The Pursuit of Happiness Under Authoritarian HOA Regimes

I renamed this article by Gary Daddario, “The Pursuit of Happiness” (Common Ground, Sept/Oct 2009, CAI) to “The Pursuit of Happiness under Authoritarian HOA Regimes”, which more accurately reflects the state of affairs and conditions within homeowners associations.  The article must be read with this understanding in order for the reader to understand the unstated premises underlying Daddario’s pronouncements.

For example, In community associations, the foundation for problem-solving is the association’s rules and regulations”  must be understood that the R & Rs are designed for  maintaining property values without concerns for the protection of individual property rights, which are presumed to have been granted carte blanche to the HOA board.  The CC&Rs “constitution” does not admit to individual liberties protected by state laws.   “The board and its attorney also should ensure the rules are fair and provide equal treatment to all residents of the community”  must also be a understood within the objective of maintaining property values.  There is no room for exceptions under a strict interpretation of these guidelines, and none is mentioned.  In contrast, state constitutions contain such protection of individual rights in their Declaration of Rights.

However, I am particularly disturbed by the advice for the adoption of HOA rule enforcement procedures without reference to civil/public government laws and legal procedures. “Once carefully drafted rules are in place, boards should develop their own process for enforcing them.”  Daddario, a CAI member attorney, then offers a procedure that places the HOA board in the same position of a county or district attorney who prosecutes violations of the law, or “crimes against the state”.  (A crime is a violation of law that affects the society as a whole and the state sues on behalf of all its citizens in their best interests.  Sounds familiar to those pronouncements of HOA enforcement for the benefit of all the members?)

The author advises that 1) “the HOA Observe the violation or receive the complaint. This represents the board’s introduction to the issue”, and 2) “Conduct a factual investigation of the alleged violation.”  But, isn’t this what the prosecutor and police do?  Isn’t the HOA acting as if it were a civil, but private, government?  Except, of course, as we all know, the HOA’s covenants (laws) and procedures fail to measure up to or conform those of public government. (For more detailed analysis of HOA government vs. public government, see Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs).

 The member is being shortchanged!  The astute, if I may, HOA attorneys well know that “after notice and an opportunity to be heard” falls short of the Supreme Court’s rulings on due process, which require an independent tribunal where the parties, including the accused member,  are allowed to present evidence and witnesses, and to question accusers and witnesses, if any.  This is absent from the article.  (For those not in the know, CAI attorney lobbyists in Arizona killed such a law that provided bona fide due process for HOA disputes by means of  Office of Administrative Hearings adjudication).

Advisory statement (1) above also raises the question of who can file a complaint with the board?  The landscaper?  A visitor? The management firm/manager?  Anybody?  Or must there be a “person with standing” as required in civil court?  What about a disgruntled neighbor who got it in for another member?  Or a board member who got it in for the accused?  We all know very little, if any, investigation occurs in the HOA enforcement process. Usually, a fine is the first notice of an alleged violation!   But, this doesn’t stop the HOA attorney from acting to enforce the board’s wishes, and paying little or no heed to the rules of civil procedure (generally 11(a) or (b)) that requires the attorney to attest “that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and warranted by existing law . . . ” 

These recommended procedures and HOA “laws” flaunt any semblance of a fair trial or due process concerns for the member, but do exhibit an elevated position of the HOA’s “laws” (CC&Rs, bylaws and R & Rs) over individual rights and liberties, as possessed by all those state residents not living in HOA-land.  And these protections are neglected in this article since CAI does not admit to, accept, or is willing to discuss any downside to living in HOA-land.

I am justified in renaming the article as I have, “The Pursuit of Happiness Under Authoritarian HOA Regimes.”  My guidelines for living in HOA-land are simple:  accept the HOA regime, conform to its pronouncements, and always honor the HOA board.

Published in: on September 18, 2009 at 10:36 am  Comments (1)  

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  1. The last paragraph statement is disturbing. I sadly am a member of a Property Owners Association (POA). I am a Vietnam Veteran.
    This past Sept. 11 a friend and I were communicating and reminiscing. He stated that 41 years ago he had just graduated from high school and had started a new job at GM. He stated he thought he had it made for life. Good pay and insurance, plus a good retirement until he died. Now he was very concerned with the last. He then asked me what I was doing.
    I responded with “I was in a picturesque countryside in South East Asia, more commonly known as Vietnam. I had been sent there to fight the spread of the dreaded communist doctrine and to help the citizens of that country have the right to vote and chose how they wished to live. Several close friends gave their lives believing this as had ten of thousands before had done. Not to mention the soldiers that was scared and destined for life to live with things they so and did. For the most part I thought we had done the right thing, until recently.
    When I retired I purchased lots in a resort camp ground that was a POA. At first this seemed OK. But as I spent more time there I found a large number of people actually lived there. Then the educating of how corrupt this POA was and how they were violating rights began. I disagreed with many things that were being done by this board, but the denying voting rights without following the process set forth in our bylaws really upset me. Several people joined with me to address the board to no avail. Example: Our bylaws detail a step by step process required to suspend a member which would then prevent attending meetings, voting, etc. This process was and never has been followed.
    This year I decided to try and bring issue to a head. Our dues were due on April 1 and invoice states that a $10 late fee, plus a 7% penalty would be imposed after that date. I did not pay my dues until July 3. I did not pay the late fee or the penalty since I did not know if that was per lot, nor how to calculate the 7%. I expected to receive an invoice stating these amounts due. Instead a board member informed me early September that I would not get a ballot to vote. I attended the next board meeting on Sept 12 and questioned the board about this. I asked how much I owed and why had I not been notified of the amount. They replied that they use Peach Tree Accounting program and had not calculated it yet, so they did not know. This was 2 ½ months after I had paid the dues. I was informed since they considered me not in Good Standing I would not be allowed to vote. I latter was informed by a sitting board member that at lest 50% of members were denied voting rights this election. No member has ever been before the board for a hearing, which is required to suspend a member.
    I have contacted two attorney firms concerning this and both have stated, just pay your dues from now on. The fact that the board is using this and other schemes to deny voting rights did not concern them. They were not interested in this case.
    I do not know where to turn.
    I guess previous Americans that gave their lives to protect Americans rights to vote were a travesty and waste of life. If this practice continues it will only be a short time before local, state and federal governments also take the vote away.

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