We don’t want no stinkin’ government protection for HOA members

This California Adams-Davis-Stirling newsletter (“California’s Leader in Community Associations Law”) says it all.  Speaking to a new federal law as of October 2016 (that applies to all states), Code of Fed. Reg. §100.7(a)(1)(iii)),

  1. “The law requires that boards take prompt steps to investigate and end harassment.
  2. This intrusion by the federal government into the affairs of homeowners associations is unprecedented.
  3. The burden the new regulations create will likely outweigh any intended benefits regulators had in mind.
  4. Associations are not cities with paid city council members, police forces, and governmental immunities.
  5. Making boards an arm of the federal government is going to make it harder to recruit and keep volunteers on boards.”

 

Items (1) and (5) make the HOA a state actor due to the mandatory “order” to investigate harassment complaints relating to Fair Housing laws. Item 5 deals with one of the fundamental flaws of the HOA legal scheme — unpaid and untrained volunteers with no local government experience to run HOAs.  What would you expect?  You get what you paid for.  That’s a gold mine for HOA attorneys, who have created these pro-HOA state laws and adhesion contract CC&Rs.

Item (4), while HOA boards have no government immunities they hide behind the business judgment rule that says let the board decide, not the courts, in effect giving immunities.

The author, Adrian Adams, recommends that “Boards should work with legal counsel to adopt anti-harassment rules for their associations.”  “Should” is not “shall” and not mandatory.  It is an “ought to” that requires no compliance and carries no enforcement actions.

The HOA attorneys do not want government interference since it really would interfere with their domination of HOA boards: Seek advice from the people who know best, your HOA attorney.  It is a self-serving recommendation to generate more income for the attorneys, who have repeatedly failed to serve the beneficial interests of the HOA membership.

“We don’t want no stinkin’ government protection for HOA members”!  If not, who then?  You can’t have your cake and eat it!

Since the state legislators have failed to act, it becomes necessary for the Feds to protect the people. See The FEDS must restore law and order in secessionist HOA governments and Getting the Feds involved in HOA reforms.

Advertisements
Published in: on April 18, 2017 at 9:38 am  Comments (19)  

The URI to TrackBack this entry is: https://pvtgov.wordpress.com/2017/04/18/we-dont-want-no-stinkin-government-protection-for-hoa-members/trackback/

RSS feed for comments on this post.

19 CommentsLeave a comment

  1. After submitting photos of a woman who was walking four dogs and who runs a dog sitting business out of her rented home to the board, I received a threatening call from a board member. I was told that I could not tell anyone that they were in violation of our HOA CC&R’s. My comment was that he had no right to take away my First Amendment rights and that I could speak to anyone I wanted. I have submitted an email to the property manager and asked that she send to the President. I have requested that the President ask this board member to resign. This board member is the typical type who relishes his position as a powerful board member who can bully and abuses his power.

  2. Shelly, you are right. Contacting the police, unless you have solid evidence of harassment, assault, or theft, is often an exercise in futility. The police do nothing more than make a brief report of your complaint, but rarely do anything about it. Without concrete evidence or a witness, it is one person’s word vs. another, and the police will tend to side with the board member as the authority figure.

    Also, in general, It is exceedingly difficult to get any state regulatory agency to help the homeowner. Examples: Housing Authority, Dept. of Environmental Protection, Fair Housing organizations. The agency reps only want to talk to the board to get their side of the story, but what if the board is the obstructor or the instigator?

  3. All HOA members should read the US Supreme Courts 9 to 0 ruling of 2015. DOT v. AMTRAK in which high court made manifest that all private entities are unconstitutional because they wrongfully act as both lawmaker and enforcer of private self serving laws ‘CC&R’ which denies homeowners of their cherished civil liberties.

    All that is needed to exercise individual rights is to submit a judicial notice to the HOA informing them that you have the right to withdraw from an illegal arbitrary private entity that denies your inalienable rights.

    Sent from my iPhone

    • The DOT court (135 S.Ct. 1225 (2015) held that private parties cannot draft agreements to circumvent the Constitution by declaring that an entity, specifically a corporation, is a private organization.

      Read “Supreme Court says corporations cannot be used to evade the Constitution” at June 2015 here on my Commentaries.

      “The Court rejected this contention, holding ‘it is not for Congress to make the final determination of Amtrak’s status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions.’ To hold otherwise would allow the Government ‘to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form.’

  4. It seems that the authors of this new Federal law were not familiar with how HOA boards function. The problem with # 1 is that it is usually the Board or a member of the Board who is doing the harassing! A board is not capable or inclined to investigate itself. If a member of an HOA is being harassed by another HOA member than they can call the police.

