If only advocates would stand up to CAI

This month, April 18th and 21st,  I posted comments[1] on the dereliction of duty by state legislatures and the need for the DOJ to investigate state legislatures as well as the undue influence by CAI teachings in its School of HOA Governance[2]  Yesterday, the 23rd, it seems that CAI is trying to soften its misleading statements and failure to disclose the whole truth about HOA-Land.  Previously I had commented upon Kelly G. Richardson’s[3]  2020 article  in The Public Record,[4]

“Richardson seems to be saying that indeed a director has a fiduciary duty to the member but that duty to the HOA comes first.   He further warns directors, who have relevant knowledge and expertise, to remain mum and not speak out least he be sued. If the director chooses to speak out as he should do in the best interests of the HOA, ‘the director is not acting as a director but is an unpaid consultant and could be held liable for their advice.’”[5]

In yesterday’s “ HOA Homefront: What surprises lurk in your CC&Rs?”[6]  Richardson added to his attempt to “tell it like it is” revealing some hidden aspects of CC&Rs. (Emphasis added).

“Here are 11 things about CC&Rs that might surprise you, before you read them. 

“CC&Rs bind all owners, regardless of whether they read it, understood it, or received a full copy of it. As a recorded document, CC&Rs are a “covenant running with the land,” meaning a legal commitment attaching to the land and therefore its owners.

“Normally enforced by courts, even if they seem unreasonable. The California Supreme Court ruled in 1994 that CC&Rs are presumed enforceable, with some narrow exceptions (such as if they contradict a law).

Original developer-supplied CC&Rs often are boilerplate with parts not applicable to the community. This is because the developer’s primary interest is to obtain quick approval from the Department of Real Estate to begin selling the homes.

As limits upon owner autonomy, CC&Rs can seem intrusive at times. These limits help to protect neighbors from unneighborly behavior and against properties detracting from the community.”

I must admit he comes clean to a certain degree admitting to some of those hidden aspects of CC&Rs, which the interested parties including legislators and the media should have been made aware prior to any decision-making, or before buying a home in an HOA. Too late after the fact!  Additionally,  Richardson fails to “call for action” — frequently used by CAI chapters — to correct these silent gotchas by adopting my proposed legislation,[7] which plainly says,

“The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes. Legislative dereliction of duty

“Furthermore, any governing documents of an association not in compliance with the above shall be deemed amended to be in compliance, and notwithstanding the provisions of any law to the contrary, a homeowners’ association shall be deemed to have amended its governing documents to be in compliance.

Lesson to be learned

For far too many years advocates and homeowners have failed to rally against the heavy influence of CAI on state legislators and the media, thereby allowing CAI to set the tone unchallenged.  This failure demonstrates a severe weakness to achieve HOA reforms of substance.  It is widely known, and proven countless times in other successful arenas, that legislation is accomplished by means of a widespread outcry by the “victims.”  Former Colorado Senator Morgan Carroll strongly advises her readers,

We elect people to represent our interests, but our elected representatives cannot adequately represent you unless they hear from you. . . . If you don’t participate in your government, then the only remaining participants in the system are legislators and lobbyists.” 

It has been a long time failure by homeowner rights advocates to achieve meaningful, constitutional reforms. For whatever reason for this lack of involvement in a nationally united front, the practical reality has been the continued control and dominance by the CAI School of HOA Governance.[8] 

As an aside, CAI’s March “Call For Action”, “Grassroots Advocacy Initiatives Are More Essential Than Ever,” seems to be desperately seeking more active grassroots  involvement by its members, yet advocates remain silent.

“It is more important than ever for CAI advocates to engage in grassroots activism across the country. CAI believes it’s crucial for our members to tell legislators their stories and help them better understand the need for proper public policy decisions when approaching state legislation regulating community associations.”[9]  

Presently, Colorado’s HB 21-1229 is falling by the wayside as well as Arizona’s HB 2052, resurrected from last year’s SB 1412, both excellent reform bills.  California is facing problems with  SB 391 and in Florida  SB 623 (2020) went into defeat.

If only more had come forward and challenged, criticized, and exposed CAI we would have achieved much, much more.  Richardson’s article offers an excellent opportunity to step up to the plate!

References


[1] See Legislative dereliction of duty: supporting HOAs and   State legislatures must be held accountable for dereliction of duty.

