UCIOBORA: an attempt at justice for HOA members

According to CAI, 9 states have adopted UCIOA (Uniform Common Interest Ownership Act), 14 the UCA (Uniform Condominium Act, and 1 state, Pennsylvania,  the UPCA (planned community act)?[i]  Why is it that only 1 state, Kansas,[ii] has adopted the Uniform Common Interest Ownership Bill of Rights Act (UCIOBORA) in 2008?[iii]

The Bill of Rights Act was released as a separate act independent of the basic and initial UCIOA, and from the above state adoptions we can see why.  Apparently, except for Kansas, none of the states care for a Bill of Rights for HOAs!

Why then did the BORA come to pass with only one “buyer”? Allow me to provide some background as to why BORA came about.  In the years preceding its 2008 appearance, there was an outcry for a homeowners’ bill of rights with yours truly, among others, playing an important role in demanding homeowner rights.  Among the demands were Texas attorney David Kahne who co-wrote the AARP Member Bill of Rights in  2006[iv]; and yours truly who argued for homeowner rights to CLRC that was conducting a rewrite of California’s CID act, the Davis-Stirling act (2005 – 2008).[v]

CAI is an avid supporter of UCIOA even to this day, probably because it’s based on the HOA legal scheme and structure introduced in the 1964 Homes Association Handbook.[vi]

Let’s see what pro-HOA state legislators and the national lobbying entity may have felt quite disturbed about its covenants.  (A hint is given when ULU chose to make it free-standing).

UCIOBORA excerpts:

“The Need for a Free-Standing Home Owner Bill of Rights. . . . The reason is that each of these complex Acts has its detractors who have historically blocked adoption of these Acts in any state. . . . [And] of the difficulty drafters in the States may encounter in integrating any new adoption of the existing Uniform Acts with the laws that may already exist in a particular state.  For these reasons, ULC promulgated a free-standing and relatively short Uniform Act that addresses all of the ‘association versus unit owner’ [hints at similarity of ‘management vs employees’] issues touched on during the drafting of the 2008 UCIOA amendments.[vii]

(5) shall establish a reasonable method for unit owners to communicate among themselves and with the executive board concerning the association;

(6) may suspend any right or privilege of a unit owner that fails to pay an assessment, but may not: (B) suspend a unit owner’s right to vote (Section 8(a), powers of HOA). (a) In the performance of their duties, officers and members of the executive board appointed by the declarant shall exercise the degree of care and loyalty to the association required of a trustee (Section 9, Executive Board).

(b)(5) determine the qualifications, powers, duties, or terms of office of executive board members (Section 9).

(a)(4) specify the powers the executive board or officers may delegate to other persons or to a managing agent (Section 10, Bylaws);

(Section 11, Owners meeting). (c) The notice for any meeting must state the time, date, and place of the meeting and the items on the agenda, including: (1) a statement of the general nature of any proposed amendment to the declaration or bylaws;

(f) The declaration or bylaws may allow for meetings of unit owners to be conducted by telephonic, video, or other conferencing process, if the alternative process is consistent with Section 12(g).

(g) Except as otherwise provided in the bylaws, meetings of the association must be conducted in accordance with the most recent edition of Roberts’ Rules of Order Newly Revised.

(Section 12, Executive Board meetings). (g) Unless the declaration or bylaws otherwise provide, the executive board may meet by telephonic, video, or other conferencing process if: (1)   the meeting notice states the conferencing process to be used and provides information explaining how unit owners may participate in the conference directly or by meeting at a central location or conference connection; and (2)   the process provides all unit owners the opportunity to hear or perceive the discussion and to comment as provided in subsection (d).

(Section 14, Voting). (d) Unless prohibited or limited by the declaration or bylaws, an association may conduct a vote without a meeting. In that event, the following requirements apply: (3) The ballot must set forth each proposed action and provide an opportunity to vote for or against the action.”

OK, where are we?  The sampling above is not in the same spirit and intent as our constitutional and properly named, Bill of Rights.

“THE Conventions of a number of the States having at the time of their 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.”

On the other hand, UICOBORA addresses the governing documents as if they were the HOA’s constitution in its attempt to bring more fairness and justice to homeowner issues and complaints. The Uniform Law Commission (ULC) had good intents.   However, the two BOR are like apples and oranges. UCIOBORA should be more aptly named Homeowners Rights and Responsibilities. Instead appears to look as if it were supporting a genuine BOR for HOA homeowners based on our Constitution.

Furthermore, don’t get confused with CAI’s Rights and Responsibilities for Better Communities,[viii] which consists of “ought to” advice and prescriptions for  better communities, with nothing that you can go to court on.  Excerpts:

“Homeowners have the right to: Honest, fair and respectful treatment by community leaders and managers, Receive all documents that address rules and regulations governing the community association,

“Homeowners have the responsibility to: Read and comply with the governing documents of the community, Treat association leaders honestly and with respect, Vote in community elections and on other issues, Pay association assessments and charges on time.

“Community leaders have the right to: Respectful and honest treatment from residents., Receive support and constructive input from owners and non-owner residents;

“Community leaders have the responsibility to: Conduct open, fair and well-publicized elections, Conduct open, fair and well-publicized elections, Encourage events that foster neighborliness and a sense of community.”

 

The good intentions of the Uniform Law Commission were found unacceptable by all the states except Kansas. Nationally, we have UCIOA, the Uniform Common Interest Act replacement to America’s Constitution with a deceptive bill of rights for homeowners as contained in UCIOBORA.  Yet, HOA-LAND[ix] continues to grow and represents a secession from the Union without a shot being fired. These subdivisions and condos portrayed as “communities” function outside the US Constitution and have substituted their governing documents as the community’s supreme law of the land.

by: George K. Staropoli

 

References

[i]CAI State Advocacy, Uniform Acts.

[ii]Kansas Legislative Research Department”, Common Interest Statutes, March 2018).

[iii]  UCIOBORA.

[iv] AARP HOA Bill of Rights, David Kahne.

[v] See California CLRC proposal for state assistance to HOAs, Homeowner Rights are an important issue for California’s CLRC, CLRC proposes changes to HOA laws without a bill of rights. Also involved in the quest for a CA Bill of Rights were Donie Vanitzian (see Staropoli letter to  CLRC) and Elizabeth McMahon (“In 1997, Elizabeth McMahon of AHRC filed a Homeowners Bill of Rights with the California Law Review Commission looking into revising California’s HOA statutes); both are no longer with us.

[vi] See Analysis of The Homes Association Handbook.

[vii] Supra n. iii, Prefatory Note, page 1.

[viii] CAI’s Rights and Responsibilities.

[ix] 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 collectively constitute a nation within the United States.

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