The Sinclair revelation: media control of HOA news

Numerous times in the past I’ve accused the media of biased, pro-HOA and anti-member news that misrepresents the facts about HOA-Land, misleading their viewers.[1] I’ve argued that there is an “unspoken alliance of ‘no negatives abut HOAs’” involving the media.[2]

Today, the revelations that Sinclair media ownership mandated news to be aired by its stationed across the country tells it all.[3]  Trump’s support for a merger with the Tribune company, another large media firm, is dangerous as it will affect 74% of the news outlets.  It has been reported that Sinclair’s news anchors had to read the same script about fake new, verbatim, 9 times in a day.  Dangerous, very dangerous for a free and open society that’s necessary for the healthy functioning of a democracy.

I complained to several Arizona TV stations to no avail.  Especially those smiling, laughing, joking ‘bobbing heads’ who dared to proclaim the corporate line that they tell the whole truth, that they ask the hard questions, and that you can trust them. Yea, right!  They are just pawns in the bigger political game, collecting their paychecks.

There are conscientious reporters like Judy Thomas of the KC Star[4] who tried to do what’s right, but ran into the corporate bias wall.

It should be no surprise that HOA-Land news is also under the thumb of private, corporate special interests. Where are the these media corporations getting the lowdown on HOAs?  Can you guess?  Who is the dominant, single national entity that lobbies state legislatures and issues tons of self-promoting propaganda for media consumption?  Yep, you guessed it!

References

[1] See examples: Arizona Republic: A new low in media ethics and a violation of the public trust. (2007); Continued national HOA problems and the failure of the media (2007).

[2] Good night and very good luck – the unspoken media HOA alliance (2012);  HOA-Land success aided by the failure of investigative reporting (2017).

[3] Sinclair Made Dozens of Local News Anchors Recite the Same Script (NY Times).

[4] KC Star: problem with HOA? Don’t go to CAI (2016).  Excellent series, but failing to address substantive  constitutional issues.

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Published in: on April 2, 2018 at 8:18 am  Comments (3)  

Resurrecting the argument for a homeowners bill of rights

This demand for a homeowners bill of rights by homeowner rights advocates had its play back in the 1997 – 2008 period, some 10 years ago. There was:

  • the AHRC’s 1997 bill,[1]
  • Lois and Samuel Pratt’s 1999 bill,[2]
  • my 2000 address to the AZ Legislature[3],
  • the 2006 AARP bill of rights,[4]
  • and my 2008 “Members Bill of Rights” amendment to CLRC.[5]

And there are undoubtedly others that I missed. Deborah Goonan recently re-posted a 2015 article[6] speaking of no Bill of Rights and constitutional violations of the 14th Amendment.  In 2017 the California Legislature adopted a limited bill of rights dealing with member political free speech.[7]

A new look at homeowner rights is needed, one that takes a down-to-earth approach and focuses on the common CC&Rs covenants and bylaws that read like,

  1. If there are conflicts between the provisions of Arizona law, the Articles, the Declaration, and these By-Laws, the provisions of Arizona law, the Articles, and the By-Laws (in that order) shall prevail.
  2. these By-Laws [Declaration] may be amended only by the affirmative vote or written consent, or any combination thereof of Members representing at least 51% [67%] of the . . . votes in the Association.
  3. no amendment may remove, revoke, or modify any right or privilege of Declarant . . . without the written consent of Declarant

Over the years I’ve discovered that the courts have universally upheld the broad amendment covenant as generically stated in (2) above.  The basis of their decisions is the very dangerous and overly broad interpretation that homeowners agreed to be bound[8] by the CC&Rs and bylaws.   Note that (3) above carves out an exception for the Declarant that requires his explicit consent, while accepting the majority rule principle in regard to the members. But, this “acceptance” to be bound by majority rule violates a fundamental right of citizens in regard a governmental “taking” or eminent domain action.

In many instances the courts have required 100% consent when the amendment adds new covenants, covenants not found in the CC&Rs, the most notable being changing from a voluntary HOA to a mandatory HOA.  This would be inconsistent with (1) above that holds that the law of the land prevails, and which of course, the buyer also agreed to. But, CAI comes to the rescue and prevails in the courts that the CC&Rs and bylaws contain valid waivers and surrenders of fundamental rights, even to the extent of accepting implicit (not stated but presumed consent) waivers and surrenders as valid.

Hold on! It is long held legal doctrine that the surrender and waiver of these rights must be explicit, one by one. And that, under contract law, there must be a meeting of the minds with full consent and no misrepresentation in the buying process. I have concluded that,

Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.

