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An Article
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Reclaiming Constitutional Rights in America's Homeowners Associations
40 calls to 40 voters urging them to call 40 more
August 16, 2006
By
Willowdean Vance
(View author info)
Copyright Willowdean Vance
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Enforcement of the law is not regulation.
I somehow feel that my message is not understood by the post as a reply to mine. This is a big message to be understood. There is substantial legislation from the states regarding HOA's . Why make laws without enforcing them? These laws were designed to protect the membership from abuses, so why not enforce them? The executive branch of the government is responsible for enforcing the legislation, so why don't they? It is the responsibility of the State's Attorney General to enforce the laws by bringing the board of directors into court with criminal action when they break the laws. Why don't they do it? This is the core problem.
Don't bring up secondary issues like the "industries that feed off of the Associations" until the core problem is solved. The prior poster does not understand that there are people that should be fined in Associations like the people that continue to walk the dogs that never cleaning up the waste of the dogs or people that who know better use the guest parking for themselves, for their convenience, thereby eliminating all of the parking for real guests. Freedom as we know it is freedom within the law. Freedom abused becomes freedoms lost.
Oh, and one other thing. The property can and will be taken from owners (by the government) who refuse to pay the taxes.
I was a treasurer for five terms in my association and the most unpopular one because I raised the dues. I did so because we could not pay the bills and there was no way to cut expenses. Although inflation had raised the costs of the association over several years, no former board had the courage to raise the association monthly dues because they did not want to become unpopular by doing the right thing.Doing the right thing is not always the popular thing.
Posted Aug 19 2006 5:26PM CEST
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Mary Smith
, California |
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I recently sent a letter to our State's Attorney General looking for an opinion on the constitutionality of the State's Condominium Act. The reply was that the State's Attorney General's Office could only give opinion to State governmental agencies or entities. Therefore, they could not give me an opinion and suggested I seek an attorney's advice.
It is interesting to me that the Attorney General's Office could not comment on the lack of due process in a situation between some of our Unit Owners and our Condominium Association. Of course, many of us are not in a position to hire an attorney. In an "emergency meeting" recently called by our Association Board, they brought in a real estate attorney to make the point they could create rules for the Association. Despite my asking and getting confirmed by this attorney that we could modify the current condominium documents to include a more community-friendly process to discuss disagreements on rules established or to address issues as they arise, none of that information was conveyed in the "summary" of that meeting. The points summarized merely emphasized that the Board was within "their rights" to make rules, some of which we found contradictory or not in our best interests.
Many of the Unit Owners are single mothers who have no ability to hire an attorney to fight the fact the current Act is unconstitutional in relation to due process. So, we end up feeling discouraged and frustrated. With only 14 units in our building, we are only 2 units over a "small condominium" complex defined under our State law. In the section relating to small condominiums, the process is there and clear. All Unit Owners must vote unanimously for anything to pass. The process seems to give equal voice to all members, versus the current format that give voice primarily to the Association Board.
It seems to be there ought to be a process for compromise regardless of how large a condominium association is. The State Bar here indicates that the Condominium Act was really written for the development, sale and purchase of Condominiums, not for the Unit Owners. Therefore, it appears to have set up the problem of no due process for Unit Owners. However, I think it would take clear legal opinion to make all States include language related to due process in the Condomonium Acts.
Otherwise, we will continue to feel frustrated and that we have no voice.
Posted Aug 18 2006 7:32PM CEST
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Patricia Ellis
(View Profile)
Menomonee Falls, Wisconsin |
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With respect to comment #1, since a great deal of this situation is government contrived, there does need to be a governmental solution to this problem, but do not feel the "regulation" needs to be with the Association Boards, but the "industries" feeding off these communities.
"Taxes" for maintenance of the common area property maintenance is one thing, turning non-profit organizations into "for profit" entities, or worse, protecting through enacted statutes, the for-profit 'professionals' without oversight, or in not requiring that per federal administrative law, that developers also kick in funds for this 'mass produced' housing based on percentage of assessed valuation, and banning 'unconstitutional' provisions in them (and I believe any foreclosure measure afforded is cruel and unusual punishment for any sums less than at least a mortgage payment, and definitely should require 'maximums' on attorney fee awards given for their 'collection' activities.
