Obstacles to effective HOA reform legislation

Jim Lane, a NC HOA reform activist and website owner of Alliance of Homeowners Associations and Owners, asked the following HOA reform questions on the LinkedIn HOA group:

What are the three biggest “issues” (be specific)? What is standing in the way of resolving them? What should Owners be doing? How?

A good understanding of the issues surrounding HOA reform legislation requires expanded answers to these questions.  There are too many dogmatic mantras being espoused that are not supported by any convincing evidence, like “move out, “no contract interference,” “you agreed to be bound,” etc.  I can only provide an outline of my answers to these questions.  A deeper understanding can come from a study and analysis of my Commentaries over the years since 2004. (A keyword search is available).

First question: Essentially, I have identified 5 fundamental areas that require substantive reform legislation; legislation, if enacted would produce a trickle-down effect on many of the more serious issues confronting homeowner rights, freedoms, privileges and immunities allegedly waived or surrendered by homeowners.

They are:

  1. HOA foreclosure (cruel and unusual punishment; suspect category)
  2. Lack of due process protections (eliminate HOA banana republic justice)
  3. No clean elections laws for HOAs (eliminate HOA banana republic elections)
  4. No penalties against HOA board violations (equal application of the laws; detriment serving as a check and balance on HOA board violations)
  5. Wrongful application of a valid consent to agree (misapplication of the domination of servitudes law over constitutional and contract laws to make the HOA legal scheme work)

A failure to attain these broad, fundamental reforms will leave homeowner advocates at the continued mercy and whims of their legislatures, who are all pro-HOA.

Second question:  The answer to this question will disturb many, many homeowners and HOA reform advocates.  First, the 40 year-old national lobbying organization, Community Associations Institute (CAI) has dominated state legislatures. CAI has advocated its personal agenda under the guise of making for a better America, and a fear mongering not to support reform advocates who will kill your HOA and cause a loss in your property values.[1]  And then there was the inappropriate mass merchandising of the defective HOA concept to generate profits for the HOA promoters.

Second, like the German people who allowed the Nazi party to gain control over the most cultural and scientific country at that time,[2] homeowners jumped at the carrots being offered by the mass merchandisers and ignored the stick of a decline in democratic institutions and constitutional protections.  Many believed that they were good people supporting what was good for the community and the state, just like the German people eagerly believed.

The denial of the reality of the HOA legal scheme is a common behavior when a person’s self- image is being destroyed or radically altered.  When one’s self-image serves as the basis of how that person sees himself to be, many owners accepting the reality of the HOA concept would be destroyed. Their reactions would be an outright denial to the point of irrationality.  To say that their cherished HOA is a wrongful legal concept that is not for the betterment of society is too say that they are wrongful people not working for the betterment of society.  And they will not accept that. They will not accept the fact that they, like the emperor in The Emperor’s New Clothes,[3] were conned so they will continue to ignore reality and live in denial.

We see this reaction when pro-HOA supporters are pushed to defend their positions and they cannot, so they react with, essentially, an I don’t care attitude.

Third and Fourth questions:  The homeowners must, themselves, face this reality and become enlightened.  They must unite and stop the continued influence of CAI on their legislature.[4]  The homeowners must become proactive to enlighten and change public opinion that HOAs are not the next best thing to Mom’s apple pie.

 

References

 


[1] There are existing laws in every state that would enable HOA to maintain their unique relevance to the subdivision in terms of private rules and amenities, etc., but would return HOA to our American system of government.  However, that would mean CAI would lose much of its dominance and influence over HOAs. See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.

[3] The Emperor’s New Clothes, Mindfully.org (http://www.mindfully.org/Reform/Emperors-New-Clothes.htm), June 7, 2012.

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Published in: on October 15, 2013 at 10:43 am  Comments (2)  
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2 CommentsLeave a comment

  1. […] (click here for 5 proposed changes in law) […]

  2. I especially like #4 so much that I would place it higher. In my situation, rogue board members were free to break their fiduciary and statutory obligations without fear of any personal liability – protected by the umbrella of litigation insurance. Compounding their insolence was a predatory law firm that win or lose would be paid to defend the board – with homeowner dues no less. The result, when a homeowner breaks the CC&R’s, the homeowner is screwed, when board members break the CC&Rs the homeowner is screwed.


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