The point I wish to make is that the absence of any meaningful bill of rights that genuinely protects the rights of HOA members is ab initio (from the beginning) a rejection of democratic norms and institutions.  The HOA cannot, therefore, be considered democratic by any means regardless of the propaganda by CAI and other pro-HOA supporters.

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis.

. . . .

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable.[9]

Simply unbelievable!  (In face of subsequent advocate criticisms, CAI began speaking of HOAs as a business, and we are seeing more and more statements that when a homebuyer signed his real estate contract, he was actually investing in a business.  Unbelievable!  Shades of George Orwell’s NewSpeak from his novel, 1984, where people are indoctrinated to hold 2 opposing views at the same time, and be at peace.)

What is intentionally absent — yes, intentionally otherwise the renowned CAI layers would have to claim incompetency regarding the law – is a Homeowners Bill of Rights.  Can you imagine that if the HOA framers, those stakeholders, of the HOA concept had actually met and discussed with knowledgeable and informed public that there would be protections for homeowners?  Can you imagine?

What the absent, yet informed public, would have added was a Preamble to an Amendment to the CC&R that would have been like that found in the Bill of Rights:

 Preamble to the US Bill of Rights

“THE Conventions of a number of States, having at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution:”

The basis for the BOR was a distrust of government and the need to further protect the people.  Regarding the HOA documents, the 9th and 10th Amendments, as applied to the HOA legal scheme, would prevent the broad interpretations that have been and are continuing being held by the courts.  No more generalities, except in favor of the members.  If it was good for America over 230 years, it must be good for HOA-Land!

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The 9th Amendment simply says that if it ain’t specified – enumerated — in the governing documents, it belongs to the membership.  No more broad interpretations of waivers and surrenders of rights.  The 10th Amendment simply says that if the members did not explicitly agree to certain HOA powers (delegated to), it belongs to the membership.

This is the argument and approach needed to get a Homeowners Bill of Rights accepted by state legislatures.  It should be a national campaign by all advocate groups in all states for their next legislative session.  There is time to organize and prepare.

 

References

[1] See “Short History” in co-opting the HOA “homeowners bill of rights”, Elizabeth McMahon, 1997.

[2] See A BILL OF RIGHTS FOR HOMEOWNERS IN RESIDENTIAL COMMUNITY ASSOCIATIONS (1999).

[3] Statement to AZ Legislative Homeowners Association Study Committee, 2000.

[4] A Bill of Rights for Homeowners in Associations, AARP HOA Bill of Rights, David Kahne 2006.

[5] Supra, n. 1. “CLRC” is the California Law Review Commission.

[6] Let’s Get Some National Attention on HOA, Housing Issues, Deborah Goonan, 2015 original post.  

[7] A California true HOA Bill of Rights (SB 407).

[8] For a summary of the issues regarding the agreement to be bound position, seeConsent to be governed, No. 4, HOA Common Sense: rejecting private government.  The notes contain very important authorities on this issue.  (In only one case did a court reject this position because it felt that the amendment exceeded the reasonable expectations of the homeowner.  For example, having part of their assessments go toward a private entity unrelated to the HOA).

[9] CAI CEO Skiba in his April 2, 2008 Ungated blog entry.

Published in: on March 18, 2018 at 12:07 pm  Comments (1)  

HOA member liability under court verdict: $90,000 each

So, you like your HOA. Nothing to worry about.  All those complaints by homeowner rights advocates won’t affect me in my HOA. I love my HOA. The HOA board does no wrong, and anyway, the HOA has insurance. Not so!  Well, as the tide is slowly turning. HOAs are now being exposed as not so perfect and not so liability free.

A recent Las Vegas court decision awarding $20,000,000 – that’s right — to a Lamplight Village homeowner based on a seemingly trivial failure by the HOA to maintain a swing set will cost each member of $90,000.[1]  According to the report by KTNV, 13 Action News, the HOA insurance company and HOA refused to settle for a mere $2,000,000. The membership was never told about the lawsuit and the question is now being raised regarding intentional misconduct and negligence.

Seeking relief, members are looking to their Homestead Exemption laws to shield them from non-consensual liens.  In Arizona, and in other states, homestead exemption does not protect HOA members from HOA claims. While the suit is against the HOA, it has authority to collect special assessments, and this is one special assessment, to cover the court damages.  Or, it can file for bankruptcy and be run by a court appointed receiver.

HOA members are playing Russian roulette with their HOA, as my comments above show.  Members seem to have adopted an attitude of, I’ll take my chances.  But, an unchecked HOA board, a rogue one especially, and widespread apathy by the membership leaves the member at risk that can amount to a huge risk.

