Fed court rejected HOAs as a community or a social welfare nonprofit

Flat Top Lake HOA v. US (868 F.2d 108)  was a 1989 federal circuit court case on whether or not the WV HOA qualified as a social welfare nonprofit entitled to receive federal tax breaks. The IRS permits tax exempt status for HOAs as a social welfare entity under its 501(c)4 classification if certain requirements are met. In general, the HOA must primarily provide community benefits to the greater community rather than to its members only.

So much for history. Today, Sun City Grand (Surprise, AZ), a $20 +/- million operation with over 9,000 homes, has been functioning as a social welfare entity since 2015. As best determined, it claims that just being there is sufficient to be granted a tax exemption as a social welfare nonprofit and receive tax benefits.

But, a puzzlement! Why is the board seeking member approval of programs to be made available to the general public after 3 years have gone by?  Furthermore, the governing documents do not grant the board any such powers to change the nature of the subdivision without an amendment to the CC&RS. What is going on?

The Flat Top Court held that,

The homeowner’s association must serve a community [subdivision] which bears a reasonably, recognizable relationship to an area ordinarily identified as a governmental subdivision or unit. Congress recognized that a true “community” functions within a broader national fabric.

When a group of citizens elects . . .  to separate themselves from society and to establish an entity that solely advances their own private interests, no potential for general social advancement [benefit] is implicated.  Wholly private activity, however meritorious, confers no such benefit which would render a compensatory exemption [ tax break] appropriate.

So, from the dawn of HOA history it has been vehemently argued that HOAs are private entities and therefore hands off, we now have an about face just to claim tax benefits.   In other words, the HOA by its very nature withdrew from the greater society and cannot claim a tax benefit from it.

In dissenting from the majority holding, a judge maintained that “The Association performs [community benefits], as the majority recognized, ‘tasks of quasi-governmental nature’ for the Association members and others. . . and performs activities which the taxpayers otherwise would have to pay for.”   The judge did not address the question of double taxation as a result of reduced municipality services – paying HOA assessments and also paying taxes for services no longer provided by the municipality.

 

 

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Published in: on June 20, 2018 at 8:49 pm  Leave a Comment  

Political free speech both without and within the HOA

I recently came across a post by a Massachusetts law firm , MEEB, that basically summarized my arguments and positions on unconstitutional HOA governments.  In particular, alleged waivers of constitutional rights and the prohibition against private contractual government  HOAs from restricting political public speech.  That applies to both in the public domain and within the HOA community domain.

In its 2012 post, “Court Decisions May Make it Harder to Restrict Free Speech Rights,” decisions in 3 court cases (VT and MA) are reviewed. In essence, these decisions challenge “an assumption long held and widely recognized by courts in many jurisdictions that the freedom of speech guaranteed in the U.S. Constitutions does not apply in condominium communities.”  The reason offered, as I’ve mentioned many times, “citizens, a community association is not a governmental entity, so its rules are not subject to the same strict constitutional tests.

In contrast to Twin Rivers,  in Mazdabrook “the court noted [political speech] ‘lies at the core’ of our constitutional free speech protectionsPolitical signs advancing a resident’s candidacy are not by their nature incompatible with a private development. They do not conflict with the purpose of the development.”  And the court concluded “that the sign policy in question violates the free speech clause of the State Constitution.”

 In regard to the alleged waiver of fundamental rights (my emphasis),

The New Jersey court expressed serious concerns about whether and how condominium owners can  voluntarily waive their constitutional rights. Such waivers, the court said, “must be knowing, intelligent, and voluntary…. [and] at the very least, [they] must be clear.  Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”

 Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”

In the Preu (MA) decision, the court addressed state actions by the HOA,

The court found that a law suit filed to enforce a community association’s rights under the state condominium statute constituted a “state action” that could subject association regulations to a constitutional test.

 The constitutional test would require strict scrutiny, which requires a necessary and compelling reason to restrict fundamental rights. Lesser loss of rights, say under state laws, would be subject to a lessor test, but more than the broader “a government’s general interest” that can easily be extended beyond justifiable logic.

