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MaryA1
(Arizona)

Posts:2505

08/14/2008 9:29 PM
Posted By GeorgerwilliamsW on 08/14/2008 2:15 The legal profession tells us our homeowners association laws are out of date. The more I read here, the more I see that duplicating updating statutes from other states would only import the horrors and ills of homeowners associations. We can do better than that. George, Perhaps some state HOA laws are out of date; but the larger problem, as I see it, is that most states have no agency that oversees HOAs. Even in AZ we have the OAH, but they will only adjudicate cases where the HOA or the h/o has violated state law or the gov. docs. and that doesn't cover any and all of the problems encountered with HOAs. Enacting more laws, or updating the ones already on the books, will not always solve the problems.

VinceL
(California)

Posts:26

08/14/2008 10:29 PM
Mary & George, As I view HOAs, membership is limited to homeowners within the Community. Membership in the HOA follows title. The only way to become a member is by buying a home, and upon the sale of a home, the membership transfers from seller to buyer. There will never be more memberships than there are properties in the community. The governing documents constitute a private contract by and between the members. A breach of that contract by a member ought to be settled the way neighbors in non-association communities settle and have settled disputes from time immemorial. What exactly is the purpose of state laws in this context? Why is legislation ever needed? The only branch of government that might sometimes be required is judicial, and that branch should confine itself solely to the governing documents, and in that context only, render a verdict to resolve any dispute. If anything is out of date, it is the governing documents which all members signed, and these documents can be brought up-to-date or deleted altogether by a majority of those same members.

MaryA1
(Arizona)

Posts:2505

08/15/2008 7:00 AM
Vince, You asked: "Why is legislation ever needed?" Answer: To do away with the iniquities contained in the gov. docs. An assn's gov. docs. were put together by the developer and designed to protect his best interests with no regard for what is good -- or right -- for the homeowners. Even some state laws that are designed to protect the h/o do not apply as long as the developer is in control but will "eventually" provide that protection to the h/o. Yeah, the h/o's can amend; but we all know that is NOT an easy task. I have never come across a set of CCRs that can amended with only a majority vote of the members. Usually the % requirement is anywhere from 75% on up. There may be a state law somewhere that has reduced it to only a majority vote but I'm not aware of it. Can you quote only a majority vote requirement!

GeorgerwilliamsW
(Indiana)

Posts:771

08/15/2008 7:42 AM
Posted By MaryA1 on 08/14/2008 9:29 PM Perhaps some state HOA laws are out of date; but the larger problem, as I see it, is that most states have no agency that oversees HOAs. Even in AZ we have the OAH, but they will only adjudicate cases where the HOA or the h/o has violated state law or the gov. docs. and that doesn't cover any and all of the problems encountered with HOAs. Enacting more laws, or updating the ones already on the books, will not always solve the problems. You are absolutely right, Mary. We need a process of administrative review and appeal outside the judicial system to bring balance between individual property rights and the common benefit.

GeorgerwilliamsW
(Indiana)

Posts:771

08/15/2008 7:45 AM
Vince, I kinda like your thinking, as I have noted before. Nevertheless, real estate is recognized in law and by public policy as a unique animal. For instance, all transactions need to be in writing. And, it is one of the few areas in which ownership is recorded and a matter of public record. And real estate is subject to specific taxes and zoning. Each piece of real estate is unique. Real estate transactions are a special branch of a more general contract law. The problem with the notion of applying rules of contracts to covenants is two-fold. First, it is a one-way deal. Purchasers at the time of sale are not able to negotiate different terms than those in the deed restrictions. Public policy and the court system has looked askance at such one-sided contracts. They have elements of monopolistic behavior. Second, real property is not like actively traded stocks and bonds. It does not have the same marketability. Becoming a member of a homeowners association is not of the same character as, say, becoming a member of a country club. One can easily resign from a country club without sacrificing one's abode. Or the club can kick a member out for cause without the member losing his house. Thus, it is contrary to public policy to suggest the notion that if you don't like something the homeowners association does, then move. The notion of a covenant community with a private, pseudo government is a grand, ongoing experiment in civics. There is much room for improvement. We are still learning. Sadly, education is costly.

