Substantive SC HOA reform bill – end foreclosure

I’ve long argued for an HOA reform bill to address the serious ills of HOA foreclosure that I see as a punitive measure and constituting excessive and cruel punishment and a violation of the 8th Amendment.[1] SC’s H 4741 pre-filled by Rep. Todd Rutherford. Surprisingly, it’s has a long title that is very much on point.

A BILL TO AMEND SECTION 15-41-30, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PROPERTY EXEMPT FROM ATTACHMENT, LEVY, AND SALE, SO AS TO PROVIDE THAT A DEBTOR’S INTEREST IN REAL PROPERTY USED AS A PRIMARY RESIDENCE MAY NOT BE SOLD IF THE ACTION WAS INSTITUTED BY A HOMEOWNERS ASSOCIATION ATTEMPTING TO COLLECT UNPAID DUES, FEES, OR FINES; TO AMEND SECTION 27-30-130, RELATING TO THE ENFORCEABILITY OF A HOMEOWNERS ASSOCIATION’S GOVERNING DOCUMENTS, SO AS TO PROHIBIT THE ENFORCEABILITY OF A PROVISION GRANTING A HOMEOWNERS ASSOCIATION THE AUTHORITY TO FORECLOSE ON PROPERTY; AND BY ADDING SECTION 29-3-810 SO AS TO PROHIBIT A FORECLOSURE ACTION NOT AUTHORIZED BY STATUTE.

For the HOA to collect any back dues there must be sufficient equity in the property over any mortgage. The HOA can only get $$$$ from long-time paying owners with little or no mortgage. Its overuse is purely a draconian punishment and feeding $$$$ for the HOA attorney! Municipal/state foreclosure doesn’t involve substantial attorney fees that often exceed the debt owed the HOA, several times over. Shame on state legislatures that protect HOAs with special laws for special entities.

Isn’t an HOA foreclosure also tantamount to an excessive fine?[2] It’s a penalty for a violation of the CC&Rs. In Timbs v. Indiana[3] the US Supreme Court held, “The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.” This opinion did not address the 8th Amendment’s cruel and unusual punishment clause as also being applicable to the states under the 14th Amendment. However, the intent of the 14th Amendment was quite clear to the Supreme Court.

“The Fourteenth Amendment’s Due Process Clause incorporates and renders applicable to the States Bill of Rights protections “fun­damental to our scheme of ordered liberty,”

This bill will no longer allow the owner’s home to be treated as collateral for the survival of the HOA! The SCOTUS opinion should render HOA foreclosures null and void. It’s up to the SC residents to make this bill become law!  You must be proactive in supporting Rutherford.

 

References

[1] See “Draconian punishment and intimidation, No. 8,”HOA Common Sense: rejecting private government, George K. Staropoli( 2013).

[2] Technically speaking, the word “fine” means punishment order by the courts for a crime. A penalty is a punishment for breaking a law, or rule, or contract. In HOA-Land the terms or used quite loosely.

[3] Timbs v. Indiana, no. 17-1091 (U.S. 2019).

Is your HOA becoming obsolete?

The Wall Street Journal published a report by Laura Kusisto and Cassidy Araiza, “OK Boomer, Who’s Going to Buy Your 21 Million Homes?” (Nov. 23, 2019, only Available to WSJ subscribers).

This lengthy report warns of a drop in Gen Xers who are not expected to seek retirement homes, even adult active communities, and specifically speaks about Sun City among others. While not to be confused with Sun City West or Sun City Grand, the report broadly addresses the outlook of the “replacement” home buyers when the baby-boomers die off in the next 20 -30 years.

But the same demographics that propelled Sun City’s rise now pose an existential challenge to this suburb as baby boomers age. More than a third of Sun City’s homes are expected to turn over by 2027 as seniors die, move in with their children or migrate to assisted living facilities, according to Zillow. Nearly two thirds of the homes will turn over by 2037.

One in eight owner-occupied homes in the U.S., or roughly nine million residences, are set to hit the market from 2017 through 2027 as the baby boomers start to die in larger numbers.

The reporters add an explanation of what may lie ahead for members of retirement HOAs.

One problem is that the bulk of the supply won’t necessarily be in places where these new buyers want to live. Gen Xers and the younger millennials have shown thus far they would rather be in cities or suburbs in major metropolitan areas. They have little interest in migrating to planned, age-restricted retirement enclaves in sunnier corners of the U.S. lined with golf courses, community centers and man-made lakes.