I brought this looming liability to the attention of the public several times.  In my analysis of the 1964 HOA “bible,” I wrote in 2006,

It [the Handbook] advises that the states will protect the HOA from any homestead exemption because of this priority of liens (p. 322) but urges the need to insert wording to grant the mortgagor a priority lien before this “developer” lien (p. 321). The home-buying public protections, as was the intention of the various state legislatures when creating the homestead protection, was intentional disregarded by the advertising of this technical oversight.[2]

In 2007 the Arizona Legislature rejected SB 1330 that would have restored the homestead exemption.[3]  The loss of this protection that was enjoyed by citizens not living in HOAs, this special law for special entities, is an instance of cruel and unusual punishment against the homeowner in favor of the survival of the HOA. I made this argument in HOA Common Sense, No. 8,[4] which included arguments against consent to be governed, in No. 4.[5]

Did the homeowner consent to have his rights to the exemption denied with the full knowledge that he gave his consent by accepting his deed? Is the HOA lien indeed a bona fide consensual lien that allow the denial of homestead exemption? Read the arguments presented at the Arizona legislative hearing.[6]

 

Living in HOA-Land, that

“collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States,”

is fraught with hidden liabilities.

 

References

[1] Homeowners under cloud of $20M swing set verdict demand answers from HOA.

[2] Analysis of The Homes Association Handbook,

[3] Arizona SB1330 restores lost homestead protection in HOAs.

[4] HOA Common Sense, No. 8: Draconian punishment and intimidation.

[5] HOA Common Sense, No. 4: Consent to be governed.

[6] SB1330: Reflecting Fundamental Principles of the Arizona Constitution.

Published in: on March 6, 2018 at 7:45 am  Comments (7)  

The myth of ‘affordable housing’ in HOA-Land

CAI and other pro-HOAs promoters have used the misleading argument of affordable housing.  See how the addition of HOA fees deceases the price of your real affordable house according to mortgage loan requirements.

First, understand the following loan requirements and home expenses.

Your salary must meet the following two conditions on FHA loans:

o    The sum of the monthly mortgage and monthly tax payments must be less than 31% of your gross (pre-taxes) monthly salary.

o    The sum of the monthly mortgage, monthly tax and other monthly debt payments must be less than 43% of your gross (pre-taxes) monthly salary.

FHA.com

And,

People who opt for housekeeping shell out an average of $285 a month, while HOA dues ($210) and landscaping ($144) followed behind. A home security system costs $130, slightly more than pool care ($123). Snow removal ($84), septic service ($67) and trash and recycling collection ($55) proved more affordable.

More than meets the mortgage: Survey finds the hidden costs of homeownership

Affordable housing myth is dispelled!

Then click on the link below and use its preset numbers.

Note that Condo/HOA fees are set to zero. Note the highest price you can afford to buy.  Now, click on Edit and add, say $200 as HOA fees. Note the lowered price of a home you can afford to buy.  That’s reality!  CAI slogans are a misrepresentation of affordability!

https://www.realtor.com/mortgage/tools/affordability-calculator#summary

Note, also, that  this Realtor.com page buries HOA fees as separate from monthly expenses, and continues to show monthly expenses the same although HOA fees were added.  Trying to hide something???

Published in: on February 27, 2018 at 9:07 am  Comments (1)  

HOA-Land’s meaning of “the common good”

In HOA-Land (see definition below), the common good stops at the real estate subdivision or condo.  Has the Evil Empire with its Ministry of Public Enlightenment and Propaganda distorted and redefined the traditional meaning of common good? See CAI’s latest PR propaganda, HOAS in 2020.

Author Robert Reich has this to say about our society and the loss of common good.   His view:

Yet the common good seems to have disappeared. The phrase is rarely uttered today, not even by commencement speakers or politicians.

There’s growing evidence of its loss — in CEOs who gouge their customers and loot their corporations; Wall Street bankers who defraud their investors; athletes involved in doping scandals; doctors who do unnecessary procedures to collect fatter fees; and film producers and publicists who choose not to see that a powerful movie mogul they depend on is sexually harassing and abusing women.

We see its loss in politicians who take donations from wealthy donors and corporations and then enact laws their patrons want, or shutter the government when they don’t get the partisan results they seek.

Definition of HOA-LAND:  HOA-Land is a collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States. For more see, Defining HOA-LAND: what it is.

Robert Reich’s new book, “The Common Good,” is out Feb. 20.

Published in: on February 21, 2018 at 1:41 pm  Comments (4)