Homeowners Voice Serious Concerns

December 10, 2006

By John Enright
Copyright © AHRC News Services

All societies need a system to resolve disputes among its members, whether it be the chief sitting in the circle of his braves, or the judge sitting in a modern day courthouse.

Central to all systems of justice is the one who resolves a dispute, the chief or the judge. Clearly, a great burden is placed on their shoulders. Often they are required to plumb the depths of wisdom and justice in the most intractable of disputes.

Recognizing this, citizens grant judges great powers. Judges can put people to death, confine them behind bars for life, fine them, dismantle giant corporations, humble the mightiest.

Citizens know that their judges must be of the highest integrity and the most sterling of characters. While citizens realize that nobody is perfect, they also recognize that if a justice system is to work with any degree of success, its judges must be free of corruption, and imbued with the highest of values.

These values must endure even if the situations facing judges change from generation to generation. For example, when the first oil cases began to percolate into the courts in the latter part of the 19th. century, the law had to reach into itself to find the proper guiding principles to resolve those disputes. Likewise in more recent history, when the first computer cases surfaced and judges did not know the difference between a hard drive and a floppy disk, the law had to wrestle with the new challenges that the computer age brought.

In the last 20 years, courts have had to deal with a new situation - the disputes that homeowner associations have thrown up. As 55 million Americans now live in homeowner associations, these disputes have increased exponentially. How are the courts, in general, handling these cases? This article will explore some cases in California. They reveal a disquieting trend - an anti-homeowner stance that is as surprising as it is disturbing.

The tone was both set and exemplified in the Nahrstedt decision by the California Supreme Court in 1994. Ms. Nahrstedt was a lady who lived in a condominium in a homeowner association on the West side of Los Angeles. She had three cats which she kept inside her home and that never bothered anybody. Nevertheless, as the homeowner association had a rule against pets, it pressed her to get rid of the cats. Ms. Nahrstedt did not want to do that. Hence, the homeowner association (Lakeside Village Condominium Association) sued her.

The majority of the court ruled against her. But there was a dissenting opinion by Justice Arabian. He began by quoting Albert Schweitzer: "There are two means of refuge from the misery of life: music and cats." He then went on to chide his colleagues that their view of the law eschewed "the human spirit in favor of arbitrary efficiency". Quoting a Spanish proverb, he said this case illustrated the conventional wisdom and fundamental truth that "it is better to be a mouse in a cat's mouth than a man in a lawyer's hands".

Homeowners over the years have sought to understand both why a homeowner association would want to deny a lady the simple pleasures of her 3 cats, and why the highest court in the State of California would agree with them. Why?

While it is difficult at the best of times to plumb a person's mind, it becomes even more daunting when it is the mind of somebody at the center of innumerable conflicts, such as a supreme court justice. But a cool, dispassionate reading of the case leaves one with at least one conclusion. The justices who voted against Natore Nahrstedt and her cats lacked a fundamental value, namely the importance of a person's home and what it stands for.

A person's home is not simply four walls and a roof. A person's home is where he or she lives and has their being. It is their home - not anybody elses - and when they shut the door, they can keep out the entire world if they want. It is the place of their most tender moments, the place where they can be with those who are closest to them. In short, it is a spiritual place in the broadest sense of that term.

When the Lakeside Village Condominium Association sought to attack the solace that the three cats brought to Natore Nahrstedt, it was attacking the very heart of what she regarded as her home. The cats bothered nobody. They brought Natore great joy.

So, she fought back.

The Court of Appeal agreed with her. But a coalition of CAI lawyers, fearful that their domain was threatened, filed an appeal with the California Supreme Court. Except for Justice Arabian, all of the justices overturned the decision by the Court of Appeal. Their decision speaks volumes.

One of the fundamental questions to be asked about this decision is the mindset of those justices. The full answer to this question is obviously long and complicated, but its essence can be summarized here.

As a society, the United States speaks a lot about freedom and liberty. We are the land of the free. But in the last 100 years, this has more and more come to mean freedom for a few to dominate the many. In the economic sphere, there are fewer and fewer companies owning more and more. For example, in 1982 a federal judge broke up the monopoly of AT&T by splitting it into a number of Baby Bells - Pacific Bell, Southern Bell etc. Now, a little more than 20 years later, the Baby Bells have gobbled each other up. Southern Bell is now trying to buy AT&T. In the airlines, the media and a host of other industries, the trend is all the same - consolidation, control, concentration.

A similar trend has taken place in housing.

