 year problems with the HOA legal model and scheme. It is not simply more legal solutions or more pontifications by lawyers or property managers attempting to correct the dysfunctional behavior within communities governed by HOA regimes. OD is a comprehensive behavior based approach concerned with the HOA climate, or HOA “personality,” which encompasses member’s attitudes and beliefs. It is also concerned with the HOA culture, its deeply seated norms, values and behaviors that members share. These assumptions, values and norms reflect members’ unconscious thoughts and interpretations of their organizations.

CONTENT

What is organizational development?

Why the need to develop HOA organizations?

What are the primary causes?

Member behavior in dysfunctional HOAs

The mission for HOA organizational consultants

Information on HOA regimes –

Constitutional Local Government

HOA Constitutional Government

Author Backgrounder

Why should taxpayers pay private entity HOA assessments? It ain’t fair!

Good golly Miss Molly, what are we gonna do?  What are we gonna do?  If state governments refuse to pay assessments on HOA property it owns by foreclosure, how is the HOA to survive?  The “stakeholders”, which does not mean the owners but all those vendors who feed off the HOA income streams, are aghast! How are we gonna make a living?  How are we gonna make a living?  Good golly Miss Molly!

A Tennessee bill is proposing an exception to its laws to exempt the state from having to pay HOA assessments on properties that it took over by foreclosure. “But state lawmakers are considering a bill that hands those foreclosure charges to the rest of the homeowners’ association instead of the municipality. What it does is increase the cost to the homeowner.” (TN bill would pass foreclosure fees to neighborhoods). 

Um, what happened to the battle cry in favor of HOA foreclosure, “It ain’t fair for others to pay for deadbeat homeowners?”  Why should taxpayers not living in the private contractual HOA governed community, with its private amenities, pay for deadbeat HOAs?  It ain’t fair! 

As with any business enterprise, when times are good all defects are masked and hidden from daily concerns.  Policies, procedures, rules and regulations, and the legal structure and purpose of the entity can escape serious concern.  The world is good.  HOWEVER, when things start falling apart, like the financial quagmire facing HOAs, the poorly formed and drafted organizations functioning under faulty premises and legal structure start falling apart.  And this is what is happening to defective HOA legal concept.

I cannot count the number of times state legislators told homeowners that they had agreed to a contract and now that it is working against them they want the legislature change that contract. NO, was the position of the legislator.  Well, the nature of the CC&Rs contract is defective as it imposes a financial liability on the members much like a partnership with its joint and severable liability on all the partners. Also, the member liability is much like buying stock in a small closely-held business with limited ability to raise additional funds except from the members themselves.  It’s all part of the “deal.”  Didn’t the national pro-HOA lobbying organization explain that to you?

Or, were you just told that the HOA was a great way to preserve property values?

And let’s not forget that state legislatures have granted the HOA “special dispensation” in terms of special laws for a special entity – no oversight and very little HOA accountability.  They have played their part in creating the HOA financial quagmire.  Instead of a city or two going bankrupt, the state has set the stage for hundreds of communities governed by HOAs to go bankrupt. 

For the state to pay assessments would be like throwing good money after bad money.

To the Sovereign of Arizona: where are the checks and balances on HOA governments?

I found the following resolution by the Arizona Legislature to re-affirm its sovereignty over Arizona personnel and its right to serve as a check and balance on the Federal government very intriguing.  I keep thinking about why the “Sovereign of Arizona” believes checks and balances are not needed with respect to the independent, private governments known as HOAs, to which it has given its active support and cooperation.

Apparently, this concern for government checks and balances has been found not necessary when it comes to HOA governments.  Apparently, obedience to the Arizona and US Constitutions with respect to due process protections and the equal protection of the laws for citizens living within these regimes has been found not necessary.  It seems that the warnings of James Madison in The Federalist Papers, #51 have been ignored:  “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary”.  Somehow average people become angels who can do no wrong when they become an HOA board member.

I would think that the citizens of Arizona do indeed need the long arm of the Federal government to serve as a check and balance since Arizona, and all other state governments, has failed to standby and to uphold the US Constitution. I think it is probably necessary for the Federal government to commandeer and nationalize Arizona personnel who participate in violating the US Constitution.

See The FEDS must restore law and order in secessionist HOA governments

  

SENATE CONCURRENT RESOLUTION 1016 (2013)

A CONCURRENT RESOLUTION

proposing an amendment to the Constitution of Arizona; amending article II, section 3, Constitution of Arizona; relating to the rejection of unconstitutional federal actions.

 Be it resolved by the Senate of the State of Arizona, the House of Representatives concurring:

 1. Article II, section 3, Constitution of Arizona, is proposed to be amended as follows if approved by the voters and on proclamation of the Governor:

 3. Supreme law of the land; authority to exercise sovereign authority against federal action; use of government personnel and financial resources

Section 3. A. The Constitution of the United States is the supreme law of the land to which all government, state and federal, is subject.

 B. To protect the people’s freedom and to preserve the checks and balances of the United States Constitution, this state may exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the constitution by doing any of the following:

1. Passing an initiative or referendum pursuant to Article IV, part 1, section 1.

2. Passing a bill pursuant to Article IV, part 2 and article V, section 7.

3. Pursuing any other available legal remedy.

 C. If the people or their representatives exercise their authority pursuant to this section, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with the designated federal action or program.

