Is CAI a coercive HOA monopoly?

Community Associations Institute (CAI) dominates themarket for HOA educational services and controls the market around it by means of its extensive lobbying of state legislatures and by holding seminars, conferences and publications extolling its self-serving agenda that promotes the HOA legal structure and scheme; by the support  of state agencies that sponsor CAI seminars and classes, and by private entities trained under the CAI education program – ECHO in California and CALL in Florida, as examples. It has become successful in lessening competition as a result of its “improper conduct.”

A quick review of the internet postings shows (emphasis added),

“[The]  courts ask if that leading position was gained or maintained through improper conduct—that is, something other than merely having a better product, superior management or historic accident. In the end, courts will decide whether the monopolist’s success is due to ‘the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.’”

“Coercive monopoly” is defined as:

A monopoly that is created using extraordinary power such as a government or international agency. For example, a government that grants legal protections to firms that create barriers to entry to prevent competition. Firms commonly lobby governments for rules that protect them from competition.”

With respect to CAI, a tax-exempt nonprofit, can it be charged as a monopoly? It is a well-established fact that no state has granted  CAI a protective government monopoly exclusion —  the right to lessen competition. And that includes local governments in several states that openly support and encourage the CAI HOA program; some states have actually employed CAI as its authority to educate the public regarding HOAs.

The  answer is YES according to the following Supreme Court case. The case addresses the instance where  the state assigns a “governmental monopoly” (making it a state-actor) to an entity (which HOAs are not), but must explicitly state that the entity has the right to lessen competition,

“Under this Court’s state-action immunity doctrine, when a local governmental entity acts pursuant to a clearly articulated and affirmatively expressed state policy to displace competition, it is exempt from scrutiny under the federal antitrust laws. In this case, we must decide whether a Georgia law that creates special-purpose public entities called hospital authorities and gives those entities general corporate powers, including the power to acquire hospitals, clearly articulates and affirmatively expresses a state policy to permit acquisitions that substantially lessen competition. Because Georgia’s grant of general corporate powers to hospital authorities does not include permission to use those powers anticompetitively, we hold that the clear-articulation test is not satisfied, and state-action immunity does not apply.”

 (F.T.C. v. Phoebe Putney Health System (133 S.Ct. 1003 (2013)).

CALL TO ACTION

I believe the case can be made for a CAI monopoly and for the Feds to  investigate (Citizens Complaint Center, Antitrust Division, DOJ),  and to file an appropriate antitrust lawsuit ASAP.

HOAs: the modern instance of the medieval feudal system

A little bit of history is good for the soul; it puts a perspective on why things are the way they are.  Let’s go back before modern times and the creation of the modern HOAs as outlined in the 1964 The Homes Association Handbook.

Who controls and owns the land? Well, it was he who conquered it and took it from some other governing person or body. In 1077 William the Conqueror from Normandy took control of England from the Saxons, who earlier took it from the Anglos (Anglo-Saxons).

The social/economic system was known as feudalism in which serfs or peasants called vassals, were given  some land called fiefs by the owner, known as the Lord (of the manor). The vassal was to work the land and paid for the grant from the Lord in terms of produce,  services, and money. (It also included serving in the army to defend his Lordship).

In short, William as the “high” Lord gave land to his Nobles who became his vassals. The vassals, in time, “sublet” their lands and created another level of Lord-Vassal relationships, each subservient to the original grant, and so on.

The consequence of the feudal system was the creation of very localised groups of communities which owed loyalty to a specific local lord who exercised absolute authority in his domain. As fiefs were often hereditary, a permanent class divide was established between those who had land and those who rented it.” (Feudalism – World History Encyclopedia).

By this time the parallels can be easily identified.  Follow along with the modernization of feudalism that required changes and additions to real estate property laws and the doctrine of CC&Rs was invoked. As a necessity, the doctrine known as ”equitable servitudes” and was made part of the CC&Rs. Laid out in the Handbook, equitable servitudes replaced the grant from the Lord to his Vassal in such a way as to bind all future owners.   In other words, the CC&Rs enabled perpetual control over the land or subdivision of today. Homebuyers are forced to be bound to this original CC&Rs, as validly amended.

Now to the legality that the owners never signed the CC&Rs created by the developer at the time of initial purchase.  However, the servitudes were hampered by the doctrine of “running with the land” found in your CC&Rs, which proclaimed that the CC&Rs, in order to be binding on subsequent owners, had to be in place at first sale—to the developer. Consequently, from the get-go, homeowners bought into an adhesion contract that did not permit a give and take bargaining  between seller and the new buyer —  you  — as required under contract law 101. I call it a huge GOTCHA!

So, here we are!

new Restructure HOAs Plan website

ALERT!!