In addition to the above rulings, California’s SB 1265 that states the HOA is a quasi-government faces a test in the legislature tomorrow. Let’s hope it passes.  The sponsor, Senator Wieckowski,  also managed to have SB 407 passed last year that broader prohibits restrictions on free speech regarding meeting rooms, assemblies, use of common areas, etc.

“It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.” (New Civ. Code 4515(a).

Now members can even make use of the ‘house organ,’ the monthly online or hardcopy communication provided to the membership for equal access to the membership for campaigning or publicizing opposing views.

Published in: on June 19, 2018 at 3:15 pm  Comments (2)  

CAI’s “Home Sweet HOA” – how warm, how homey. How delusional!!

I’m tired of these CAI “satisfaction surveys,” the latest of which carries the title, “Home Sweet HOA.”  Is CAI having acceptance problems and has to resort to the above loaded slogan?  Thanks to the increasing, more down-to-earth critical internet articles and social media posts by homeowner rights advocates like myself, it sure seems so!

Don’t be fooled by a survey conducted by a leading pollster like Zogby as to the validity of the survey.  There is a lot that goes into an honest and valid survey that CAI does not provide the necessary details. In research surveys, like these surveys sponsored by CAI’s Research Foundation, questions need to be answered like, who are the respondents and what do they know about HOAs?  If their knowledge is limited and restricted as to the basic facts about HOA “communities,” then the validity of their responses must be questioned. Their responses are biased!

To use a legal term, there is probable cause to conduct a balanced survey into HOA satisfaction.

Two homeowner rights advocates, Sara Benson (Chicago) and Jill Schweitzer (Phoenix), were responsible for 2 online polls on homeowner satisfaction with HOAs.  In stark contrast, not surprisingly, the Combined Advocate Surveys, as I refer to them, revealed opinions and views refuting the results of the CAI “happiness” surveys.

In statistical terms, the George Analytics table below shows that the CAI and Combined [advocate survey] responses (average percentages) come from 2 distinct samples, segments, of the HOA population.

(See 2016 Combined Advocate Surveys vs. CAI surveys ).

The Combined Advocate Surveys demonstrate that the CAI surveys are not representative of all HOA members. They are not valid for the entire population of HOA owners, but just for that selected grouping of uninformed respondents.

I  CHALLENGE  CAI  TO  CONDUCT  A  SURVEY  BASED  ON  MY  2011  “Truth in HOAs Model Act. Sections 1 and 2 of the proposed act pertain to mandatory inclusions in all CC&Rs, and simply states, in part,

No provision of any contract or any declaration of covenants, conditions, and restrictions affecting lawful property uses of residences in a subdivision or condominium is enforceable in this state unless the party [HOA] seeking to enforce the provision proves by clear and convincing evidence  that 1) the provision being enforced was knowingly and voluntarily agreed to . . . .

Section 3 spells out a required buyer agreement form to be signed by the potential HOA member, which explicitly alerts the buyer to hidden facts about life in HOA-LAND. Subsection 3(d) states, in part,

I understand that the association, as a private entity and not an arm of the state, is not subject to the restrictions and prohibitions of the 14th Amendment to the US Constitution that otherwise protects the rights of the people . . . .

And finally, section 4 is an explicit surrender and waiver  by the HOA that the HOA

herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.

Let’s get to the bottom of these happiness allegations.  Let’s have the members speak for themselves.  If all is well and good as CAI has maintained over the years, there should be no problems signing the agreement or adopting the model disclosure act.

Published in: on June 5, 2018 at 8:19 am  Comments (4)  

The power of Civ Proc Rule R11 and the right to pardon

A very serious, very real R11 application can be found in the controversy surrounding Trump’s claim that he can pardon anybody, even himself. The Constitution gives the President this power,

The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. (US Const., Article II, Section 2, Clause 2).

Now this is a very broad grant of power, but is restricted to crimes against the US and not civil cases. However, it is silent as to who can be pardoned, and whether or not it applies to the President. A strict examination, “parsing”, says the President can do whatever he wants to do.

