|
|
|
|
|
|
An Article
|
|
A HOMEOWNER BILL OF RIGHTS FOR GEORGIA
July 14, 2005
By
John J. Holley
|
| Roswell, Georgia - The following is a suggestion for a Bill of Rights for Georgia.
It is compiled from the Bill of Rights by the members of American Homowners Resource Center and others.
A HOMEOWNER BILL OF RIGHTS FOR GEORGIA
As homeowner associations have largely developed without any concern for individual rights of homeowners, the Bill of Rights seeks to redress that imbalance.
1. VALUES
This country has consistently held up the ideals of freedom, individuality and resourcefulness. Hence, both the physical design and legal framework of planned unit developments should embody these concepts in significant and meaningful ways.
Another example is the current, dominant practice of allowing tasteless, monotonous designs that are an insult to the surrounding environment. These do nothing to promote the values of freedom and individuality. Another example is the current practice of burdening homeowners with oppressive Covenants that are administered by self-serving and unskilled, inexperienced real estate hacks who call themselves property managers. These do not embody the ideals which this country has traditionally espoused.
2. SPECIAL INTERESTS
As a home is where the spirit of a nation is forged, the interests of such vendors as lawyers and management companies and political boards of directors who will do anything to maintain control of your bank account, must give way to the interests of those people for whom homeowner associations are created - the homeowners. The current Property owners association act was created by special interest groups of lawyers who saw an opportunity to create a whole new arena of business. But homeowners want to buy a home, not a lawsuit, and most Covenants are designed to maximize the creation of a lawsuit.
Covenants created by lawyers which are unduly restrictive and detailed or vague and weasel worded guarantee future trouble in homeowner associations. The bromide defense that people are free to choose to live in an association is a myth perpetuated by these special interests. The clear reality is that if all 6 million Georgians chose not to live in homeowner associations tomorrow, there are not 2 to 3 million homes lying vacant at the moment to accommodate them.
3. HOMEOWNER BILL OF RIGHTS
In light of the above brief comments and extensive discussions with homeowners across the state, I recommend that a HOMEOWNER BILL OF RIGHTS be incorporated as the centerpiece of any and all legislation governing common interest developments and included in the Covenants for the protection of the homeowners individually.
This is an essential and critical feature of any legislative framework for homeowner associations. This HOMEOWNER BILL OF RIGHTS must incorporate a set of provisions ensuring that the rights of individual homeowners are not trampled upon. The history of homeowner associations on a nationwide basis has shown that abuse is rampant - from boards which misuse their power, from the misuse and theft of association money, from repeated violations both of state law and their OWN COVENANTS by boards, their lawyers and managers.
The industry defense that these are isolated incidents belies the reality that the current structure is virtually guaranteed to produce trouble. The fact that lawyers preach to homeowner associations that they cannot do without a lawyer contradicts their minimization of the problem. The fact that they make very good living out of associations, is proof positive and ends debate on the issue. Where there is trouble, there is money for lawyers.
The following specific recommendations are proposed.
HOMEOWNERS BILL OF RIGHTS
1. A statement by the Legislature of the State of Georgia, Fulton County and the City of Roswell, Georgia, that it is the legislative policy of this State and all its subdivisions to promote the nation's traditional ideals of freedom, individuality and resourcefulness in the design, construction and operation of homeowner associations.
2. Covenants, Conditions and Restrictions are to be designed from the perspective of the homeowner, and must respect the central role which a home plays in the life of its citizens.
3. All Covenants should be reviewed and subject to revision and control of the Homeowners under independent supervision of the homeowners.
4. Covenants must be easy to read and devoid of obfuscatory technical jargon.
5. Covenants must mandate the right to equal services and treatment for all, and specify significant penalties against board members, managers and lawyers who violate this right.
6. Covenants, Conditions and Restrictions must mandate the right of all homeowners to complete access to the books and records of the association with significant personal penalties against board members for violations.
7. A very clear statement of the restrictive provisions in Covenants and penalties for their violation must be presented to prospective new buyers at the start of escrow. In addition, there should be very clear disclosure of all lawsuits, construction defects and liabilities, and Covenant violations that affect the home sought to be bought and/or other homes in the project and common property in the association.
8. All association elections are to be conducted according to the State Election Code, without the involvement of vendors like association lawyers and managers.
9. There will be a right to cumulative voting in elections - to ensure that minority perspectives have a chance to be heard.