The report continues by describing the steps taken by the Sun City HOAs to lessen the effect of this anticipated event. They include:

    • [reinventing] reinvent themselves by lifting age restrictions and adding amenities like playgrounds and schools in an effort to appeal to Gen Xers or millennials;
    • The development even has a “next generation” club for people like herself who are under 70 years old. “Their main export industry is selling homes to [older] people who are coming from more expensive parts of the country”
    • “Just the things that people who are 20 years younger take for granted that they’ll have,”
    • But some in Sun City are making adjustments they hope will be attractive to the next generation. the Sun City Home Owners Association, is posting pictures and videos of the community on Instagram and Twitter. She noted that local recreation centers now have Wi-Fi.
    • Sun City . . . is constantly remodeling and putting in upgrades like automatically opening doors and data ports.

HOA boilerplate hold-harmless clauses against public policy?

Background on case.

The HOA, Jade Winds, had filed bankruptcy and the management firm, First Residential Services of FL, filed a proof of claim (informing the court that it is owed money) with the bankruptcy court for some $156,796.21.

The issue at heart is the HOA’s counterclaim against the management firm, alleging numerous violations of its contract with First Services. First Services defended by turning to the hold-harmless clause (also known as an exculpatory clause) in its contract with the HOA.

[FirstService] shall not be liable to the Association … for any injury, loss or damage to person or property unless caused solely by [FirstService’s] own gross negligence or willful misconduct or arising solely out of a material breach of this Contract.[i]

(Check your governing documents and guess what, you’ll find a hold-harmless for the BOD).

Court decision.

The Court held that “Public policy disfavors exculpatory contracts.” But, as expected, there are some “outs:”

“Nevertheless, exculpatory clauses generally are enforceable if drafted unambiguously. Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.

Please read the above very carefully. Its wording similar to the requirement to validly waive or surrender your constitutional rights, which we know is ignored by the courts in HOA matters.

The court put forth the long held doctrine that “If this provision exculpated the Defendant simply because the damage or loss involved acts or omissions by others, it would render illusory significant portions of the Contract.” In other words, you can’t touch me no matter what I do. Now the presumption is that, in all fairness, nobody is that dumb and foolish to agree to such a clause. (The bankruptcy court rejected FirstService’s motion to dismiss).

For your consideration.

Now understand that the same legal reasoning that views vague hold harmless clauses as against public policy can be applied to the vague CC&Rs amendment process. The content of the amendment process is so imprecise that the members can be asked to approve changes that have a far-fetched relationship to the purpose and intents of the CC&Rs.

In these instances, the homeowner has no or very little reasonal expectations that the BOD would seek certain amendments, like using assessments to pay for a little league baseball team, or to support a golf club not owned by the HOA and not part of the HOA’s common ground, or to spend $2.1 million on a “modern” looking administration building.

The CC&Rs are silent on the review of the content of the amendment and, consequently, the courts have no justification to raise content issues. The courts just check if the voting process was “legit” and the requisite number of votes for approval was attained. Given the fact of substantial members who are authoritarian followers, all BOD actions and procedures and amendments are more often than not approved.

The boilerplate amendment process needs to be modified to require amendments to be justified by the BOD as meeting its good faith and prudent man – would a person or the BOD spend its own money—obligations to the members.

References

[i] Trade Winds v. FirstService Residential FL, CASE NO. 15-17570-BKC-RAM (Bankr. S.D.FL March 22, 2019).

State legislators have placed HOAs above the law

There are strong parallels between the shameful conduct of our elected officials in Washington and that of “elected” HOA boards, each made possible by the strong support of irrational, dogmatic cult followers. In turbulent Washington with the upcoming impeachment of trump, Congressional Democrats and some Republicans are staunchly upholding a fundamental principal of democracy: no one is above the law!

To allow any person or organization to operate above the law is to reject the US Constitution founded on representative democracy. In Washington there is the minority faction of Republicans and in HOA-Land[1] there is the a majority faction of homeowners who accept the conduct of the leadership, failing to recognize its wrongful and illegal conduct. By their active support, these authoritarian followers[2] are placing the leaders above the law. Cults exhibit a lack of any freedom of mind by their followers who blindly and irrationally submit to the will of the cult leader.

“What has this to do with state legislatures and HOAs,” you may ask. Plenty!

Over the years state legislatures, each and everyone, have by acts of commission and omission enacted special legislation — generally known as PUD, CID, HOA, POA, etc. Acts — for a special class of nonprofits that placed HOAs above the law. While granting and permitting broad de facto political governance over the residents of the HOA subdivision, HOA boards of directors, the directors themselves, the officers, and their attorneys and managers/firms are not subject to effective enforcement by the application of meaningful penalties.