VinceL
(California)

Posts:26

08/15/2008 10:36 AM
Mary & George, Thanks again for your responses. I think that state law applies itself to all properties subject to its jurisdiction. They ought to have no more control over homes in a private community as they have in non-HOA properties. The HOA is a private matter. It can be disbanded by the members. Not all HOAs are alike, nor should they. Would it be a good thing to have the state interfere in the negotiations between a potential buyer and seller, on matters like price? When signing on to governing documents, did we expect we were subordinating our rights to new, as yet unwritten state laws which regulate only properties in a HOA. It would be a disastrous to ptoperty rights as rent control, allegedly benefitting lower income tenants that eventually came to include Alistaire Cook and Ed Kotch.

KirkW1
(Texas)

Posts:1190

08/15/2008 11:40 AM
Vince, I think the lack of state laws is what gave rise to the HOA problems of today. The basic starting point is that without an HOA if my neighbor does something atrocious I can only do something if I can afford to file a lawsuit (personally). So in comes the HOA and it becomes a group effort. The next progression is why not have a reasonable fine instead of expensive court costs? And if all is done reasonably, this is also good. But that gives rise to who should pay if the fine fails, and the answer was in turn - the offending owner. Now we are in the position where the HOA has all the power because they wrote the documents to put all legal costs on the offending owners. Now a few people who feel frustrated and wronged by the world run for the Board. Probably seemed like decent folk at the time of first election. And they start out to clean up the neighborhood. And next thing you know you have people with power problems. I think associations should be required to have a number of disclosures on an annual basis: 1) How many units 2) How many fines are given 3) How many violations are reported 4) A generic breakdown of those violations This would allow for one to analyze the information quickly. If I am looking for a home and see that HOA A has 200 fines last year for 500 homes I know that 40% of them paid a fine. And if this is centralized I can compare that to HOA B with 5 fines for 500 homes. With work you could do a reasonable comparison. The same has been done for crime statistics. This would also allow one to quickly locate where HOAs exist and don't. And they can compare properties and see what comes for the cost of the HOA. A big light would do wonders for the current situation. Part of the problem is that we don't know how big the problem is. We know some HOAs have problems. But we don't know how many don't. And we don't know how many do, but nobody realizes such.

DonnaS
(Tennessee)

Posts:2951

08/15/2008 11:59 AM
Very, very well said Kirk, The thousands and thousands of HOAs where you never read about nor hear about horror storys do exist. I am going to stick my neck out and state that the reason that we don't hear about them is that #1, Folks living there are happy with the way things are run, #2, there are little to no owners who want to follow the beat of their own drum rather than follow the association documents. #3 are used to living in HOA settings and go along with the process. So, what we have as for the processes of this type of living actually is working. States only mandate laws and statutes because they were forced to do so because of reason #2. Florida has had workshops and town hall meetings for years with Board members, association managers, association lawyers and legislaters who try to respond to the needs of those who represent HOAs. I'll bet good money that there was no politician sitting somewhere who said--"lets write some laws just to peeve off some guy down in a HOA" The Federal Government has NOT gotten involved in this and lets keep it that way.

VinceL
(California)

Posts:26

08/15/2008 12:44 PM
Posted By KirkW1 on 08/15/2008 11:40 AM Vince, (1) "lack of state laws is what gave rise to the HOA problems" (2)"if my neighbor does something atrocious I can only ...file a lawsuit" (3) "HOA and it becomes a group effort. (4) "who should pay if the fine fails...the offending owner". "HOA has all the power...to put all legal costs on the offending owners". (6) "Now a few people...run for the Board...decent folk at the time of first election...next thing you know you have people with power problems". (7) "A big light would do wonders for the current situation...we don't know how big the problem is...HOAs have problems...we don't know how many don't...And...how many do, but nobody realizes such. Kirk, Hope no meaning or context is changed by my selection of your quotes. #1 I completely disagree. #2 & #3 Nobody should have their grievance against a neighbor financed by HOA. That causes intimidation by HOA. #4 & #5 seem to say that if an owner is improperly fined, HOA still has the power to make him pay the fine. #6 makes my point better that I could. #7 makes my point better still - you call it a big bright light - I call it open meetings only