    • I agree. It is the HOA Boards that harass and think they can get away with it until a homeowner stands up to them (then they will claim or create more false accusations) or sues them or obtains an injunction to stop the harassment. Homeowners should be made aware that if any HOA Board member harasses them or sends them a threatening letter, they call the police and do a report with specific names of the Board members, let the police know they are getting harassed, file for an injunction. If the owners lets the police know the names of the people on the Board and if they keep harassing the owner, at the very least the Board members names will be on the police reports. Homeowners have to be proactive and once the bully Board members know that they are being reported they will either stop or be very careful. The last thing these types want is public exposure. The type of HOA Board members that harass the owners normally have a historical background that they have acted maliciously in the past or their personal backgrounds. Google your Board members and look them up in the public case history in your county. Unfortunately, there are a lot of evil malicious people on some HOA Boards that seem to get pleasure from harassing others. Normally these type of people are either emotionally sick or insecure and think that they will seem better or more important by targeting people. Remember that Board bullies are often cowards that hide their actions behind the Board of Directors title. They do not dare sign their name to a letter and place themselves out there to be held personally liable so they use the Board as their cover for their actions. Also, remember that the bad Board members will never change, they will become more bitter as people complain about them and ignore them. The best way to handle such types is refuse to have anything to do with them and place everything in writing. Do not engage with them or get into an argument. They would love for you to react. Keep calm and carry on. Be better than they are and do not lower yourself to their level. If they do not seem to be reasonable or nice it is because they are not and will never be. Sooner or later they will move on to their next victim but it you are being targeted, report it to the police, place everything in writing, send the letters documenting the Boards actions via certified USA mail and make sure you send it to the Board, the property manager and the property management company. If anything happens then you can hold all parties liable.
      On the other side, if you are being unreasonable, try to reach out and fix the situation.

      • Holly–the problem is larger than this–you cannot call the police on the board because it often backfires on you. the police side with the boards 99 times out of a hundred. The president has standing and you do not. The president will simply tell the police they are doing their job and the member is a troublemaker and the police will then target the member–not the board. I remember a young mother who went out and asked the guy spraying illegal poison on the roadsides to please bypass her house. the sprayer agreed and it was very civil–the board then showed up and called the police on HER for obstruction (mind you the pesticide was illegal in a residential setting). The police came and said she was disruptive–he was going to arrest HER. Fortunately, she recorded her conversation with the sprayer guy (he never complained and said she was very civil–but the president of the board lied and said she got violent!)–the police sided with the president even though he had not been there at the time…no, you can’t call the police on the board, it doesn’t work.

  5. One or more Terravita recipients found fault with Hale and Adams’ “wisdom” for boards of directors noting they simply well-meaning volunteers…

    • I love your comment of “simply well-meanng volunteers”. Typical of the spin the bad Boards like to place out there. That is all it is and they try to build themselves up and maybe even believe their own bluff. “We are just simply your dedicated Board members trying to help …. ” They do not place out honest statements such as “If we do not like you, watch out.” “We are just bored people that have miserable lives and we want to make your life as miserable as ours.” “If we are jealous or resentful of you, we will make your life miserable.” “If we do not like you, we will find a way to fine and harass you and try to make you want to sell and move.” “We will use HOA funds to cover our behinds, our family and friends and do it via what the law allows us to get away with, you just will not know it until it is too late.” “We will use the property manager to do our dirty work and then reward him with a holiday bonus that will come out of HOA funds, not our pockets.” “The management company will do whatever we tell them because they want to keep the account.” “The HOA attorneys get paid to intimidate you but we used them to uphold our rules.” The list is long on the lack of transparency by bad Boards. They just think that the owners either are not paying attention or are so tired of dealing with the difficult Board members that they find it easier to ignore them. They also bet on the fact that most homeowners will not spend money on suing them but once a homeowner does sue them and they lose, their arrogant attitude is cut short. They then know they are one lawsuit away from being told to resign.

  6. HOA’s are the worst thing to ever come to the housing industry. Formed by developers that have one interest, making money and doing so by shifting all responsibility to he poor homeowners. HOA dues are double taxation. Property taxes were originally meant to take care of infrastructure, streets, sewers, etc. The Associations were formed to shift the liability from government to the hoa member that also pays property taxes. The whole thing is a scam. This shift in responsibility is don for the developers to get favorable zoning, so they can make their millions, and the local governments can use their ill gotten gains for other things. How very convenient.