[2] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[3] Kelly G. Richardson: CAI Board of Trustees 2011-2017; Community Associations Institute (CAI), National, President, 2016; College of Community Association Lawyers (CCAL), 2006; CAI’s California Legislative Action Committee, Chair, 2009, 2010; National Association of Realtors; California State Bar Association, Real Estate & Litigation Sections.

[4] HOA Homefront: Fiduciary Duty – What It Is, And Is NOT,

[5] CAI School faculty advice – managing HOAs.

[6] The Press-Enterprise, News, Housing, Opinion (April 23, 2021).

[7] See for example, Legislative dereliction of duty: supporting HOAs.

[8] Supra n. 2.

[9] See Grassroots Advocacy Initiatives Are More Essential Than Ever .

HOA advocate to advise committee on UCIOA revision

I was invited to participate in the drafting of revisions to the Uniform Law Commission’s (ULC) Uniform Common Interest Ownership Act (UCIOA) and Uniform Condominium Act (UCA). As an invited Observer with full participation rights I bring “in the trenches” in-depth experience and extensive research to restore the lost Constitution to HOA-Land.

With the advocates’ failure to nationally unite and collaborate to attain substantive HOA reforms, going forward with ULC’s statewide collaborative approach will benefit all interested parties, including HOA members. The drafting committee is comprised of conscientious and dedicated unpaid volunteer attorneys appointed by their state. Uniform Acts (UCC for example) adopted by ULC are presented to state legislators to adopt and to ease the disorder brought about by different rules in different states that affect a person’s home in an HOA.

My late 12 hour introduction into the amend and revise procedure allowed me to orient myself to the functioning of the UCIOA committee as well as presenting a few points of view. The proposed UCIOA changes are in the review process and need to be approved by the ULC commissioners at their annual meeting, yet to be determined as a result of the coronavirus restrictions.

When and if future revisions to UCIOA are in order I hope to participate more fully.

CAI concerned about growing strength of advocate arguments for HOA reforms?

Please understand that the proactive efforts by advocates across the country, especially the new reform legislation, are making CAI very nervous.  Look what CAI has done to get more $$$ to fight advocate legislation.

Issues Advancement Fund (IAF) 

What is the Issues Advancement Fund? CAI’s Board of Trustees established the Issues Advancement Fund to help support and advance CAI’s legislative, regulatory and legal advocacy efforts and programs. It was established to provide a resource base to enable CAI to respond to challenges, which, if unmet, could undermine community associations, their residents and member professionals. The Issues Advancement Fund works to support efforts at both the state and federal levels.

Who can contribute to the IAF? The Issues Advancement Fund accepts voluntary contributions from individuals, associations and businesses that wish to directly support CAI’s government affairs initiatives.

The very powerful CAI California LAC (CLAC) admits to the need for its top-line – CAI’s view – lawyers in CCAL to defend the HOA legal concept that flies in the face of our constitutional system of government (my emphasis).

How CLAC Benefits from CCAL Attorneys

“CCAL attorneys have played a significant role in CAI-CLAC and provided countless volunteer hours and dedication since the formation of this organization,” says current CLAC Chair Darren Bevan. “These attorneys offer their expertise and real world experiences as this organization works towards smart legislation that preserves community.

CCAL lawyers commit themselves to raising the bar of professional and ethical conduct in representing community associations in such areas as education, advocacy, governance, and career mentorship.

Being recognized as a CCAL Fellow is the pinnacle of the legal profession for the community association lawyer.”

(http://www.caionline.org/govt/advocacy/Pages/IssuesAdvancementFund%28IAF%29.aspx).

Earlier this year in Arizona, 2013 CCAL President Scott Carpenter hit the nail on its head when he cautioned his audience in Top 10 For 2015 (Arizona Carpenter Hazlewood online seminar).

“What we are seeing is that the [homeowner] attorneys are becoming more sophisticated and making more sophisticated arguments, and the litigation is becoming more and more challenging in the sense they are raising arguments that are harder for us to beat back . . . .” (7:31 – 8:10)

CAI can be beat easily with fundamental constitutional arguments and avoiding CAI’s narrow real property approach to community government. CAI still speaks of community associations while arguing HOAs are businesses. Doesn’t make common sense, does it?  Just demand CAI answer this obvious contradiction, reminding them that advocates are not stupid.