VinceL
(California)

Posts:26

08/15/2008 1:20 PM
By DonnaS on 08/15/2008 11:59 AM Very, very well said Kirk, (1)The thousands...of HOAs where you never read about nor hear about horror storys...(2)the reason... is...Folks living there are happy with the way things are run...(3)there are little to no owners who want to follow the beat of their own drum rather than follow the association documents...are used to living in HOA settings and (4) go along with the process. (5) So, what we have as for the processes of this type of living actually is working. (6)States only mandate laws and statutes because they were forced to do so...Florida has had workshops and town hall meetings for years with Board members, association managers, association lawyers and legislaters who try to respond to the (7)needs of those who represent HOAs...(8)no politician...who said--"lets write some laws just to peeve off some guy down in a HOA" The Federal Government has NOT gotten involved in this and lets keep it that way. Hi Donna, #1. I agree completely #2. There is no evidence that lack of complaints equates to happiness. Maybe they are too intimidated. #3. If you agree, as you seem to, that Assoc. Docs. govern, great. No need for state statutes. #4. An old Speaker Sam Rayburn exhortation to get along by going along. #5. Agree it's working, but how well is it working? #6. Who forces state legislatures to enact statutes that apply only to HOAs? #7. There should be no "needs of those who represent HOAs". #8. Politicians exist only to do some good to benefit themselves. They are way to smart to show their hand and reveal how they expect to get campaign funds from trial lawyers, association managers and HOA vendors on a quid pro quo basis. The guy who gets peeved off is, most likely, the guy whose quest for transperancy is getting too close to the real truth. #9. When enough states have enough statutes that are in conflict from state to state, the Federal Government will step up with a "uniform code"

GeorgerwilliamsW
(Indiana)

Posts:771

08/15/2008 1:28 PM
Oh, but the federal government has gotten into the act. We are all familiar with the FCC overriding covenants on antennas. And just this year the federal government prohibited some restrictions on flying the flag. The essential issue, I posit, comes down to the lack of adequate checks and balances which includes an appeals process.

DonnaS
(Tennessee)

Posts:2951

08/15/2008 1:39 PM
George, It's funny how we all perceive things differently, I do not see the FCC rules and flying of the flag as interference with HOA documents. These were not enacted as a direct or indirect reaction to any HOA issues. I see these and a few more Fed. laws as statements of ALL of our rights to information and expression, basically our given freedoms. When I stated that the Feds had not gotten involved in the running of HOAs, I mean that they do not legislate things like operations of the HOAs and that sort of thing. There lies the difference. So I still see no Federal action on HOAs

KirkW1
(Texas)

Posts:1190

08/15/2008 1:46 PM
Vince, Consider that in many states there are few if any laws. And the states that do have laws they are clearly written to stop what is seen as HOA abuse. Thus, it stands to reason that the lack of laws has given rise to the problems. As for the fines, I would support a system where the county (or city if they chose) would have a proceeding similar to traffic court. Both sides present their case. The loser pays the cost (less then $50). As for the HOA paying for a lawsuit, I don't have a problem with it. Outside of this, many places would have no reason for an HOA. We are all affected by our past. In my case I saw my father have to go to battle to stop a meat processing plant from going into our rural neighborhood. Fortunately for him the process was stopped at zoning. But the zoning board pointed out that covenants are a private contract and not enforceable by government. But he did get together several people to share the expense should the zoning change have gone trough. And thus, he formed a precursor to the HOA. Land rights are not a (and I feel should not) be absolute. Covenants are often the protector of land values. And covenant enforcement can be expensive. Why should one or two people have to shoulder the cost of a legal proceeding that many benefit from? The truth is that my HOA is what really keeps my neighbors from putting up a huge quonset hut that I am stuck looking at. Maybe it is intimidation. I don't see it that way. And at any rate, I am sure it is a lessor evil then the disregard for others that some people will promulgate. Without the threat, some people will move into a nice neighborhood and trash the place. I wish that were not true. But it is the reason HOAs became popular. To be sure I think much has to do with developers having larger and larger developments. But they want to protect their investment because a few people can drag down property values greatly. And thus they form the HOA to protect themselves while still building.