 2. The Secretary of State shall submit this proposition to the voters at the next general election as provided by article XXI, Constitution of Arizona.

For AZ HOAs, public roads means public laws prevail

An interesting federal case came to my attention that involved public access to public roads. In this Puerto Rican case, Watchtower Bible [Jehovah Witnesses] v. Municipality of Santa of Isabel, CIV. NO. 04-1452 (2013), the First Circuit overturned the District Court’s decision and held that the Jehovah Witnesses’ free speech rights were violated.  This case was the remand from the First Circuit in Watchtower Bible v. Sagardia de Jesus, 634 F.3d 3 (2011)).

Shades of Marsh v. Alabama (326 U.S. 501), that 1946 federal case where Jehovah Witnesses attempted to distribute literature in a company town with public access. WOW! (Cited in  Sagardia de Jesus).  Marsh led to the US Supreme Court’s “public functions” test to determine if private organizations were state actors. (Today, there are other tests for HOA state action that nobody seems willing to pursue).

The municipality operated a Public Housing Agency, similar to the “projects” build in the 1950s in Chicago and New York City.  Where there are unmanned gates (“unmanned urbanizations”), entry to the public road is based upon acceptance by a resident who answers a buzzer or gets a call from the visitor. However, Puerto Rico has explicit laws that require all roads to be public roads open to all the people, with the usual police powers exceptions for the health and safety of the residents.  Like criminals don’t get access, etc.

 In dealing with the remand, to tighten the rules in accordance with the laws, the court noted that,

If access to public streets can be denied to them, then access can be denied to anyone. For example . . . the press could also be prevented from entering a gated community to cover the reactions of residents to a court ruling, as that in this case.

The court made the following general statement that has direct application to private government HOA regimes (my emphasis),

 Even today, many nations of the world inadequately protect, or worse, fail to protect, these rights that we often take for granted. This case demonstrates this Nation’s deep history of protecting civil liberties. Any antipathy by individual residents of gated communities towards Jehovah’s Witnesses or members of any other religious faith should yield to common sense and respect for the Rule of Law, product of the United States and Puerto Rico Constitutions.

Combatting the CAI happiness in HOAs surveys

It is the CAI sponsored/conducted surveys of overall “happiness in HOAs” (my words) that advocates must come to deal with.  The surveys must be challenged and confronted, because the HOA lobbyists will show them, with a smile, to your state legislators. And then they will point out several other similar surveys. The legislators will simply glance at the data, smile, and say, “How can I help you?”

It is accepted doctrine, especially in the courts, that if a statement is not refuted it is taken as true. Same applies here when arguing for HOA reform legislation.  The surveys can be challenged on several points, such as, biased surveys even though the reputable Zogby conducts the actual survey under the sponsorship of CAI;  the questions asked and not asked; and the conclusions drawn from the data presented if you obtain access to the actual survey questionnaire and unedited responses. (Any reputable organization will provide this information as verification of its conclusions, as is standard operating procedure with any validly conducted research).

Take the latest CAI 2012 survey under “Association Rules”  that contained an assertion that 25% — note not 5% — had a  “significant” personal issue or disagreement” with their HOA. It also stated that just 42% were satisfied with the outcome. Yet, the survey concluded with the finding that just 8% dissatisfied with their board: “This strongly suggests that the vast majority of residents recognize and appreciate the net benefit of living in their communities—even when there are differences of opinion.”  The survey did not go into the nature of the disputes.  Were they trivial, or did they involve homeowner rights and the fair and just treatment of homeowners?

The following question was asked under “Pre-purchase Awareness:”  Did the fact that your current home is in a community association make you more likely to purchase or rent your home, make you hesitant about purchasing or renting your home or have no impact? An interesting question that indicates an awareness of advocate arguments that if they knew the whole truth about HOAs they wouldn’t buy into an HOA.  Of course the survey revealed that 64% indicated “no impact” and 29% indicated “more likely,” for a 93% positive view of HOAs.

However, no one was asked to read my Truth in HOAs Disclosure Agreement and its comments from readers, for example, that provided a lot of material information about HOA life.  What do you think the response would have been?  But, if nobody tells the legislators about the Truth in HOAs disclosure, or can get the local media to run a survey, then the legislators can pretend ignorance, or at least ignore the babblings of a few malcontents. 

It seems that the predominate attitude of the vast majority of state legislators is that the overall benefits of HOA legal scheme far outweigh any concerns for homeowner constitutional protections  – due process and the equal protection of the laws.

CAI’s Research Foundation makes the following broad claims in its Statistical Review (my emphasis),

Because of the fiscal challenges faced by many local municipalities, communities are often created with the stipulation that the developer will create an association that will assume many responsibilities that traditionally belonged to local and state government.  This privatization allows local jurisdictions to permit the continued development of needed housing without having to pay directly for that infrastructure through property taxes. . . . Community associations not only maintain home values, but also reduce the need for government oversight and expenditures by providing services, assigning payment responsibility to homeowners and being responsive to local concerns.

Read the above carefully!  Where are the protections for homeowner rights under the contractual, not public domain, nature of HOA governments?  There are no protections as one would expect under our system of democratic government.  That is inexcusable! And state legislators do not see any problems with private governments operating outside their state and US Constitutions.

 

If the above surveys and conclusions by CAI are not challenged, life will remain difficult for meaningful HOA reforms.