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)),
- “The law requires that boards take prompt steps to investigate and end harassment.
- This intrusion by the federal government into the affairs of homeowners associations is unprecedented.
- The burden the new regulations create will likely outweigh any intended benefits regulators had in mind.
- Associations are not cities with paid city council members, police forces, and governmental immunities.
- 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.