10. An efficient, speedy, cost-effective and non judicial procedure to address violations of the Covenants, Restrictions by board members, lawyers and managers, and a meaningful penalty structure. Where fraud and concealment of information has taken place in homeowner associations, there should be no statute of limitations and there should be a minimum fine of $10,000 for each board member who participates in violating the Covenants, Restrictions and Conditions.
11. Term limits for board members should never be longer than one year.
12. Dues and assessments are to be used only for the purposes for which they were collected - and an adequate accounting and full disclosure to all owners to substantiate this. Owners, upon request, should be given monthly income and disbursement journals and minutes of association meetings.
13. There should be public bids for all jobs, and board members and any others in the decision-making process should give a complete disclosure of any and all personal financial interest. All confirmed vendor contracts should be available for inspection and copy to all owners. There should be significant penalties for violations of the above by board members, lawyers and managers. A minimum fine of $10,000 should be imposed.
14. If management companies are used, they must be licensed. Courses to obtain this license should be held at a public educational institution ( e.g. a community college).
Courses taken in a private institution may be vendor-biased, and involve conflict of interest. Management companies should be prohibited from accepting kickbacks and bribes from any and all vendors, including but not limited to lawyers, banks, insurance companies and landscape companies, or any repair company.
Management Companies should be prohibited from participating in the political affairs of the association Any management company that injects itself into the election process of a Homeowners Association to gain favorable treatment for their fees should be fined not less than $10,000.
15. Management companies should be bonded in favor of the homeowners.
16. Management companies should only manage. They should not be involved With the accounting - collecting homeowner fees, controlling bank accounts, signing checks (this should be done by an independent CPA hired for that specific purpose) or giving legal advice.
Managers should not be allowed to charge any legal costs or insurance costs to homeowners. The Homeowners Insurance policy is now covering the management companies giving them free insurance at the expense of the homeowner.
17. Audits should be rigorous and in depth. Current audits are generally perfunctory and meaningless.
18. Homeowners should have the right to vote on whether the association may file a lawsuit other than a Small Claims action. There should be limits set on lawyers fees for collections and suits against homeowners for Injunctions, etc.
19. Small Claims court should be used to collect delinquent assessments.
20. Reserves and all other association resources should not be used for legal fees and without an express vote of the homeowners.
21. The provision which allows the winner in a suit to claim legal fees should be abolished. This provision encourages suits by boards. If the board sues and loses, board members do not suffer personally. They simply pay the legal fees and costs from the dues of the membership. If a member sues the board and wins, the insurance company pays all the legal fees and costs, and charges the homeowners higher premiums. The homeowner, not only is exposed to significant financial risk, but also funds the suit against him/herself.
22. All association lawsuits (not individual homeowner suits), along with expenditures and settlements should be recorded in the county records along with the Covenants, Conditions and Restrictions..
23. Directors for Master Associations must be elected by vote of all the homeowners - not, as currently, by vote of the directors of the sub-associations and should have no power to assess any homeowner because homeowners pay twice for alleged services. Each sub-association should be able to withdraw from the master association at any time.
24. The control of boards of directors should be limited to common areas only.
25. Board oversight of associations which contain single family homes should be confined to the common area only.
26. Homeowners living in association should be relieved of the double taxation burden to which they are currently subjected and where there is a master association, the triple taxation.
27. As buying a home in an association today is really buying a share in a corporation, those involved in selling these homes as a business should be required to have a stockbroker's license, and be subject to all the stockbroker disclosure laws.
28. There should be government oversight of Common Interest Developments (homeowners associations ) an agency to address homeowner concerns and complaints. This should be an elected position funded by homeowners who live in associations.
Appointed positions have become political pay back deals for politicians. Trial lawyers, and lawyers who specialize in representing homeowners association, who create havoc suing homeowners, bankrupting homeowner associations, and snatching homes from vulnerable defenseless homeowners, have been controlling the legislation that would accomplish creating such a position for decades.
29.State laws are critical to the life of homeowner associations and each and every homeowner, each homeowner should be provided with a copy of the state law long with their Covenants and provided with updated versions on an annual basis if there have been changes in the prior year.
30. As public utilities are required to notify their customers of upcoming changes in the rates and regulations, so homeowners should be notified of similar upcoming changes in the State Laws of Georgia or assessments.
These principles are for your consideration and I hope they will be of some help in your consideration of the issues of Lakeview Homes Association, Inc., and Martin's Landing Foundation, Inc., and that you will become an activist for the protection and preservation of your property rights and values and those of your neighbors.
Related link
Georgia Homeowners News |
|
| |
|
View Comments (7) | Post a comment |
| |
|
|
|
|
|
|
|
|
|
