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An Article
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Legislative Property Theft
Codifying Illegal Case Precedence
March 30, 2007
By
Taffy Rice
(View author info)
Copyright Taffy Rice
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I think it is safe to say that this is no longer a threat in Georgia for this session. Check out www.gabills.com. That site shows that SB 217 was not among the bills passed by the Senate. Crossover Day has passed, which is the day after which bills are not considered unless they have passed either the Senate or Houes. This is not to say to let your guard down. Beware the "Stealth Legislative Session," which is my name for the rush immediately preceding the end of the legislative session during which much monkeybusiness is transacted. This could still be attached to some unrelated bill.
There are other bills in the Georgia General Assembly about which to be concerned. SB267 has to do with the Georgia Condominium Act. Not being a lawyer, I don't understand the bill or what it does.
Of particular concern is SB173 which has to do with pipeline companies and eminent domain, another special interest land grab bill which deserves defeat. Also of interest is SB87, the Georgia Township Act. What is the need to start yet another kind of local government? The good news about SB87 is that it requires a constitutional amendment. We have a chance to research and find out what other states experience with townships is. If it is just another type of HOA, we can vote it down.
Posted Apr 3 2007 2:30AM CEST
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Rick Black
(View Profile)
Marietta, Georgia |
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And as a postscript to the above,
The biggest problem with this, and you are correct in that it appears to me it may have been CAI and attorney initiated, is that in communities where there are lots with covenants, yet Association membership is voluntary and rather loosely formulated (three or four owner/volunteers creating 'an Association') 'made up' corporate authority to sue a 'neighbor' property owner carrying more weight with the court in the guise of 'legitimacy.'
The way this is written gives too much play to be abused by the legal profession for any and all reasons, although again to the legislators it most likely appears an attempt to innocently give standing to the "Association" as a 'consensual' entity, save court time and taxpayer money with the 'res judicata' provisions allowing only one entity, the Association or owner to bring an action and also protect another owner from being sued repeatedly over the same issue from either the Association or a present or future owner (maybe over a storage shed and inch or two over fence height or something ridiculously along those lines).
The cities and developers created these unconstitutional entities unchecked, and it is up to the states to stop, not continue encouraging legislation of this caliber so poorly written to continue, rather reversing what has transpired when they took their eyes off the Constitution while jingling the cash the lobbyists were throwing at them all these years, starting with banning any new ones altogether rather than given them more legitimacy than those 'corporate' and mandatory ones already have.
Posted Apr 1 2007 12:25AM CEST
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Linda Gehring
Phoenix, Arizona |
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Taffy,
I read the proposed 'Act' and it appears to me what it is attempting to do is as follows:
1. Give authority to the Association as a legal corporate 'entity' to sue - this power in most documents is already given and the Board(s) the authority to sue on the Association's behalf (since the 'covenants' are viewed as 'contracts'). It is, however, attempting to minimize individuals rights to sue either individually, or as a group of owners, and bringing the action as 'the Association." In essence, it is in some instances given the Board the sole power to act on the 'corporate' or Association's behalf, not the owners.
2. If such a suit is brought by the Association against any owner or entity, 'res judicata' means that the decision in that action is binding and no individual owner now or in the future can sue over the same 'breach.' In other words, if the Board agrees to sue a member or entity using the Association's funds on the plea or request of one owner or number of owners against someone or something (or even upon 'advice of counsel'), whatever judgment or decision is made is final. In most states in the documents, 'enforcement' actions are authorized by EITHER the Association OR owners with the possibility that the same action could be brought twice - once by the Association, and then again by an owner or owners. What Georgia is doing is trying to limit litigation over an issue to a 'one time' deal in order to save court time, etc. leaving it to members and Board to determine whether the action will be brought and paid for by the corporate entity (the Association) or individually.
