HOA foreclosures and reverse mortgages: doing it right

People living in HOAs are getting a raw deal when the homestead statutes and bankruptcy laws do not protect against HOA liens.  But, maybe a solution to draconian foreclosures is possible by using the reverse mortgage process.

In short, the RM is a HECM loan (see Hud’s Reverse Mortgages) that allows the owner to remain in his home mortgage free and provides him with cash for his unrestricted use.  A condition of the HOA RM would be to pay HOA dues thereby cutting out the unconscionable enrichment of the HOA lawyers.   The term of the loan can be set, say, to 5 or 10 years at which time the owner must pay off the loan or sell his home to do so.  This will allow the owner to live there  for some period of time before selling, yet give the HOA its assessments.

 Others issues that are handle are: currently, the RM is set to about 16 years (age 78 if 26 at time of loan), so the special term limit is necessary to protect HUD; and there must be sufficient equity to offset the steep discount in cash available to owner by RM, but this condition exists today with the current foreclosure process.

 Adopting this approach is not only doable, but makes the HOA “community” a true community with a heart.  I mean, the IRS is not as harsh as the HOA in taking one’s home or garnishing wages to collect unpaid taxes.

(Proposed to Arizona Legislator).

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Published in: on June 1, 2018 at 9:43 am  Leave a Comment  

Calif. SB 1265 declares that HOAs are quasi-governments

 

California Sen. Wieckowski has sponsored SB 1265 that opens with, emphasis added,

SECTION 1. Section 4801 is added to the Civil Code, to read:
4801. The Legislature hereby finds and declares both of the following:

(a) Common interest developments function as quasi-governmental entities, paralleling in almost every way the powers, duties, and responsibilities of a local government.

(b) As a result, it is the intent of the Legislature for this chapter to ensure that democratic principles and practices are in place with respect to the governance of common interest developments.

The bill addresses my HOA Common Sense, No. 4 on democratic elections.[1] Facing our society and the role of HOAs, people must choose between laissez-faire private government vs. Constitutional government. Many object to state restrictions and CAI promotes unregulated governments without oversight as not being any problem.

Kelly G. Richardson wrote a column in the OC Register[2] proudly proclaiming that he’s CCAL in order to give the appearance of authority and expertness, but fails to mention that he’s CAI true and true or that CCAL is a CAI group. Talk about transparency and propaganda! In it he denies HOAs are quasi-governments, arguing that “This is a dangerous and false statement,” but offers no supporting evidence for his opinion.

Yes, it is dangerous to the current HOA legal scheme supported by state laws that favor the HOA entity over the rights and freedoms of their members, who are the people of California. As I’ve maintained, HOAs are de facto private governments operating outside our system of constitutional democratic government and not recognized by the state.[3] That means they exist and function like public government but state legislatures refuse to acknowledge that fact!

If the HOA wants to make its own laws, and most states give a large degree of freedom to local municipalities, especially under their “home rule” laws, why isn’t CAI promoting this constitutional method for HOA governments? In reality, CAI is subversive seeking to undermine constitutional government by playing on the emotions of the people.

And in what amounts to fearmongering, both Richardson and the California HOA lobbying entity, CAI-CLAC, make the following false arguments, that “It also strips local community associations of their local control as to whom can serve on their boards” and Richardson’s own, “This bill would bar any HOA board candidacy eligibility requirements.”[5] The Evil Empire alleges that the bill changes provisions regarding  who can be a board member and removes current HOA conditions for board membership; such as having a criminal record, or behind in dues, etc. A reading of the bill shows no such alterations of existing law that affect membership requirements or voting rights. See Section 5105 of the bill.[6]

This bill may not be perfect and not please everybody. No comprehensive bill in a democracy will do so. What it does do is to make a strong case for the defects in the private HOA government model in contrast to public government. 

I congratulate Senator Wieckowski on sponsoring this very important bill.
References

  1.  HOA Common Sense: rejecting private government, George K. Staropoli, Amazon Kindle, 2013.
  2. HOA Homefront: Potentially disastrous HOA bill pending in Sacramento, April 25, 2018.
  3. Supra, n. 1.
  4. “April CLAC-TRAC: CAI-CLAC’s 2018 Legislative Positions,” CAI-CLAC newsletter email of April 24, 2018.
  5. Supra, n. 2.
  6. See SB-1265 Common interest developments: elections.
Published in: on April 26, 2018 at 8:43 am  Comments (3)  

Where, oh where can the HOA Handbook be?

Where oh where can the HOA Handbook be?  Oh where, oh where can it be?   Nowhere to be found, that’s where!