What has Rule 11 have to do with this claim? It could be argued that,

1. It is frivolous;
2. Unsupported by evidence;
3. Presented for an improper purpose;
4. Not warranted by a nonfrivolous extension of the law, or to make new law.

These counter-arguments, based on the overall purpose and intent of the Constitution and its creation of 3 equal branches of government, provides a strong rejection of the unrestricted claims of Presidential pardon power. As I’ve read many times in court opinions, the court rejected frivolous claims as they “would make a mockery of the law.”

Or, as another put it, “would turn the Constitution on its head.”

Read more about court Rules of Civil Procedure, Rule 11  as applied to HOA litigation.

Published in: on June 4, 2018 at 7:07 am  Leave a Comment  

HOA members fail to invoke their strongest weapon — Rule 11, representations to the court

 

All states have court Rules of Civil Procedure similar to Rule 11 that govern trial court litigation regarding attorney representations to the court. It’s an ‘affidavit’ as to the validity of their claim, and sanctions for violations of the rule.

Presented below is Arizona’s Rule 11 with my annotations regarding keywords found in all cases, except with Florida where there is just vagueness. The attorney must affirm, under sanctions by the court, that these conditions have been met when he signs the court papers. Violations occur presumably because there was no need to verify the HOA’s claims, since the directors are upright, honest people.

I’ve read a great many cases across the country where violations of Rule 11 have gone ignored by the homeowner, probably due to “professional courtesy” by the homeowner’s lawyer. (Probably not wanting to isolate himself from his fellow lawyers least they retaliate).

I’ve found that many violations seem to center around what the losing homeowner shouts is a bunch of lies, but his lawyer never challenges the HOA attorney’s assertions to “put your money where your mouth is” and show me the evidence. Another major violation that I’ve come across is the filing of frivolous claims that on the face of them lack any support, all centering around the attorney’s favorite pastime of parsing the wording of a statute by adopting overly broad extensions of their everyday meanings.

What comes to mind is the infamous attempt at O. J. Simpsons murder trial defense when his attorney asserted, because the evidence was circumstantial- nobody saw the murders – that some stranger came walking by and decided to kill two people talking in the front yard. C’mon!

In particular, I witnessed a CAI member attorney filing an affidavit by the HOA manager “as a true and accurate statement” for moneys owed the HOA. Handwritten on the affidavit was a claim for additional money. The judge threw claim out in disgust.

Are the CAI attorneys worried? I think so. Revisions to the Rule were made in 2016 and modified in 2017 to invoke subsection (c) – consulting with the attorney, so as to avoid a possible State Bar or court action complaint for the violation.

It’s up to you, the homeowner, to fight for your rights and justice, remembering that your attorney works for you, not the other way around. Speak up or face another loss in court!

Ariz. R. Civ. Proc. R11:

(b) Representations to the Court. By signing a pleading, motion, or other document, the attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) Generally. If a pleading, motion, or other document is signed in violation of this rule, or if a party fails to participate in good faith in the consultation required under Rule 11(c)(2), the court–on motion or on its own–may impose on the person who signed it, a represented party, or both, an appropriate sanction. The sanction may include an order to pay to the other party or parties the amount of the reasonable expenses incurred, including a reasonable attorney’s fee, because of the filing of the document or because of the party’s failure to participate in the required Rule 11(c)(2) consultation. In considering an appropriate sanction, the court must take into account the opportunities provided to the person or party violating Rule 11 to withdraw or correct the alleged violation under Rule 11(c)(2).

(2) Consultation. Before filing a motion for sanctions under this rule, the moving party must:
(A) attempt to resolve the matter by good faith consultation as provided in Rule 7.1(h); and
(B) if the matter is not satisfactorily resolved by consultation, serve the opposing party with written notice of the specific conduct that allegedly violates Rule 11(b). If the opposing party does not withdraw or appropriately correct the alleged violation(s) within 10 days after the written notice is served, the moving party may file a motion under Rule 11(c)(3).

Published in: on June 3, 2018 at 10:02 am  Comments (2)