Foreclosure has become big business in the southwest and Sunbelt states, and barring blatant, willful and excessive defaults in these sums, the way credit reporting is today and the fact that much legislation has gone into getting these defaults reported before any transfer of property ownership, the owner cannot 'run' from the obligation when he is right down the street, or sell all sums, even with a 'cash' sale, if there is a mortgage attached, need to go through title and escrow companies prior to being disbursed. The Association has a secured interest - this is not unsecured debt as with a credit card, so foreclosure should be mandated in all jurisidictions as a last resort, and as NON-PROFITS, also accountable to prove its accountings. Since there is so much at stake at the present time, someone's investment in their home, there needs to be much regulation of especially management concerns and attorneys which have been making large amounts for actions involving small sums, or accountability for their 'professional' breaches of duties, without the Associations or Boards who rely on their representations yet can profit considerably from their breach not held accountable.
Much more governmental involvement needs to be focused on these abuses and who is really profiting from these non-profits, and also the ability to 'fine' and/or 'penalize' removed - neighbors fining neighbors is a recipe for disaster, and their still are city ordinances for the 'major' infractions of any CC&R on record which might potential detract from owner property enjoyment, i.e., noise, junker cars, illegal parking, etc.
Whether your neighbor has a clothesline requires a reminder, not a fine - and if not corrected, do you really think your enjoyment is affected that it requires money to compensate, or that your property value or enhancement will be in any way affected upon sale of your own property?
Government overight is needed - but not strictly of Boards, but limits put on the 'power' these Boards have over the private property, not common areas, in these developments, or in monetarily being able to collect to punish homeowners for anything other than a failure to pay the contractual minimums, or 'mutually agreed' increases by vote of all the members, requiring them to live within a budget and justify the need for additional sums for the expenditures that are anticipated to be necessary.
And yes, the cities could take over road construction and even condomium repaving needed after an initial 'grace' period after construction - i.e., after five years the city takes over those 'normal' governmental services provided to those communities such as lighting, street repairs and resurfacing, etc., or else property tax credits should be given to offset those expenditures made by the private citizen under threat of losing their home. The city or county can't take away your home if you fail to pay 'taxes,' and neither should an Association unless there is an urgent need for those sums to make the maintenance bills, since the 'professionals' and most Boards err on the side of being conservative in fixing the annual maximums and no Association has gone bankrupt on record, while many owners have, the need for oversight is there, but on not only Boards, but any 'professional' acting in their stead.
Posted Aug 17 2006 9:54PM CEST
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Username withheld
Phoenix, Arizona |
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It's admirable that you wish the abuses to come to and end by eliminating the Homeowners Associations. For CID's in residential areas it might be possible but that is not where the majority of abuses originate. The condominium Homeowners Association presents a complex problem if we are to think about eliminating it. Who will assume the fiduciary responsibilities of the care-taking of the assets than belong to the common interest? Should we eliminate the Associations by turning them over to the local or state governments? That might be worse than than the present situation. The cure might be worse than the disease.
There is no other way right now to handle the maintenance of common interest assets other than the caretakers actions of the Association's directors. I suppose that the members could "throw the bums out" and elect new members to the board, but that usually doesn't happen. It does not happen because most of the membership doesn't care as long as they are not involved. The membership only cares to have the association dues as low as possible, thereby restricting what maintenance can be accomplished.
I can only speak from my own experience. In the history of my association of 28 years, we have never had a foreclosure by the board. The banks and lending institutions, however have foreclosed on delinquent loans within the association using non-judicial foreclosures. All foreclosures in California with or without homeowners associations are non-judicial. Judicial foreclosures are complex and can be redeemed within the first year by the old owner forcing out the new owner.
All other investments I can think of have oversight. We have it on the security markets, banks and lending institutions and every other kind of investment you can think of. Why not put the states in charge of oversight of the boards and enforce the statutes? This may not eliminate all of the abuses, but most of them.
The solution belongs to the government. What kind of stupid government would put up a speed limit sign on a highway and remove the police from enforcing it. The association is not the problem; the state government is the problem because they don't enforce the laws they make.
Posted Aug 17 2006 3:31PM CEST
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Mary Smith
, California |
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