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 .

Colorado senator’s guide to effective HOA legislation

An excellent guide for citizens seeking to effectively lobby their legislature to bring about desired change. 

 Take-backThe author, Morgan Carroll, is an eight year Colorado legislator and is currently the Colorado Senate Majority Leader.  Take Back Your Government sends a strong message to citizens to get involved in the legislative process if they sincerely seek change, otherwise the paid, special interest hired-hand lobbyists will strongly influence the legislators. And set the tone for new laws and changes to existing laws.

Carroll’s opening chapter contains advice, such as, “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.  And she reminds her readers that, “Democracy only works when citizens participate, engage and become informed voters.”  And that is why democracy is a farce in the authoritarian HOA private governments where apathy abounds for numerous reasons.

Part II, Advocacy for Beginners, is chock full of “dos and don’ts”  in contacting and dealing with bill sponsors, and how to draft and understand the wording and format of bills. The author provides advice for citizens such as, to “suggest a solution,” make your request “shorter and simpler,” and “summarize prior attempts to fix the problem.”   Her concern for the people include warnings that, “every right [permitted by law] should come with a remedy or an enforcement mechanism, or it’s an empty law.”  And there’s the commonly found use of “shall” and “may,” clarifying that “may” means “is permitted to” or “is authorized to,” both of which mean making the act legal.

And there is much, much more on how to get heard, how to contact legislators, how to testify, creating fact sheets to support your position, etc.  Definitely applicable, but not tailored just for HOA reforms. This book is must reading for advocates, especially HOA reform advocates who have faced a solid wall of indifference when seeking legislative change and who have been unsuccessful in the past. 

Thank you Senator Carroll.

 

Take Back Your Government; A Citizen’s Guide to Grassroots Change, Morgan Carroll (Fulcrum Publishing 2011).

Review by George K. Staropoli, a nationally recognized advocate for HOA reform legislation.