It came to my attention a few days ago that an attempt was made to buy the Homes Association Handbook[1], the HOA bible as I’ve frequently called it.  As I’ve been told, not even ULI (Urban Land Institute), the publisher in 1964, is selling it.[2]  (It’s not on Amazon). Anybody know why?

Perhaps in the light of recent disclosures and constitutional issues the promoters of the HOA legal scheme and marketing plan contained in the Handbook it can be quite disturbing to today’s special interest promoters.  I mean I’ve not found any analysis or commentary on the Handbook except for Prof. Even McKenzie’s Privatopia[3] and Donald Stabile’s CAI-ULI self congratulatory book, Community Associations [4].

If you read my Advisory blog, HOA Constitutional Government, you might have some idea why not. Or try reading Part I of The Foundations of Homeowners Associations and the New America; or Part 3 of Establishing the New America of independent HOA principalities.  You don’t have to be an Einstein to quickly realize that state laws and the CC&Rs all flow from the Handbook.

But, our elected officials see know reason to be in the know, and the media just follows along $$$$, leaving the average homeowner at the bottom of the food chain with no reason not to accept HOAs.

 

References

[1] Homes Association Handbook, Technical Bulletin #54, , ULI, 1964.

[2] In 2006 with the help of the late Donie Vanitzian I was able to get a copy of the 400+ page, 8 ½ x 11 document at a cost of $180.

[3] Privatopia: Homeowners Associations and the Rise of Residential Private Government, Evan McKenzie, Yale University Press (1994).

[4] Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing,  Donald R. Stabile (Greenwood Press 2000).

Published in: on April 25, 2018 at 1:44 pm  Leave a Comment  

The Sinclair revelation: media control of HOA news

Numerous times in the past I’ve accused the media of biased, pro-HOA and anti-member news that misrepresents the facts about HOA-Land, misleading their viewers.[1] I’ve argued that there is an “unspoken alliance of ‘no negatives abut HOAs’” involving the media.[2]

Today, the revelations that Sinclair media ownership mandated news to be aired by its stationed across the country tells it all.[3]  Trump’s support for a merger with the Tribune company, another large media firm, is dangerous as it will affect 74% of the news outlets.  It has been reported that Sinclair’s news anchors had to read the same script about fake new, verbatim, 9 times in a day.  Dangerous, very dangerous for a free and open society that’s necessary for the healthy functioning of a democracy.

I complained to several Arizona TV stations to no avail.  Especially those smiling, laughing, joking ‘bobbing heads’ who dared to proclaim the corporate line that they tell the whole truth, that they ask the hard questions, and that you can trust them. Yea, right!  They are just pawns in the bigger political game, collecting their paychecks.

There are conscientious reporters like Judy Thomas of the KC Star[4] who tried to do what’s right, but ran into the corporate bias wall.

It should be no surprise that HOA-Land news is also under the thumb of private, corporate special interests. Where are the these media corporations getting the lowdown on HOAs?  Can you guess?  Who is the dominant, single national entity that lobbies state legislatures and issues tons of self-promoting propaganda for media consumption?  Yep, you guessed it!

References

[1] See examples: Arizona Republic: A new low in media ethics and a violation of the public trust. (2007); Continued national HOA problems and the failure of the media (2007).

[2] Good night and very good luck – the unspoken media HOA alliance (2012);  HOA-Land success aided by the failure of investigative reporting (2017).

[3] Sinclair Made Dozens of Local News Anchors Recite the Same Script (NY Times).

[4] KC Star: problem with HOA? Don’t go to CAI (2016).  Excellent series, but failing to address substantive  constitutional issues.

Published in: on April 2, 2018 at 8:18 am  Comments (3)  

Resurrecting the argument for a homeowners bill of rights

This demand for a homeowners bill of rights by homeowner rights advocates had its play back in the 1997 – 2008 period, some 10 years ago. There was:

  • the AHRC’s 1997 bill,[1]
  • Lois and Samuel Pratt’s 1999 bill,[2]
  • my 2000 address to the AZ Legislature[3],
  • the 2006 AARP bill of rights,[4]
  • and my 2008 “Members Bill of Rights” amendment to CLRC.[5]

And there are undoubtedly others that I missed. Deborah Goonan recently re-posted a 2015 article[6] speaking of no Bill of Rights and constitutional violations of the 14th Amendment.  In 2017 the California Legislature adopted a limited bill of rights dealing with member political free speech.[7]

A new look at homeowner rights is needed, one that takes a down-to-earth approach and focuses on the common CC&Rs covenants and bylaws that read like,

  1. If there are conflicts between the provisions of Arizona law, the Articles, the Declaration, and these By-Laws, the provisions of Arizona law, the Articles, and the By-Laws (in that order) shall prevail.
  2. these By-Laws [Declaration] may be amended only by the affirmative vote or written consent, or any combination thereof of Members representing at least 51% [67%] of the . . . votes in the Association.
  3. no amendment may remove, revoke, or modify any right or privilege of Declarant . . . without the written consent of Declarant