MaryA1
(Arizona)

Posts:2505

08/16/2008 2:36 PM
Posted By VinceL on 08/15/2008 1:20 PM By DonnaS on 08/15/2008 11:59 AM #9. When enough states have enough statutes that are in conflict from state to state, the Federal Government will step up with a "uniform code" Vince, There IS a "uniform code"; it's called the Uniform Common Interest Ownership Act (UCIOA) and has been adopted by a number of states. It was developed by the National Conference of Commissioners on Uniform State Laws -- NOT mandated by the Fed. Gov't. It's purpose was to adopt a uniform act for the formation, management and termination of any common interest community, including condos, planned communities and co-ops. It was compelted in 1982 and amended in 1984. Only about 6 or 7 states have adopted it. "The National Conference of Commissioners on Uniform State Laws (NCCUSL) is a non-profit, unincorporated association in the United States that consists of commissioners appointed by each state and territory. The purpose of the association is to discuss and debate in which areas of law there should be uniformity among the states and to draft acts accordingly."

KirkW1
(Texas)

Posts:1190

08/17/2008 7:38 AM
P...I do not see the FCC rules and flying of the flag as interference with HOA documents. These were not enacted as a direct or indirect reaction to any HOA issues. ... Actually, the antenna preemption was re-written as a direct result of HOAs. The antenna preemption originally prevented cities from regulating antennas for TV reception. And at that the burden was often left to the person fighting regulations to show that they needed a bigger antenna then allowed. HOAs could do what they wanted. Then Congress told the FCC to improve the situation and by the way go as far as the rental world. And flag regulations were revisited by congress as a direct result of the well publicized case in FL. (Though they simply made it so you have a right to display the flag while allowing regulations on how it is displayed to remain.)

GeorgerwilliamsW
(Indiana)

Posts:771

08/17/2008 8:20 AM
Posted By MaryA1 on 08/16/2008 2:36 PM There IS a "uniform code"; it's called the Uniform Common Interest Ownership Act (UCIOA) and has been adopted by a number of states. It was developed by the National Conference of Commissioners on Uniform State Laws -- NOT mandated by the Fed. Gov't. It's purpose was to adopt a uniform act for the formation, management and termination of any common interest community, including condos, planned communities and co-ops. It was compelted in 1982 and amended in 1984. Only about 6 or 7 states have adopted it. One reason the UCIOA has not been more broadly adopted is that it is a one-sided law, giving far too much power to the association at the expense of individual property rights. Its advocates are lawyers and property managers who make their living by working for homeowners associations. Also the UCIOA seeks to subsume all common interest ownership schemes under a single act. It simply creates more problems than it solves. A homeowners association of single family homes with few common amenities has little in common with a Florida high rise condo with many part-time owners. It is a bad, very bad, approach to the issues. A better approach, but still deficient, is that proposed by the AARP. I doubt, however, that the federal government will get involved as Vince postulates. It is still very much a state issue. I am of the opinion to let many flowers bloom in the meadow. Let each state develop laws that work best for them.

MaryA1
(Arizona)

Posts:2505

08/17/2008 8:29 AM
Posted By GeorgerwilliamsW on 08/17/2008 8:20 AM A better approach, but still deficient, is that proposed by the AARP. George, What the AARP is proposing is only a bill of rights; IMO, no comparision to the breadth and depth of the UCIOA.

DonnaS
(Tennessee)

Posts:2951

08/17/2008 8:59 AM
The AARP proposal has some very good points but I feel a sense of it slanting towards retired people. How about the other half that are not old enough to feel the way this proposal slants? (I'm 65)

GeorgerwilliamsW
(Indiana)

Posts:771

08/17/2008 9:38 AM
Posted By MaryA1 on 08/17/2008 8:29 AM Posted By GeorgerwilliamsW on 08/17/2008 8:20 AM A better approach, but still deficient, is that proposed by the AARP. George, What the AARP is proposing is only a bill of rights; IMO, no comparision to the breadth and depth of the UCIOA. Yes, I understand. That is why I termed it an "approach," rather than draft statute.

GeorgerwilliamsW
(Indiana)

Posts:771

08/17/2008 9:41 AM
Posted By DonnaS on 08/17/2008 8:59 AM The AARP proposal has some very good points but I feel a sense of it slanting towards retired people. How about the other half that are not old enough to feel the way this proposal slants? (I'm 65) How does this proposal slant toward us ole folks, Donna? I don't see it at all. Can you be specific. This is important. I am meeting on Tuesday with the Indiana State Senator to discuss this.

DonnaS
(Tennessee)

Posts:2951

08/17/2008 1:01 PM
George, I spent some good time reading the proposal again and I now have it better in focus and it is basicically written generic. The only item that I felt was kind of foggy or vague was item #IV The sentence of-----"IV. The Right to Be Told of All Rules and Charges Homeowners shall be told—before buying—of the association’s broad powers, and the association may not exercise any power not clearly disclosed to the homeowner----"(if the power unreasonably interferes with homeownership.)" This is very unclear to me as to what it means " interferes with homeownership means." Have you ever looked at the Florida Statutes? Every item in this proposal is already in those Statutes. Once in a while, an item comes up that needs some clarification but basically, this is what Florida already uses. But we all know that Florida is way ahead of the HOA game because of the millions of people already living in this situation. The Statutes are not always the way they should be but at least they are addressed Good Luck with the Senator tomorrow.

RobertR1
(South Carolina)

Posts:2525

08/17/2008 1:31 PM
A question to all, Suppose we do get the states to adopt some kind of oversight Statute that requires action from the associations management. Actually nothing has changed in the nuts and bolts of running an organization, some will do good, some (most) will not care. So if the Charter can be formulated by the individual states, and a certain amount of differences would be allowed, what then? Looks like the formation of another government agency similar to what Florida has adopted. Now, grnated Florida and all states will be limping along enforecement wise because of funds, overwheling numbers and lack of organization, and special imterests. Just my opinion but money should not be a problem and individual cost would be minimal because of numbers of people, just like Flroida. So if Florida can be a model, and Florida suffers from the same apathy that all state associations suffer from, and your considered opinions can be jamed together to make a working document, how do you get the organization required distributed? Would it work better on a small scale, that is, oversight and enforcement by counties, or cities, or number of owners in an association?

VinceL
(California)

Posts:26

08/17/2008 4:51 PM
The following bulk email was received this afternoon: Asbestos Lawyers Asbestos Alert! You may be entitled to millions 5:42 PM 5KB Given the title they have selected for themselves would indicate that they know where they are going.

GeorgerwilliamsW
(Indiana)

Posts:771

08/18/2008 1:16 AM
"Have you ever looked at the Florida Statutes? Every item in this proposal is already in those Statutes. Once in a while, an item comes up that needs some clarification but basically, this is what Florida already uses. But we all know that Florida is way ahead of the HOA game because of the millions of people already living in this situation. The Statutes are not always the way they should be but at least they are addressed. Indeed, I have. Florida has taken major steps to address the actual and potential abuses of homeowners associations. What I see is a genuine effort to create a balance between property rights and the common interest. For Hoosiers, though, the Florida approach, as comprehensive as it is, is overkill. It goes way beyond what Hoosiers are comfortable with in terms of regulation. We don't have many high rise condos; few part-time owners; and few private, gated communities that are responsible for roads and utilities. It does point out the differences among the various states. What works in one state does not work elsewhere. One size does not fit all.

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