After World War II, the combination of a booming economy, the return of GIs intent on starting families, and the commodification of housing, all coalesced into the birth of homeowner associations as a way to house the nation's citizens. Previously, they had largely been the preserve of the rich. Now, home builders realized that the application of mass production methods to building homes was far more profitable than building one home at a time.

As most of these developments took place either in the suburbs or beyond, builders realized that they needed to provide recreational facilities to attract buyers. This then necessitated an organizational mechanism to run them after the developer left. Thus was the homeowner association born.

Simultaneously, a small group of lawyers saw that there was money to be made in this new form of housing. They realized that the more regulations there were, the more homeowners might break them. This meant that their cash registers would ring more frequently with the fines and legal fees. Thus, these lawyers set out to convince state legislatures to structure homeowner associations with a myriad of restrictions - all without the knowledge of homeowners. The granddaddy of them all was non-judicial foreclosure for unpaid assessments. A homeowner could lose his/her home in a matter of months for unpaid assessments. Not even state governments had such an awesome power, let alone credit card companies. Some lawyers also realized that they could purchase foreclosed property for a song, and pocket a lot of extra money in the process.

It is against this background (and a lot more that space does not allow here)that the Nahrstedt decision has to be understood. By and large, the justices on the California Supreme Court are Company people. They do not get there by being fierce champions of justice. They may have to rule between competing factions of the Company, but when it comes to a contest between the Company and the individual citizen, they will always rule for the Company.

Who is the Company? In short, it is the vast array of powerful economic interests that engulf our lives. The jingles of their commercials invade our subconscious. For example, what name do we associate with salt? And what is the image that automatically comes to mind when we think of that company? Hint - a little girl with an umbrella.

Housing joined that company after World War II. The large home-building companies bought vast tracts of land, and saturated them to maximum density with cookie-cutter type homes, where conformity and acquiescence to authority became the 11th. commandment. Rules and regulations invade a person's privacy and autonomy far more than any traditional government. Yes, homeowner associations are another layer of government, and they constrict the arterial life-blood of a citizen far more than the government of old.

Totally absent from this view of a home is the notion that a family's home is their castle - that a home is a very special place that nurtures the lives of citizens,and that society should interfere in this only as an ultimate last resort of dire necessity. Instead, the Company frame of mind is to treat a citizen as a kleenex - use them and throw them away if necessary, after they have purchased all your goods and services. The life of each citizen is not held sacred. They are simply consumers, and once they cease to be that, they are of no value to the Company.

It is this mentality that lies behind the decision of the California Supreme Court against Natore Nahrstedt. Her cats bothered no one. They were inside her home. They suffused her life with pleasure and happiness.

But the CAI lawyers knew that any lessening of the number of restrictions in a homeowner association meant a lessening of the money that they could earn for infractions of those restrictions. This "revolt" had to be squashed. And their allies on the California Supreme Court rallied to their aid. After all, that is what is expected of fellow members of the Company.

This attitude percolates down to the lower level of the judiciary. Time and again with great puzzlement, homeowners have complained that judges are anti-homeowner. Homeowner,William Tezak, was shocked when Judge Glass of the Orange County Superior Court decimated his case before trial with his rulings, effectively guaranteeing that he would lose. Judge Brooks of the same court was openly contemptuous of homeowners in another case - to such an extent that he was publicly reprimanded recently by the Commission on Judicial Performance. Other homeowners have reported similar treatment by Judge Hunt of the same court.

In Riverside County, judges forced seniors - some in their 80's and 90's - to pay dues to a golf club - even though many of them could not even swing a golf club.

The list is endless. Is there a solution?

There is certainly no easy solution. As the Company in essence appoints those who are loyal to its mindset to positions of power in a society, reform will not come from the Company.

But there are institutions in a society that could contain the seeds of genuine reform. While many of these have been co-opted in whole or in part by the Company, nevertheless the seed of hope is not completely wiped out. These are our religious and educational institutions. Some of them still contain a glimmer of a better vision of a world without violence, of a world where each citizen is treated with respect and dignity, where the economic imperatives of large corporations are not the most important thing on the planet.

The task of course is formidable. However, to think it is impossible is to guarantee failure. And the Company would like you to think that it is impossible.

But the British told Gandhi the same thing. However, without gun or bullet, he proved them wrong - and they even left as friends.

The struggle for the dignity of homeowners presents an awesome challenge. Yet, the power of truth tenaciously held will never die. The Company will try a frontal assault on it, and it will also employ more insidious ways to erode it and chip away at it.

But if homeowners hold steadfast, and at every opportunity, spread the vision, not even the mightiest cliff can withstand the waves that eat away at it.

Christmas is a good reminder of this truth. A tiny child triumphed over the might of a Herod and the Roman Empire. We need another Christmas.