Over the years I’ve discovered that the courts have universally upheld the broad amendment covenant as generically stated in (2) above.  The basis of their decisions is the very dangerous and overly broad interpretation that homeowners agreed to be bound[8] by the CC&Rs and bylaws.   Note that (3) above carves out an exception for the Declarant that requires his explicit consent, while accepting the majority rule principle in regard to the members. But, this “acceptance” to be bound by majority rule violates a fundamental right of citizens in regard a governmental “taking” or eminent domain action.

In many instances the courts have required 100% consent when the amendment adds new covenants, covenants not found in the CC&Rs, the most notable being changing from a voluntary HOA to a mandatory HOA.  This would be inconsistent with (1) above that holds that the law of the land prevails, and which of course, the buyer also agreed to. But, CAI comes to the rescue and prevails in the courts that the CC&Rs and bylaws contain valid waivers and surrenders of fundamental rights, even to the extent of accepting implicit (not stated but presumed consent) waivers and surrenders as valid.

Hold on! It is long held legal doctrine that the surrender and waiver of these rights must be explicit, one by one. And that, under contract law, there must be a meeting of the minds with full consent and no misrepresentation in the buying process. I have concluded that,

Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.

The point I wish to make is that the absence of any meaningful bill of rights that genuinely protects the rights of HOA members is ab initio (from the beginning) a rejection of democratic norms and institutions.  The HOA cannot, therefore, be considered democratic by any means regardless of the propaganda by CAI and other pro-HOA supporters.

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis.

. . . .

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable.[9]

Simply unbelievable!  (In face of subsequent advocate criticisms, CAI began speaking of HOAs as a business, and we are seeing more and more statements that when a homebuyer signed his real estate contract, he was actually investing in a business.  Unbelievable!  Shades of George Orwell’s NewSpeak from his novel, 1984, where people are indoctrinated to hold 2 opposing views at the same time, and be at peace.)

What is intentionally absent — yes, intentionally otherwise the renowned CAI layers would have to claim incompetency regarding the law – is a Homeowners Bill of Rights.  Can you imagine that if the HOA framers, those stakeholders, of the HOA concept had actually met and discussed with knowledgeable and informed public that there would be protections for homeowners?  Can you imagine?

What the absent, yet informed public, would have added was a Preamble to an Amendment to the CC&R that would have been like that found in the Bill of Rights:

 Preamble to the US Bill of Rights

“THE Conventions of a number of States, having at the time of 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:”

The basis for the BOR was a distrust of government and the need to further protect the people.  Regarding the HOA documents, the 9th and 10th Amendments, as applied to the HOA legal scheme, would prevent the broad interpretations that have been and are continuing being held by the courts.  No more generalities, except in favor of the members.  If it was good for America over 230 years, it must be good for HOA-Land!

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The 9th Amendment simply says that if it ain’t specified – enumerated — in the governing documents, it belongs to the membership.  No more broad interpretations of waivers and surrenders of rights.  The 10th Amendment simply says that if the members did not explicitly agree to certain HOA powers (delegated to), it belongs to the membership.

This is the argument and approach needed to get a Homeowners Bill of Rights accepted by state legislatures.  It should be a national campaign by all advocate groups in all states for their next legislative session.  There is time to organize and prepare.

 

References

[1] See “Short History” in co-opting the HOA “homeowners bill of rights”, Elizabeth McMahon, 1997.

[2] See A BILL OF RIGHTS FOR HOMEOWNERS IN RESIDENTIAL COMMUNITY ASSOCIATIONS (1999).

[3] Statement to AZ Legislative Homeowners Association Study Committee, 2000.

[4] A Bill of Rights for Homeowners in Associations, AARP HOA Bill of Rights, David Kahne 2006.

[5] Supra, n. 1. “CLRC” is the California Law Review Commission.

[6] Let’s Get Some National Attention on HOA, Housing Issues, Deborah Goonan, 2015 original post.  

[7] A California true HOA Bill of Rights (SB 407).

[8] For a summary of the issues regarding the agreement to be bound position, seeConsent to be governed, No. 4, HOA Common Sense: rejecting private government.  The notes contain very important authorities on this issue.  (In only one case did a court reject this position because it felt that the amendment exceeded the reasonable expectations of the homeowner.  For example, having part of their assessments go toward a private entity unrelated to the HOA).

[9] CAI CEO Skiba in his April 2, 2008 Ungated blog entry.

Published in: on March 18, 2018 at 12:07 pm  Comments (1)