In actuality, that appears what they are trying to do; however, I can see how with the wording the way it is it can be misinterpreted very easily, and also give more authority and credence to Association brought actions than individual actions. It does, however, somewhat protect the Associations from a member attempting to get the Association to pick up the legal costs for their own individual suits; however, it could and should be written since most language in CC&Rs limit assessment monies being used for anything other than common area expenses and direct benefits for the majority of the members, that any such actions brought in the Association's name need be sanctioned or authorized by a majority of the Association members before Association funds can be utilized for this purpose, other than 'routine' collection suits for delinquent dues assessments. Mine were written that way, and since this is 'public' monies that will be used in any suit, it should require membership approval rather than just Board approval - which also protects the Association accounts from disreputable Boards, management companies and HOA attorneys using member dues and funds for their own purposes (either personal arguments or profit).
Anyway, that is the way I am reading it, but again it is not very concisely or clearly written.
Posted Mar 31 2007 11:36PM CEST
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Linda Gehring
Phoenix, Arizona |
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Taffy and Andy are outstanding! Praise God for their wisdom, knowledge and abilities. To them, and all, I suggest everyone read Ezekiel: 34.
Posted Mar 31 2007 11:17PM CEST
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Username withheld
, Pennsylvania |
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At their core, these are all federal issues. And it appears the 'anger' that is going on in the country right now is that many people are finally waking up and realizing that instead of the Constitutional Republic the founding fathers created, we now live in a country resembling more and more socialism or communism, and the 'party' that is in charge are the politicians and lawyers (no matter which political party they claim to represent). Instead of one election every year on the first Tuesday in November, we now have general and 'mail in' ballot elections not generally well-publicized and tallied by computers or ballots left in 'back rooms' until they are counted.
The Bar Association many years ago elected itself as the authority on each branch of government (when this "Association" came into power - and has been increasing its powers through writing the 'laws' for this country ever since). Laws were not supposed to be easy to pass, that is why in the Constitution it takes a 2/3rds majority and a 'checks and balances' in order to pass them. But look how many hundreds of bills are passed each and every session in every state across the nation, not to mention at the fedeal level. More laws, mean more work for the attorneys and guarantees them job security. "Counsel" in trials was restricted to criminal matters. The Constitution was written so that the average citizen could understand it, and that is 'the law of the land.' There is strict provision in the Constitution that EVERY judge, no matter at what level, is 'contractually bound' to abide by it. State laws do not take precedence, the U.S. Constitution does.
It is also interesting to note how the cities have attempted to become their own 'government' without state or federal regulation. By and large, they aren't even 'government,' but municipal corporations with no inherent 'taxing' authority (as the states were not inherently given 'taxing' authority, only the federal government).
Instead of freedome and liberty, we now have layer upon layer of government - not what the founding fathers had in mind at all. And with the exception of federal and state which is the 'true' government created under the Constitution, the cities and counties are just another 'corporate' structure.
Lawyers only make a living when there is conflict, and they know the game because they made the rules, using the federal and state governments in order to do so. Even the president relies on legal advice when the originating document is not all that hard to understand, and it was by and large created by statesmen, not lawyers.
It has been, however, only the past 40-50 years when the Constitution has been so blatantly violated time and time again. And this last 20 more so than ever. It was created to protect individual freedoms, not corporate freedoms with 'majority rules, minority rights,' but the way things are going, these developments are the only new form of housing cities are approving so within the next generation or so, there will be no 'choice' or freedom - all property ownership will be 'corporately' owned.
Freedom of speech, freedom of (not from) religion, right to life and property rights are all under attack at an unprecedented level. There has been a bill introduced in Congress right now attempting to 'fine' individual citizens who publish or speak their positions over any form of media $200,000 per occurrence as 'lobbyists' - even grass roots organizations.
Until 'politics' is removed from 'government' and there is significant campaign and judicial reforms made in this country, the pledge of allegiance is now being uttered by millions of school children to a country founded on principles that are disappearing before their eyes.
Posted Mar 31 2007 10:49PM CEST
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Linda Gehring
Phoenix, Arizona |
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Return to 'Legislative Property Theft' |
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