Yesterday, June 24, I attended a ZOOM meeting with a number of attorneys from across the country who were debating 1) whether or not new HOA laws should be applied retroactively to all HOAs even those that were formed prior to the effective date of the new law, and 2) should draft versions of the HOA minutes, from member and board meetings, be made available to the members and when.
The general attitude was that new laws should be made retroactive for the “comfort” of judges and BODs — too many old laws was a pain. But America has existed for over 234 years with restrictions on ex post facto laws, and more generally, restrictions on civil retroactive laws. While the consensus would allow for individual pre-law HOAs formed prior to the effective date to opt-out of retroactive application, failure to do so would automatically subject the HOA to the new version of the law a few years later, regardless. The rationale was that the HOA had an opportunity to remove itself from the law. The general consensus was to adopt the retroactive law in spite of the fact that it was coercive in nature. HOAs were promoted with this privacy aspect and objections to top-down government interference of one size fits all.
Allow me to explain, if an act, either by the HOA or by member, was valid at that time a subsequent version of that law would apply. Applying the new law could make such a pre-law act invalid with potential financial consequences for the member. For example, putting a then valid storage bin in the backyard is now invalid if over a specified footage, and must be removed at the member’s expense. Or forced to paint his home because the new law gave the HOA permission to require new painting for the good of the community. These ex post facto laws, like the ex post facto HOA amendments, make your alleged contract at closing a mere piece of paper and your rights surrendered to the whims and views of your neighbors. These retroactive laws are coercive and do not serve member justice nor reflect a home rule doctrine where deference is given to the local community.
In regard to draft minute access, concerns centered around practicability and protecting the HOA, even though many states have laws allowing for verbatim videoing of these meetings — a growing trend toward transparency. I called to their attention that making draft versions available served as a check and balance on BOD conduct and that it would make the BOD’s actions more circumspect. I also raised my concern with regard to the timing of draft and approved minutes since delays of over a month are an obstacle for effective member response – limiting any after the fact opposition. In general, it was felt that the member should attend these meetings if concerned, which also raised practicality issues. There was substantial support for draft availability.
Overall, the attitude was toward protecting the HOA over BOD transparency.