HOA Bill of Rights redux

 I spent the last few months working on a revitalization of a long forgotten topic: Where is the HOA member Bill of Rights?

A brief history

In 1994 Evan McKenzie said it plainly, and is true today,

“T]he property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander. . . . [Consequently,] this often leads to people becoming angry at board meetings claiming that their ‘rights’ have been violated – rights that they wrongly believe they have in a [HOA]. (p. 148).”[1]

In 2000, before the Arizona Legislature’s HOA hearing committee I made an appeal for a member bill of rights:

“[Homeowner rights advocates] first looked to the existing government, the HOA Board, and having failed to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association and its controlling document, the CC&Rs. What is needed is an inclusion of a homeowners Bill of Rights and the removal of such onerous provisions that make the homeowner nothing more than an indentured servant, living at the suffrage of the board – pleased if the board is benevolent; living in fear if the board is oppressive.”[2]

In 2005, some 5 years after my introductory statement to the Arizona Legislature, HOA member rights — an HOA Bill of Rights, a constitutional issue — took hold.  Nothing developed until The California Law Review Committee (CLRC), in 2005, timidly announced a “Chapter 2, Members Rights, Article 1, Bill of Rights,” in its preliminary draft to revising the applicable Davis-Stirling Act.  It immediately disappeared from the initial draft of revisions, but upon repeated exchanges on homeowner rights by the late Mrs. Elizabeth McMahon and Donnie Vanitzian, and yours truly,

CLRC finally responded in 2005: “CLRC responded with, ‘However, a bill of rights would probably go beyond the substantive rights that are currently provided in the law’ (MM05-03),” and,

2008 “George Staropoli objects to the lack of any substantive extension of homeowner rights. In particular he objects to the lack of any provision addressing the relationship of CID law to the state and federal constitutions. See Exhibit p. 1. As indicated at Exhibit p. 2, Mr. Staropoli first raised these issues in 2005 and was informed at that time that they were beyond the scope of the recodification project. (First Supplement to Memorandum 2008-12).”

In July 2006 AARP released its A Bill Of Rights For Homeowners In Associations: Basic Principles of Consumer Protection and Sample Model Statute, authored by Texas attorney, David A. Kahne.[3]

In 2007 urged the need for an HOA Bill of Rights, citing the intents and purposes of The Preamble to the US Bill of Rights:[4]

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:”

In 2008, after a few years drafting, the Uniform Law Commission produced it bill of rights, Uniform Common Interest Bill of Rights Act (UCIOBORA) as a result of pressures from homeowner rights advocates, AARP, and others to provide homeowners with a bill of rights.[5]

“[ULC acknowledges] 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’ issues touched on during the drafting of the 2008 UCIOA amendments.” 

Criticism followed. In short, UCIOA wasn’t selling.  It seems that UCIOBORA is the sad result of the political motives to get UCIOA selling again. It’s a document that does not at all read like the US Bill of Rights, or any state constitution’s Declaration of Rights (state constitution equivalent of the Bill of Rights), or even the Declaration of the Rights of Man and Citizen (France, 1793).  Far from it.  Rather it reads like your current CC&Rs and UCIOA with a number of concessions to reality. 

The next phase

Currently, I am working with two leading institutions concerned with state laws and the constitutionality of the HOA legal  structure. Addressing the Bill of Rights issue is relevant to conducting necessary research and studies. A Homeowners Bill of Rights would be a major step toward the equal protection of the laws for members of HOAs.

As a result of my proposed research by  independent, obejective researchers,  the law will be clarified and all parties set straight as to their rights, and on the legitimacy and validity of independent private governments in America.

Notes

[1] Evan McKenzie. Privatopia: Homeowners Associations and the Rise of Private Residential Government, Yale Univ. Press, 1994.

[2] Homeowner’s Declaration Of Independence, George K. Staropoli, statement to the Arizona HOA Interim Hearing Committee, Sept. 7, 2000.

[3]AARP HOA Bill of Rights.”

[4] See “Why is there a need for a Homeowners Bill of Rights?,” ,” George K. Staropoli, HOA Constitutional Government.

[5] See in general,  “co-opting the HOA ‘homeowners bill of rights.’” and  “UCIOBORA: an attempt at justice for HOA members,” George K. Staropoli, HOA Constitutional Government.

 

representing yourself in court against HOAs

An excellent post in the August 15, 2015 L.A. Times column, Associations, by Donie Vanitzian, and co-written by attorney Zachery Levine, contains important information on HOA litigation.  Please read it and see what you are up against, and what is needed to have a chance at winning in court.  Thanks Donie for all your good work.

An excerpt:

Success in litigation is based on legal knowledge, resources and organization. Deadlines arise frequently, necessitating quick and timely responses. You are responsible for monitoring what the other side is doing and filing. You must know all applicable deadlines for your case and how to calendar them.

Good luck.

HOA debt and member consequences

From the April L.A. Times column, ASSOCIATIONS, by Donie Vanitzian — Can titleholders pay their share of loan directly to bank?  Here’s a peek.

HOA issue

Even with an annual income of more than $2 million, our association is in a big mess. There’s a several-million-dollar loan inclusive of our reserve account the association is paying off that has a variable interest rate currently at 6.85%. The association can’t touch the reserves because the bank says it’s garnisheed as collateral for the loan.

 The board says we have to pay this money back because the bank is holding our reserve account hostage. If it is borrowed and we can’t touch this high-interest money, can the association just give it back?

Response

 California homeowner associations cannot declare Chapter 7 bankruptcy and wipe out their debt. California appellate courts have ruled that because the association has an unending source of money — the titleholders — with which to pay its obligations, at most it can file for Chapter 11 reorganization. The court can order an association to make an emergency assessment against all the titleholders to pay off its obligation.