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PLEASE click on JOIN and get the latest info that will help understand why the HOA legal scheme must be and can be reformed. See FAQ for answers as to the effects of the Plan.

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THE  ALLEGORY  OF  THE  WIZARDS OF HOA-LAND

“Pay no attention to that man behind the curtain!”

The quote comes the classic film The Wizard of Oz. The Wizard of Oz tells the story of Dorothy (and her dog Toto) who is magically transported to the Land of Oz. Now, stuck in the Land of Oz she  is advised to see the Wizard of Oz as he may know of a way to send her home.  Speaking to the Wizard, who looks like a giant floating head, the floating head is exposed as just an illusion created by a middle-aged man hiding behind the curtain, who is the “real” Wizard. He attempts to distract them by asking them to ignore the man, saying “Pay no attention to that man behind the curtain.”  (View https://youtu.be/YWyCCJ6B2WE).

The ”Wizards of HOA-Land” are none other than the HOA boards of directors (BOD) who provide illusions of happiness, approval, and support by the majority of their members.  The BODs use propaganda statements — disinformation consisting of false, misleading, and half-truths —  videos, photos, testimonials, and coercion applied to non-believers in their message.

Speaking specifically in regard to my “Mgmt Case Study #1” subject, Arizona’s SCG, as a result of the BOD’s arrogance, its defensive posture using propaganda to create illusions of proper and righteous conduct, its silence on the crucial issues, and its continued violations of black-letter statutes and the governing documents, I’ve managed to pull away the “curtain” and expose the Wizards in action. The BOD’s response has been, in effect: Pay no attention to these criticisms and just believe in how we’ve made you all content with  SCG

The SCG BOD election  mockery

(In general, the legislators, the media, the HOA BODs and members need to step back and see the ugly forest through the trees — the claimed “isolated” incidents.)

And so the BOD, with some 30% of the votes already cast, continues to urge the members to vote.  Why?  Under SCG’s election procedure the winners are from the top 4 vote counts, and with more than 10% voting to avoid any quorum issues, why bother?  Would it really make a difference among 7 shades of gray candidates who, as I’ve pointed out elsewhere, have been carefully selected and controlled by the BOD with the result, no matter who won, of more of the same policies, attitudes, decisions, culture as before.  The independent voices of  the members have been denied.

A Committee for the Betterment of Sun City Grand  (CBSCG) is becoming a necessity for any hope of restoring member fundamental rights and freedoms.  The members must act!

What makes for an effective nonprofit  HOA board of directors?

(For the record, I am not a lawyer nor work for a lawyer and I am not providing legal advice or opinion.)

First and foremost, an HOA is  a chartered nonprofit corporation given authority to function as such under the AZ Constitution.   The association’s Governing Documents, an agreement between the HOA and the members, gives the HOA the authority and powers to function as the governing body of the subdivision.

As you are well aware, both nonprofit corporation law and the Governing Documents place the ultimate authority and responsibility for managing the HOA – in the true meaning of “managing” and not CAM — in the board of directors (BOD).  CAM keeps the HOA functioning smoothly delivering the services and providing for “groundskeeping.”  In order for the HOA to accomplish its mission and goals, which provide the necessary guidance and direction for performance, it is the BOD that must decide 2 important questions: What is our purpose?  What should it be?

What then makes for an effective BOD? To start at the beginning and get right to the point, my emphasis at this important juncture (Managing the Nonprofit Organization, Peter F. Drucker, p. 171-172, 1990),

“The board needs to know that it owns the organization. But it owns an organization not for its own sake — as a board — but for the sake of the mission which that  organization is to perform.”

“If you find that the board has become inflexible, you have to look for ways of renewing the board with fresh appointments. The more power is concentrated in a few people on a board, the more likely the situation will turn unhealthy.”

And this is where the BOD has failed the members!

As pointed out in earlier posts, “mgmt case study #1”, SCG’s continues to widely publish its nonsensical vision and mission statements providing no guidelines to act or of any value to measure effective performance. What we have witnessed is a BOD deciding on its own where to go and what to do, cleverly masked as fulfilling the wishes and desires of the members.  In actuality, all those meet the board, chats, Q &As, etc. allow for a presentation of grievances without binding the BOD to action.

There is no provision to require the BOD to hold a vote on a member’s proposed amendment to the governing documents as permitted by state law with respect to removing a director or all directors.  Or to nullify an act of the BOD.

Drucker continues with, “Ducking controversy or minimizing difficulty, snowing people with reports that are not realistic either about the quality of the programs . . . or whatever . . . that’s terrible leadership”

It’s well beyond time for a necessary change in attitude and culture before SCG descends into chaos. Adoption of a new approach, as recommended in A Plan toward Restructuring the HOA Model of Governance is needed, today!