There are none or hardly any provisions for the enforcement of the law that are substantial enough to serve as a serious detriment to continued HOA board violations of the law and their contractual obligations. This unconscionable state of affairs is the result of the failure to enact legislation to hold HOAs answerable to the law. It is the public policy set by the state legislatures, themselves, as found in their enacted laws to hold and place the HOA and its leadership above the law.

 

If Trump is not impeached and removed from office, there would be little hope that the state legislatures would feel compelled to honor their oaths to uphold the US Constitution and to hold HOA-Land to the laws of the land. The shameful conditions of HOA-Land statutes will continue with little fear of Congressional interference. Without the fear of enforcement – shared by HOA- boards — State legislatures would be given an enlarged “free ride” that violates the US Constitution.

 

Author’s note:  The public needs to stop being conned by “political correctness,” which is the real-world embodiment of Orwell’s Newspeak.

“Many can see the parallels and extensions of Orwell’s 1984 in the real 1984, and current world. In 1949 George Orwell published 1984 where the fictional Oceania (formerly known as England) is a totalitarian state that has instituted a new society designed for the survival of the country. . . . Thought Police (don’t speak out or question, or else); Doublethink, creating the ability of the people to hold and accept two contradictory thoughts at the same time; Newspeak, the official language, replacing English, that redefines words and concepts; Ministry of Truth, the agency of propaganda and historic revisionism; and the Ministry of Love, the agency of regulations and enforcement.”[3]

Political correctness is not ethical or moral correctness! It has been instituted in the US to support the government from attack or criticism. Its purpose is to intimidate the public, by social ostracization, from its right to free and open political free speech and discussion. And it has been very successful both in general and in regard to HOA members.

 

References

[1] 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 that collectively constitute a nation within the United States. For more see, Defining HOA-LAND: what it is. (George K. Staropoli, HOA Constitutional Government.)

[2] See in general, “HOA political dynamics: totalitarian democracy.” George K. Staropoli, HOA Constitutional Government.

[3] George Orwell’s 1984 is alive and well in HOA-Land, George K. Staropoli, HOA Constitutional Government.

Homeowner Advocate Research Research

FYI —-

I have collected, and read over the years, several hundred federal and state opinions on HOAs, state actors, mini-governments, foreclosure, due process, equal protection of the laws, constitutionality, etc.  Must be supreme court or appellate court records. It would be helpful to all if you would forward me a link to any important cases that you’ve come across so I could add them to my database.  Email as attachment to info@pvtgov.org, or fax to private fax at 480-907-2196.

Any questions can be sent by text or, preferably, email. No calls please.

Thanks.

halris_card

HOA books at discount for holidays

Homeowners, advocates, the media investigators and state legislators get informed;  step outside the box for the Holidays.  Here are 3 eBook/Kindle discounts and dates —

 

Establishing the New America of Independent Principalities:            Dec.14 – Dec. 21

HOA Common Sense: rejecting private government:                             Nov. 16 –  Nov. 23

The HOA-Land Nation Within America:                                                  Dec. 19 –  Dec. 26

 

Clarifying the mission of an HOA advocate coalition

Below is a copy of my response to a post by Maria in the CHAPS Paladins FB group,

Maria, your call to action seeking a mission or objective for a national association is a good, first step.

With all due respect to advocates and homeowners, I strongly believe that we first need to clarify what we mean by HOA. Are we talking about the real estate “package” of a regulated subdivision with landscaping, amenities, and social activities? Or are we talking about the model of private, contractual government of the subdivision?

I have not seen any, to my recollection, reform bills dealing with the subdivision assets per se, except some complaints about having to join a golf club. The reform bills are all about how the “laws” that regulate or coerce the members to comply on the pain of losing their home. This is a very important distinction that must be made known to the public, the media, and legislators in order to obtain reforms of the governing body.

It would need to take the form of a rejection of the old and the creation of a new model, similar to what the Founding Fathers did in rejecting the Articles of Confederation and establishing the US Constitution.

Doing away with the package is not practical; it would be like closing General Motors or the large banks — won’t happen. Reforming the governing model subdivision is the true objective of HOA reform legislation and is possible only when the advocates can force the public, the media and the legislators to uphold the US Constitution and have it apply to these de facto, but not recognized local governments.

You are right on Maria to seek the establishment of a national voice for HOA reforms. Clarifying the meaning of HOA would go a long way to achieving this goal. It would steal the thunder from CAI’s fear mongering of no more private amenities, etc.