  7. An overarching problem is that HOAs are run by state agencies under Administrative Law and it is almost impossible to get criminal statute violations punished by law enforcement agencies, Even in a rare case when the state real estate division investigation has proven criminal fraud and/or gross abuse of fiduciary duties, or if police can be convinced to conduct an investigation and solid evidence of criminal violations have been clearly established, it is practically impossible to get District Attorneys, City Attorneys and Judges to prosecute and convict the criminal board members. If the violation doesn’t “bleed” or does not involve domestic abuse, almost everyone refuses to prosecute. Maybe 1 criminal case out of 10,000 known/suspected violations in HOAs/Condos gets some justice for the unit owners. This is caused by many things. One is that most DAs and Mayors are elected. When were the last times you or anyone else pressured them during election campaigns to go after criminal misconduct in HOA’s when elected? It never happens because investigations are not done or never get “completed” and few want to risk making unproven allegations during claimed “investigations”! In most cases, the unit owner could be best served to hire a private investigator (instead of an attorney) who is a retired police officer to establish the basic evidence. But, instead of local politicians, usually the pressure is put on legislative members and the focus in on “bad state laws”. Those folks are not accountable for enforcement of criminal statutes so nothing much happens. It is a carefully designed merry-go-round by the trade associations, attorneys and politicians (all with huge financial conflicts of interest) to cause the homeowner to be confused, disoriented and disgusted. The purpose of the system appears to be to intimidate the owner to go away, pay what ever the board demands, and never question anything again. While civil law (in theory) can be used to pursue criminal violations by board members, who can afford to spend up to $100,000 to seek justice that way–especially when all will have to pay with higher assessments if the board loses the case? The best course of action, whenever possible, is to sell out and never buy into another HOA or Condo. Weaving the entire criminal/RICO scheme together is “Administrative Law” under the sole purview/dictatorship of the Executive Branch of government, conflicted industry leaders and their attorneys. Constitutional lawyer experts have shown Administrative Law is not compliant with the Constitution. But, our Congress and States find it much too convenient and financially beneficial to them to make fundamental revisions. Examples of violations of inherent Constitutional protections are (1) prohibitions against the “taking” of property (as in the case of non-judicial foreclosures and non-appeal able fines), (2) flawed due process rights for unit owners against arbitrary board and state division judgements, (3) lack of fair and independently auditable board elections, and (4) unjustified limitations on free speech by unit owners. (Submitted by a former board member of a HOA with over 12,000 occupants, a former appointed member of a state-wide HOA Commission, and political victim of many unsuccessful attempts to fix the statutes identified as causing the major problems within HOAs and Condos.)

  8. Who protects the HOA owners from the malicious harassing HOA Board members? We need are laws that will hold HOA Board members personally liable. This is the only way the cowards that use the HOA Boards as their cover to target homeowners are going to stop harassing. Every HOA Board member who targets a homeowner needs to have the Attorney General investigate. If they are attorneys, they should face serious sanctions and fines when they misuse their position and harass homeowners. The problem are not the homeowners but the egomaniacs who are malicious and get on some of the HOA Boards. They are ruining communities across the USA.

    • The problem is that, as several advocates have discovered, the AG will not act without specific legislative authority to do so, and state legislatures have refused to do so. So, who defends homeowners? Hopefully the Feds, our only recourse under the Constitution.

      • The AG needs to be given the specific legislative authority to hold HOA Board members accountable. There is a serious need for HOA Board sanctions and fines for any HOA Board or Board member that violates the law or the rights of homeowners. If a Board member violates a law, they should be held accountable on a personal level and they should be required to resign. This is the only way the abusive tactics of malicious HOA Board members will stop. The problem is that there is no accountability unless a homeowner chooses to sue the HOA Board and Board members.

  9. The complainers who start trouble should also be held accoutable.

    • Are you saying that people who complain in public life should be held accountable? Or just HOA members exercising their 1st amendment rights? It seems that the volunteers demand respect just because they volunteer regardless of their inexperience or quality of their decisions. That’s part of the defect in the HOA concept – conscripting board members to meet legal requirements. They are not really involved and are ignored while on the board by the clique in their self-righteous attitude, or are part of the clique.

      Why don’t you pay the directors and officers and then you can expect performance? How about that? No you say.

      • I agree. From my experience, it is the insecure Board members who have no power in their personal life who tries to act as if they are important by being on some meaningless HOA Board. It is amusing to see them puff themselves up as if they matter when in reality they are not important. They resent the owners who speak up and aim to hold the Board accountable for their unacceptable behavior, spending of HOA funds and arbitrary rules and fines they apply to others but not to themselves or their clique. Respect is something that has to be earned, it is not a right.

        Thus if some Board members are not respected and are avoided, they should look at themselves, how their behavior is a negative in the community and realize that if there are even a few people in the community that disapprove of them and want no association with them, it is due to their behavior.

        Once each Board member is held individually responsible and liable then HOAs will improve. Every HOA homeowner has the legal right to express their opinion. It is the Board member’s responsibility to respect the homeowner’s opinion even if it differs from their opinion.

        If homeowners are complaining in any community, it is because a problem exists that needs to be corrected in a decent and civilized manner by the Board members who chose to volunteer. If they do not like the reactions from the homeowners, then they should resign. No community needs a Board member that resents the homeowners or wants to shut any owner down that is speaking up. Are they so insecure that they can not handle complaints?

    • The HOA Boards need to act in a respectful, responsible and fair manner toward all HOA community members.

      If someone choses to volunteer to be on a HOA Board then part of their responsibility is to deal with the problems and complaints. If they do not want to resolve issues in a nice civilized manner, the solution is simple: resign!

      There is no excuse for any Board member to act in a resentful malicious manner.

      Homeowners pay monthly assessments and if they are not satisfied with the conditions of their HOA community or the HOA Board members, they have the right to complain.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: