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Subject: Creating a Municipality or Utility to Govern HOAs
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LeilaniL
(California)

Posts:47


09/14/2016 1:00 PM  
This post is an offshoot of the thread: "Radically changing HOA governance" to specifically discuss the ideas presented by Fred O'Neal regarding transferring HOA governance to a municipality. Here is his post:

---
You are entirely correct, in my experience. I am a lawyer and I have been litigating AGAINST HOA's for 25 years now. I've made a lot of money off it. In particular, arrogant board members have made me a small fortune by throwing their weight around and trying to use the board's power to crush perceived 'troublemakers.'

If you're interested in where HOA's came from (they, basically, weren't around when I was young), there are two books by a lawyer-turned-professor, Evan McKenzie, which provide the history of the rise of HOA's - "Privatopia" and "Beyond Privatopia."

In my opinion (and though it would hurt my practice), all HOA's should go away once the developer has sold his last unit in the development and they should be replaced either by a governmental unit (e.g. Municipal Service Taxing Unit) or a regulated private utility company. A governmental unit levying and collecting a specially assessed tax on homeowners within the development will eliminate enforcement actions and lien foreclosures - and greatly cut down on attorney's fees and collection actions.

The current covenant enforcement aspect of an HOA should be handled by individual-against-individual lawsuits, i.e. a level playing field. That way there will be many fewer enforcement actions filed in the courthouse (and, then, only where there has been an egregious violation) and an elimination of the possibility of power-hungry or vindictive board members using other peoples' money to crush perceived 'troublemakers."

Frederic O'Neal, Esq.

---
LeilaniL
(California)

Posts:47


09/14/2016 1:08 PM  
Posted By LeilaniL on 09/14/2016 1:00 PM
... all HOA's should go away once the developer has sold his last unit in the development and they should be replaced either by a governmental unit (e.g. Municipal Service Taxing Unit) or a regulated private utility company. A governmental unit levying and collecting a specially assessed tax on homeowners within the development will eliminate enforcement actions and lien foreclosures - and greatly cut down on attorney's fees and collection actions.

The current covenant enforcement aspect of an HOA should be handled by individual-against-individual lawsuits, i.e. a level playing field. That way there will be many fewer enforcement actions filed in the courthouse (and, then, only where there has been an egregious violation) and an elimination of the possibility of power-hungry or vindictive board members using other peoples' money to crush perceived 'troublemakers."

Frederic O'Neal, Esq.

---




I have a few questions for the audience to weigh in on as to how this municipality idea would practically work:

1. How would levying a special tax eliminate lien foreclosures? People will still get behind. What happens to them?

2. Please give an example of a "current covenant enforcement aspect of an HOA" and how would individual-against individual lawsuits work in such an example?

3. Is such a municipality structure set up anywhere in the country or world?

4. Who would manage the maintenance of the complex and how do we safeguard contractor collusion and abuse (i.e., getting paid exhorbitant dollars and sharing the money with the municipality, etc.)?

Thank you,

FredO1
(Florida)

Posts:18


09/14/2016 1:31 PM  
Leilani:

You ask -

1. How would levying a special tax eliminate lien foreclosures? People will still get behind. What happens to them?

In Florida, Municipal Service Taxing Units (for example, we have one in our subdivision which is a "lighting district" - meaning, it provides the street lights in the subdivision, replaces burnt out bulbs, replaces broken street lamps, etc.) are run by the local County government. The County accounting office totals the operating cost of the district, divides it by the number of homes, then provides that number to the County Tax Assessor who adds the pro rata cost to each home's annual real estate tax bill. If you don't pay your taxes, a tax certificate is sold by the County Tax Collector. You have roughly three years to redeem the certificate. If you don't, your property can be sold by the tax collector at a public auction. If there is a mortgage on your home, the mortgage holder will also be notified of the pending sale and can redeem the certificate and avoid the sale.

2. Please give an example of a "current covenant enforcement aspect of an HOA" and how would individual-against individual lawsuits work in such an example?

I have a case which just came in the door yesterday. My client needs to replace the roof on her home. Her subdivision's covenants say that, if her house is "destroyed," she must restore it just as it is. The HOA reads that provision as encompassing replacing her roof because of its age and deteriorating condition. She currently has a tile roof. The HOA insists she must replace her existing tile roof with another tile roof. She wants to use shingles, instead (at a much lower cost). Right now, our suit over whether she must replace her tile roof with another tile roof would be with the HOA. If the HOA is removed from the equation, then she only has to worry about being sued by her neighbors (who, as I understand it, have no problem with her replacing her tile roof with a shingle roof). Net result - one less lawsuit clogging up the courthouse.

3. Is such a municipality structure set up anywhere in the country or world?

Throughout Florida, we have Municipal Service Taxing Units handling many of the tasks (e.g. lighting, maintaining landscaping, maintaining perimeter walls, maintaining private road systems, providing private security) an HOA would ordinarily handle.

4. Who would manage the maintenance of the complex and how do we safeguard contractor collusion and abuse (i.e., getting paid exhorbitant dollars and sharing the money with the municipality, etc.)?

Since the County operates the Municipal Service Taxing Unit, you have County Auditor, County Manager, County Commissioners, as well as law enforcement since collusion and abuse and kickbacks from contractors constitute crimes. If you have a recreation facility which you want to maintain as a private club, you may want to set up a separate corporation to own and operate that. If the County manages it, chances are the facility will end up being opened up to the public.

Fred O'Neal
KevinK7
(Florida)

Posts:1343


09/14/2016 1:34 PM  
The only problem I would see is that you would definitely see abuse regarding MSBUs or complaints for certain issues much like HOAs. I think I made a thread about this 7 years ago. In it I mentioned my neighborhood was involved in a conflict when technically a neighboring HOA decided they were the HOA for all surrounding subdivisions. Well, the board wanted to engage in some projects like building a brick wall or speed humps.

They held a vote and lost. So they went to the county and the county held a vote for a MSBU but the way the vote was calculated was less stringent and it only counted the affirmative votes of returned ballots so the board got approval with far less than a majority.

I will say other things would be better, like certain maintenance projects. The real savings might come from administration and efficiency increases.
TimB4
(Virginia)

Posts:16657


09/14/2016 1:45 PM  
Posted By FredO1 on 09/14/2016 1:31 PM


2. Please give an example of a "current covenant enforcement aspect of an HOA" and how would individual-against individual lawsuits work in such an example?

I have a case which just came in the door yesterday. My client needs to replace the roof on her home. Her subdivision's covenants say that, if her house is "destroyed," she must restore it just as it is. The HOA reads that provision as encompassing replacing her roof because of its age and deteriorating condition. She currently has a tile roof. The HOA insists she must replace her existing tile roof with another tile roof. She wants to use shingles, instead (at a much lower cost). Right now, our suit over whether she must replace her tile roof with another tile roof would be with the HOA. If the HOA is removed from the equation, then she only has to worry about being sued by her neighbors (who, as I understand it, have no problem with her replacing her tile roof with a shingle roof). Net result - one less lawsuit clogging up the courthouse.




So Fred, why do you think the Association is at fault?
They are simply enforcing the covenants, i.e. the contract that your client agreed to comply with when they purchased the property.
Doesn't you client bare some of the blame for wanting to violate the terms of the contract she entered into?

Regardless if the HOA exists or not, why is it ok for your client to violate the terms of the contract they agreed with?

Why would it be ok for the clients two or three neighbors, who have no issue with the roof, to make the decision for everyone (the Board isn't making the decision to waive or not to waive a covenant for a single individual, they are simply enforcing the covenants as written)?

Rather then take the issue through the courts, why didn't your client simply try to gather support (perhaps with the help of the neighbors) and amend the contract (covenants) to allow shingle roofs or tile roofs? That is an option the contract provides, is it not?


Perhaps, instead of spending money on attorneys (or are you taking the case hoping to have the court award attorney fees?), why doesn't the client and neighbors pool their money to purchase the tiles. Honestly, aren't the legal costs more then or equal to the difference between a tile roof and a shingle roof?
FredO1
(Florida)

Posts:18


09/14/2016 1:52 PM  
Kevin:

Hey, Kevin. You're right about potential problems involved in establishing a MSBU or MSTU. If there's a push to establish one in your community, you need to stay on top of it. You need to know the State laws and County Code provisions applicable to it. Like anything else, the process can be abused. Finally, because County Commissioners would be involved in its establishment (at least in Florida), there is a political aspect to be concerned about.

Fred
TimB4
(Virginia)

Posts:16657


09/14/2016 2:06 PM  
Posted By LeilaniL on 09/14/2016 1:08 PM

1. How would levying a special tax eliminate lien foreclosures? People will still get behind. What happens to them?




It wouldn't.
In fact, it may be worse as your neighbors (who make up the board) may have more compassion and understanding then a government employee who doesn't know you or live in your neighborhood (expecting that a government employee would be involved and it wouldn't simply be an automated process of filing liens and foreclosures).

It would then be a tax lien vs. an Association lien.
Tax liens have priority over all other liens.

Of course, this would vary between States, Counties and, perhaps, municipalities.



Posted By LeilaniL on 09/14/2016 1:08 PM

2. Please give an example of a "current covenant enforcement aspect of an HOA" and how would individual-against individual lawsuits work in such an example?




Depending on the covenants, an Association has the following options for enforcement:
1) Warning letters
2) Monetary penalties/charges (i.e. fines)
3) legal action through the courts.

Typically, for various reasons, letters and monetary charges (or the threat of monetary charges) have most violators bring the violation into compliance. When legal action is required, the costs for that action is shared by all members.


Individuals would not have the ability to impose monetary charges. They would only be able to confront the violator or take legal action. Since legal action is expensive, there would be less cases because it's rare that an individual wants to bare the costs themselves (even though the entire development would benefit).

This means that you will likely have more violators and the covenants everyone agreed to comply with would likely mean very little (again look at the neighborhoods without an HOA). Then, as is typical in life, as the owners age and available funds go to other things, the upkeep of the home may be neglected. A neglected home may have an impact on bringing potential buyers to a neighbor who wants to sell. Several neglected homes may have an impact on bringing potential buyers to any homes in the development. If there are less potential buyers, sellers may not be able to get the prices they are asking. IF this occurs, property values may be affected.



Posted By LeilaniL on 09/14/2016 1:08 PM

3. Is such a municipality structure set up anywhere in the country or world?




Probably. However, I can't give specifics except to say look at the neighborhoods with no HOAs.



Posted By LeilaniL on 09/14/2016 1:08 PM

4. Who would manage the maintenance of the complex and how do we safeguard contractor collusion and abuse (i.e., getting paid exhorbitant dollars and sharing the money with the municipality, etc.)?




For condominiums, it would be all owners acting on their own. Those who can afford and are willing to maintain the common elements would. Those who are not, would not.

For HOAs, the common elements could become individual clubs which those who wish to utilize the amenity would pay a fee for membership and maintenance. Those who do not would not. If there are not enough individuals from within the complex, the club may open it up to the general public or simply close the amenity.

For HOAs, the common land would be under control of the city/County. Perhaps creating public parks, etc. Maintenance would be at the City/County schedule.
FredO1
(Florida)

Posts:18


09/14/2016 2:10 PM  
Tim, Tim, Tim:

I doubt you and I would ever agree on anything. Thank God, there's still a public policy in this country favoring a property owner's free use of his or her own land, meaning all doubts in the wording of laws or contracts should be resolved in favor of a person being able to use his or her own land the way he or she wants to. Where the subdivision's covenants restrict my client's rights in the event her home is "destroyed," the question then becomes whether the effect of age and deterioration on a roof amounts to its "destruction." Because the provision does not clearly or expressly apply to a roof being replaced due to its age and deterioration (versus fire or a natural disaster), public policy leans in favor of an interpretation allowing her free use of her own land - meaning she should be able to put whatever type of roof she wants on her house (of course, within the bounds of county building codes).

Fred



JonD1


Posts:0


09/14/2016 2:16 PM  
Frederic

I just have to ask what will your fee be for resolving this roofing issue?

FredO1
(Florida)

Posts:18


09/14/2016 2:26 PM  
JonD:

I only take on cases I am pretty sure I will win and will be able to have my fees taxed against the HOA or its insurance company. So, in almost every case I've handled against an HOA, the net cost to my clients has been $0.00.

Fred
TimB4
(Virginia)

Posts:16657


09/14/2016 4:01 PM  
Fred, Fred, Fred (a little condescending isn't it?),

Actually, you would be surprised on the number of things we probably agree on.
The things we likely disagree with would be interesting debates (if one is willing to debate on the core of the issue along with providing basis for their opinions).


My question would be, because it's typical in the CC&Rs I've read (which have been quite a few), does the covenants of your clients Association require prior approval for changing the exterior of their home?

If they do, and your client failed to do this, they failed to comply with the terms of the contract as written.

If the do and your client requested approval, was denied and made the change anyway, they failed to comply with the terms of the contract as written.

If they do not, then I actually agree with you that your client should be allowed to replace the roof with any material that meets current building codes.

Realistically, the question I just posed will likely be the crux of any ruling.
TimB4
(Virginia)

Posts:16657


09/14/2016 4:02 PM  
Posted By FredO1 on 09/14/2016 2:26 PM
JonD:

I only take on cases I am pretty sure I will win and will be able to have my fees taxed against the HOA or its insurance company. So, in almost every case I've handled against an HOA, the net cost to my clients has been $0.00.

Fred





And would you take such cases if you were unable to be awarded reasonable attorney fees?
RichardP13


Posts:0


09/14/2016 4:18 PM  
Leilana

Not sure what you're looking to accomplish. I also find the advice from Fred troublesome.

Let's get Fed out of the way. There are roughly 360,000 legal, governing documents for all HOA's in the United States. No legislative action is going to get rid of that, period. HOA's exist today because of the shift AWAY from municipal service to HOA, and now you want to shift back. Ain't going to happen.

There are issues within HOA governance that need to be addressed. Take one instance. Couple of years ago California passed SB563 which dealt with Open Meetings. It was created for one reason and one reason alone, too many Boards were illegally taking "Action without a Meeting". This came directly from the authors of the bill. There were many complaints, on record, about abuse.

You have a lien on your property each and every time your Association bills your assessment. To enforce, it must be recorded. People do get behind, but the governing body of an HOA has a obligation to ALL it's owners to protect their interests. I have noticed people go over board when recording lien. I just had to have 4 liens removed for the same thing. No one kept track, while others made money on the process.

What I proposed is a solution or idea. Someone have a better idea, I am all ears.

We had an instance of a neighbor to neighbor dispute. Two neighbors living next door to one another hated each other. One neighbor put a hose through a fence and flooded the other's backyard without damaging ANY community property. The group of five blackmailed the Board, they hired a new MC and proceeded to start a lawsuit costing the Association $200K out of the operating account (no insurance). There was no vote on record and our CCRs explicitly state the Association CANNOT litigate any matter in which they know will cost over $2500.00 without the majority approval of the Members.

There are Ombudsmen set up in several states, but am not aware of exactly how they function.




TimB4
(Virginia)

Posts:16657


09/14/2016 4:26 PM  
Leilana,

I'd like to add to Richards comment (which is more realistic then Freds desire to eliminate HOAs).

Even in States that have ombudsman services, where those who believe their Association is acting improperly, the attorneys and statues don't give the ombudsman authority to rule. They may be able to arbitrate, but not simply look at the facts and rule one way or the other.
In my State, Virginia, the ombudsman won't even entertain alleged violations of governing documents, it must be a Statute (which the ombudsman has no legal authority to interpret).

This is why many on this site are against government involvement. They don't fix issues, they simply tend to muddy the waters which helps fund the legal industry.
JohnC46
(South Carolina)

Posts:9121


09/14/2016 5:30 PM  
Posted By FredO1 on 09/14/2016 2:10 PM
Tim, Tim, Tim:

I doubt you and I would ever agree on anything. Thank God, there's still a public policy in this country favoring a property owner's free use of his or her own land, meaning all doubts in the wording of laws or contracts should be resolved in favor of a person being able to use his or her own land the way he or she wants to. Where the subdivision's covenants restrict my client's rights in the event her home is "destroyed," the question then becomes whether the effect of age and deterioration on a roof amounts to its "destruction." Because the provision does not clearly or expressly apply to a roof being replaced due to its age and deterioration (versus fire or a natural disaster), public policy leans in favor of an interpretation allowing her free use of her own land - meaning she should be able to put whatever type of roof she wants on her house (of course, within the bounds of county building codes).

Fred






\Fred

I agree on a property owner's rights but if they willing signed some away (such as in an owners association), they willing signed them away. What are we going to do? Protect people from themselves?

In the case of the roof, the owner agreed to "meet community standards" when they "signed onto to being part of an association" thus, so be it. Meet the roof standards, get them changed, or get the he!! out.



JonD1


Posts:0


09/14/2016 5:48 PM  
It would appear Fred's ideal world would remove HOAs from existing and turn over governance to the local government, ill equipped to handle any additional workload or a private entity yet to be determined, arranged or brought to existence. My opinion the chance this might ever occur less than zero.

Now as to the roof case Fred has taken on. As we don't have copies of the documents difficult to determine what standards exist in the way of owner behavior as far as modifications and design requirements. Hopefully Fred will update us on his complaint and the outcome of his action.

Now as to Fred's explanation of costs. His suggestion there would be no cost to his client directly while true fails to consider any cost to the HOA would in part fall on his client. If the HOA pays out some amount the client pays or their funds are used to cover those costs. In the event insurance covers damages again that might result in increased premiums, cancellation of coverage. Both adding costs to the client individually. And of course every member of the community. As to that, there might also be a what I might refer to as a "social" cost on the client. At the conclusion of this matter not hard to imagine some consequences for the client in terms of push back from neighbors and the board. Funny how some people might react when you sue your community in an attempt to modify material standards everyone would prefer remained. But that would be the client's problem to bare. All good.

My guiding question is always "What is best for the community?" Suing your community over roofing material is NOT the answer that comes to my mind.
KevinK7
(Florida)

Posts:1343


09/14/2016 10:48 PM  
I think there are positives that could come from that form of governance. Some like HOAs while others do not. I am reminded of another instance regarding municipal taxing units where a local real estate agent wanted to impose a tax on thousands of homes to plant flowers and such... right in front of the neighborhoods where he owned or represented dozens of properties. His HOA's (which he was a board member of) surely could have foot the bill but he wanted to impose a tax on all the surrounding subdivisions. Many upset property owners went to the news and the local county commissioner and that taxing unit died pretty quickly. Had there been no vocal opposition I am sure it would have passed and while the amount may have been minimal, awareness is necessary. I suppose with MSBUs and MSTUs there is more oversight.

And as for buying into a neighborhood knowing about a HOA, I can agree, except for when that HOA decides to change the rules. My family purchased property in two neighborhoods specifically because there was no mandatory association minimal restrictions. In both situations a board decided to convert the neighborhoods to mandatory. The actions of my previous neighborhood's "HOA" caused the association to go bankrupt. Who knows what will happen with my current "HOA." Sadly there is no oversight.
KevinK7
(Florida)

Posts:1343


09/14/2016 10:51 PM  
Posted By JonD1 on 09/14/2016 5:48 PM
It would appear Fred's ideal world would remove HOAs from existing and turn over governance to the local government, ill equipped to handle any additional workload or a private entity yet to be determined, arranged or brought to existence. My opinion the chance this might ever occur less than zero.

Now as to the roof case Fred has taken on. As we don't have copies of the documents difficult to determine what standards exist in the way of owner behavior as far as modifications and design requirements. Hopefully Fred will update us on his complaint and the outcome of his action.

Now as to Fred's explanation of costs. His suggestion there would be no cost to his client directly while true fails to consider any cost to the HOA would in part fall on his client. If the HOA pays out some amount the client pays or their funds are used to cover those costs. In the event insurance covers damages again that might result in increased premiums, cancellation of coverage. Both adding costs to the client individually. And of course every member of the community. As to that, there might also be a what I might refer to as a "social" cost on the client. At the conclusion of this matter not hard to imagine some consequences for the client in terms of push back from neighbors and the board. Funny how some people might react when you sue your community in an attempt to modify material standards everyone would prefer remained. But that would be the client's problem to bare. All good.

My guiding question is always "What is best for the community?" Suing your community over roofing material is NOT the answer that comes to my mind.



I can think of it this way. Assuming that the declaration is pretty clear on what constitutes maintenance, repair, or replacement, is it worth it to the community to allow a property to go into disrepair or a homeowner to find themselves in a tremendous financial hardship because of a misinterpretation of a governing document?

What is best in that situation?
TimB4
(Virginia)

Posts:16657


09/15/2016 12:41 AM  
Posted By KevinK7 on 09/14/2016 10:51 PM

I can think of it this way. Assuming that the declaration is pretty clear on what constitutes maintenance, repair, or replacement, is it worth it to the community to allow a property to go into disrepair or a homeowner to find themselves in a tremendous financial hardship because of a misinterpretation of a governing document?

What is best in that situation?




Depends on one's perspective.

Expecting we are talking in generalities and not about the specific roofing issue Fred raised, if the covenants are clear, there should not be a misinterpretation.

If we are talking specifically about Freds roofing issue, then what is considered a repair, replacement, maintenance or rebuild really isn't the issue. As I pointed out earlier, it's more likely that it's an issue of was prior permission sought and received or not. Fred, in my opinion, simply found a way to interpret the language differently - thereby causing one side or the other to back down, a compromise to be reached or for the issue to go through the courts for a ruling on what the language says.

FredO1
(Florida)

Posts:18


09/15/2016 6:47 AM  
John, John, John:

"... or get the hell out."

That would be like me saying to you: If you like living in a commune-like setting so much, "get the hell out" of America and go live in some communist country like Cuba or North Korea.

For what it's worth, most people do not like HOA's nor do they like HOA directors. That is why, when suing an HOA, I ask for a jury trial. You'd be surprised to hear some of the stories potential jurors tell about their own bad experiences with HOA's.

Suggested reading: Professor Gary Solomon's "HOA Syndrome: A Stress Related Illness."

Short answer: The HOA system works only for those on the inside of the HOA. The rest of us try not to needlessly antagonize it, lest the wrath of the directors be directed at us. HOA's have to go as an institution. They have to be replaced. Maybe I don't have the right answer as to what should replace HOA's, but the discussion needs to continue until a right answer emerges.

Thanks, Leilani, for starting the discussion,

Fred
ND
(PA)

Posts:386


09/15/2016 8:00 AM  
Some interesting discussion here.

I'm definitely not an HOA advocate, and I've personally vowed to never live in one again, so I appreciate some of the info/discussion in these few related threads. However, I currently live in an HOA, am serving on the Board, and am trying to do the best and most appropriate things for my neighbors and myself.

All that said . . . it's interesting how two new users, FredO1 and LeilaniL, created and continue to respond to these topics patting each other on the back, asking questions of each other, promoting certain website, and promoting certain literature.

Hmmmmmm . . .
MarkM31


Posts:0


09/15/2016 9:09 AM  
Posted By FredO1 on 09/15/2016 6:47 AM
John, John, John:
.................................
Thanks, Leilani, for starting the discussion,

Fred




Fred, Fred Fred,

Why do I get the idea that there is some flacking and hacking going on here? I wonder what your ulterior motives are here, coming on on acting all condescending to everybody, while Leilani serves you up softballs.
MarkM31


Posts:0


09/15/2016 9:09 AM  
Posted By ND on 09/15/2016 8:00 AM


All that said . . . it's interesting how two new users, FredO1 and LeilaniL, created and continue to respond to these topics patting each other on the back, asking questions of each other, promoting certain website, and promoting certain literature.

Hmmmmmm . . .




Yuppers. You got that one.
FredO1
(Florida)

Posts:18


09/15/2016 10:53 AM  
Mark, Mark, Mark:

Sorry you (and others) don't like your names repeated three times.

In my business, there's an expression: If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither the facts nor the law are on your side, pound on the other side.

So, Mark (and others), feel free to pound away, insinuate away, find conspiracies under every rock away, but the FACT of the matter is that the HOA system is flawed and disliked by many, many homeowners. Our constitution is an amazing document in part because it creates a system of checks and balances to prevent any one branch of government from tyrannizing the people. Where are the checks and balances in the HOA system? If you get an entrenched board with a desire to lord it over the community, the only choices ordinary homeowners have is to keep quiet and put up with it as best they can or sell and "get the hell out."

A person's home used to be one's castle. Not so much any more. A bunch of would-be tyrants with too much time on their hands are putting an end to that.

Whether you like it or not, the HOA system is flawed. In my opinion, the system needs to be scrapped and replaced, not reformed.

So, there. Start pounding away some more.

Fred, Fred, Fred
JonD1


Posts:0


09/15/2016 4:17 PM  
Fred

As a general rule I like to operate in a world of what is possible. Not create some alternate universe in which my views and thoughts will somehow become reality when they simply can't.

The chances of you living to see the day HOAs are eliminated or exterminated or as you like to say "slayed" is less than zero. So I would like to save you the disappointment and let you know that fantasy just won't come to pass.

Might there be a need for reforms well of course. But that discussion is not even possible when your starting point is in reality not even an option.

Good luck with the roofing litigation. Let us know how that works out.
TimB4
(Virginia)

Posts:16657


09/15/2016 4:27 PM  
Freddy, Freddy, Freddy,

It seems that you prefer to attack others. When individuals try to engage you in the facts or the law you choose to either not respond or try to be condescending. Considering that you may have (perhaps on purpose) limited the ability for meaningful discussions due to fully identifying yourself and your website on your first posting, lets try and have a discussion on a more general level.

I would ask two questions:

1) Do you agree or disagree that individuals who enter into legal contracts should comply with the terms of the contracts?

2) (more on a personal level) out of the clients you represented against their Associations, how many (number or percentage) would have been resolved by settlement and how many actually went through the courts?
TimB4
(Virginia)

Posts:16657


09/15/2016 4:51 PM  
Leilani,

Trying to get the thread back on topic, one of the main things I notice where there are issues between HOAs and members is that the individual doesn't really know what they have gotten into. Realtors, don't take the time to explain the situation. I've not heard of classes being offered about Associations and what to look for when buying a home. Many States simply don't have legislation requiring that the seller or the Association (through the seller) provides information so a buyer (if they take the time) will be able to make an informed decision.

California and Florida have some of the most stringent laws on the books regarding HOAs. However, both California and Florida really give a buyer enough information to make an informed decision.

As in FL and CA, most States do not require copies of minutes be given to potential buyers (which allows the buyer to see what the issues are and how they are handled). Many States don't even require that a full copy of the governing documents be provided to the potential buyer. Many States don't provide actual financial statements (some simply require summaries and some don't require any at all).

I believe that if States enacted more disclosure laws (similar to Virginia, which also has room for improvement) there may be less issues like the case Fred describes.


Tim
IM1
(California)

Posts:44


09/15/2016 4:59 PM  

Disclosure

FredO1
(Florida)

Posts:18


09/15/2016 6:57 PM  
Tim and Jon:

Sorry about the condescending tone. Sorry to offend.

Have a nice life.

Fred
TimB4
(Virginia)

Posts:16657


09/15/2016 7:14 PM  
Posted By FredO1 on 09/15/2016 6:57 PM
Tim and Jon:

Sorry about the condescending tone. Sorry to offend.




Fred,

Thank you for that.

I think if you take the time you will see that those who regularly participate on this site do so with the intend of bettering the community within which we live. We may not do everything exactly right but are willing to acknowledge when it's done wrong and willing to learn how to do things the correct way.

Most of the regular posters first came to this site because they had issues within their Associations. Many, myself included, took the time to work within the confines of their governing documents and resolved the issue. They then were elected to positions on their Board or appointed to committees and do their best to correct the issue they saw and not to allow them to reoccur.

Although I agree with your perception posted on your site that many individuals serve on the Board because they have an agenda. I disagree with your opinion that the individuals who are drawn to serve do so for power. Many, as it has been discussed on this forum in the past, serve because of two reasons: 1) they are concerned that others who are serving will repeat the mistakes of the past. 2) Others are not willing to serve.

It has been often identified that if those who choose not to participate within their Association (and I define participation by doing the minimum - voting) banded together, they would have the voting power to amend the governing documents however they like - regardless of the views or opinions of those who volunteer to serve.

There are a lot of (what I call) anti-hoa sites on the web. This is one of the few sites that allow those who serve to discuss issues and learn from each other on how best to do the job few want to do and to resolve issues at the lowest level possible.

I do believe that your perspective can offer a lot on this site.


Tim
JonD1


Posts:0


09/15/2016 8:02 PM  
Posted By TimB4 on 09/15/2016 7:14 PM
Posted By FredO1 on 09/15/2016 6:57 PM
Tim and Jon:

Sorry about the condescending tone. Sorry to offend.




Fred,

Thank you for that.

I think if you take the time you will see that those who regularly participate on this site do so with the intend of bettering the community within which we live. We may not do everything exactly right but are willing to acknowledge when it's done wrong and willing to learn how to do things the correct way.

Most of the regular posters first came to this site because they had issues within their Associations. Many, myself included, took the time to work within the confines of their governing documents and resolved the issue. They then were elected to positions on their Board or appointed to committees and do their best to correct the issue they saw and not to allow them to reoccur.

Although I agree with your perception posted on your site that many individuals serve on the Board because they have an agenda. I disagree with your opinion that the individuals who are drawn to serve do so for power. Many, as it has been discussed on this forum in the past, serve because of two reasons: 1) they are concerned that others who are serving will repeat the mistakes of the past. 2) Others are not willing to serve.

It has been often identified that if those who choose not to participate within their Association (and I define participation by doing the minimum - voting) banded together, they would have the voting power to amend the governing documents however they like - regardless of the views or opinions of those who volunteer to serve.

There are a lot of (what I call) anti-hoa sites on the web. This is one of the few sites that allow those who serve to discuss issues and learn from each other on how best to do the job few want to do and to resolve issues at the lowest level possible.

I do believe that your perspective can offer a lot on this site.


Tim




Tim

You have the patience of a saint.

Having skimmed through Fred's site his position on HOAs is quite clear. His little regard for those who volunteer their time to serve on a board is also apparent. His description of successful litigation against HOAs as " slaying them" while certainly quite macho leaves me quite unimpressed.

Fred seems to have made a living practicing law in part with litigation against HOAs and would like to pass this off as a principled career. Trying to bring back " neighborly" behavior. I'm not buying that being his motivation.

Arguing in court over what roofing material is required would be quite boring and unrewarding for me. Surely life would have more to offer. Maybe not.

With time people will show you who and what they are. It would then be your job to treat them accordingly. Fred's site shows me who and what he is.
Gloating over damaging any community including the uninvolved property owners seems to be in Fred's wheelhouse. This while claiming to protect the rights of others. Impossible for me to miss the damage litigation causes. Fred on the other hand is proud of his role.

I volunteer my time as a board member (29 years) to benefit and be a productive participant in the community. Fred charges for his time to be a destructive
element in any process. And always for a price.

I will remain more satisfied with my role going forward.
LeilaniL
(California)

Posts:47


09/15/2016 8:19 PM  
Productive discussions that result in solutions will happen more efficiently and effectively without the accusations and condescending remarks that have been rampant in these related threads. For example, I have no idea who Fred is, though we seem to have similar goals of reform and similar understanding of the core problem (and so does Richard and others).

Challenges and objections are helpful to refine ideas, but false accusations and attacks are not.

As another example, I was asked who put the gun to my head to move into an HOA? I moved into an HOA because in most areas of California, it is the only kind of property I could afford in a decent area. Otherwise I'd have to be a long-term renter or buy a house in the slums. And Tim is correct that the education for buyers about what they are getting into is almost none. Now I am much more aware of the issues, but nevertheless, the answer is not necessarily to leave my condo and move to the slums, but to leave the world knowing that I made my community and maybe the world a better place.

I can't do this on my own and don't have the background that many of you have. But the discussion has to begin and this is a good start.

For now, as I mentioned in my first thread, the time will soon come when a new board will revise the CCRs and BYLAWS and implement something that helps resolve the problem of concentrated power in the hands of a few.

If anyone has ideas; for example, what kind of provisions and protections in your CCRs work well, then let's talk about that instead of creating a municipality--which was my initial thread. But I'm going to start a fresh one on "What works?"

And if you do not like someone's suggestion or input, just state factually why you think it won't work, and DO NOT make insults.
MarkM31


Posts:0


09/15/2016 8:22 PM  
Posted By FredO1 on 09/15/2016 6:57 PM
Tim and Jon:

Sorry about the condescending tone. Sorry to offend.

Have a nice life.

Fred




Fred, Fred, Fred;

You forgot me.

Have a nice life
KerryL1
(California)

Posts:6871


09/15/2016 10:08 PM  
I've advised you elsewhere, Leilani, to read everything you can at davis.stirling.com. So far as I can tell, you have not. Start out by reading their summaries about HOA elections in CA.

Ownrs elects board and Owners can throw them out via recall.

When I first started learning about HOAs in CA, I knew nothing, but I read a whole lot and hooked up with other new owners in my HOA. TOGETHER, unified, and with knowledge, we took over our HOA via two annual meetings, i.e., in one year.
JeffT2
(Iowa)

Posts:524


09/15/2016 10:29 PM  
Posted By LeilaniL on 09/15/2016 8:19 PM

For now, as I mentioned in my first thread, the time will soon come when a new board will revise the CCRs and BYLAWS and implement something that helps resolve the problem of concentrated power in the hands of a few.

If anyone has ideas; for example, what kind of provisions and protections in your CCRs work well, then let's talk about that instead of creating a municipality--which was my initial thread. But I'm going to start a fresh one on "What works?"



CAI wrote a position paper opposing state offices of ombudsman. They gave a number of reasons for opposing it, while of course neglecting to mention that they don't like government scrutiny of their own profession.

The paper may be biased, but CAI briefly mentions interesting alternatives. They suggest that associations adopt internal dispute resolution and alternative dispute resolution prior to litigation. CAI also supports mandatory disclosure of documents to buyers before closing. For states that have outdated laws, they support the adoption of the Uniform Common Interest Ownership Act (UCIOA), which has laws for open board meetings and reasonable access to records.
LeilaniL
(California)

Posts:47


09/15/2016 11:02 PM  
Posted By KerryL1 on 09/15/2016 10:08 PM
I've advised you elsewhere, Leilani, to read everything you can at davis.stirling.com. So far as I can tell, you have not. Start out by reading their summaries about HOA elections in CA.

Ownrs elects board and Owners can throw them out via recall.

When I first started learning about HOAs in CA, I knew nothing, but I read a whole lot and hooked up with other new owners in my HOA. TOGETHER, unified, and with knowledge, we took over our HOA via two annual meetings, i.e., in one year.





Kerry, I appreciate the advice to do a recall. And I have read that advice several times on this forum as if it were that easy. We have the votes. What we don't have is an honest board. During our first recall they gave violations and fines to those who nominated themselves which put them in "not good standing." They told one woman she was not eligible to be nominated because she was late on her dues over a year prior. This was false and they reversed the decision after the election but it was too late. They adopted rules after the petition was submitted that disenfranchised and placed many owners in the status of "not in good standing." They created an election committee made up of relatives of board members. They invalidated the petition for numerous vague reasons. The list goes on.

Instead of going to court on it, we are trying the recall again but we are aware that they will try every covert and even overt way to rig it again. It's a very sad state of affairs here. Very sad.
LeilaniL
(California)

Posts:47


09/15/2016 11:10 PM  
Posted By JeffT2 on 09/15/2016 10:29 PM
Posted By LeilaniL on 09/15/2016 8:19 PM

CAI wrote a position paper opposing state offices of ombudsman. They gave a number of reasons for opposing it, while of course neglecting to mention that they don't like government scrutiny of their own profession.

The paper may be biased, but CAI briefly mentions interesting alternatives. They suggest that associations adopt internal dispute resolution and alternative dispute resolution prior to litigation. CAI also supports mandatory disclosure of documents to buyers before closing. For states that have outdated laws, they support the adoption of the Uniform Common Interest Ownership Act (UCIOA), which has laws for open board meetings and reasonable access to records.





Our CCRs also have internal and alternative dispute resolution requirements, but that only works if the board will agree to meet. In two cases, the board refused to meet with the owners and that left them no option but to file very costly lawsuits in Superior Court.

California does require that CCRs and ByLaws be given to buyers. My experience is that buyers have no idea what they mean or what do about them. They just want to close escrow.

I'll look at the UCIOA. Thanks.
JonD1


Posts:0


09/16/2016 5:41 AM  
Posted By LeilaniL on 09/15/2016 8:19 PM
Productive discussions that result in solutions will happen more efficiently and effectively without the accusations and condescending remarks that have been rampant in these related threads. For example, I have no idea who Fred is, though we seem to have similar goals of reform and similar understanding of the core problem (and so does Richard and others).

Challenges and objections are helpful to refine ideas, but false accusations and attacks are not.

As another example, I was asked who put the gun to my head to move into an HOA? I moved into an HOA because in most areas of California, it is the only kind of property I could afford in a decent area. Otherwise I'd have to be a long-term renter or buy a house in the slums. And Tim is correct that the education for buyers about what they are getting into is almost none. Now I am much more aware of the issues, but nevertheless, the answer is not necessarily to leave my condo and move to the slums, but to leave the world knowing that I made my community and maybe the world a better place.

I can't do this on my own and don't have the background that many of you have. But the discussion has to begin and this is a good start.

For now, as I mentioned in my first thread, the time will soon come when a new board will revise the CCRs and BYLAWS and implement something that helps resolve the problem of concentrated power in the hands of a few.

If anyone has ideas; for example, what kind of provisions and protections in your CCRs work well, then let's talk about that instead of creating a municipality--which was my initial thread. But I'm going to start a fresh one on "What works?"

And if you do not like someone's suggestion or input, just state factually why you think it won't work, and DO NOT make insults.





Than I might suggest before you post the comments made by Mr. O'Neal you take the time to visit his site hoaslayer.com and get to know him.

In it he calls for the elimination of HOAs and boasts about bringing litigation that in his view destroyed the community. Hardly a productive outcome for the property owners in many ways.

When you claim to have similar views perhaps it would be best to know who you are in agreement with. That would include their history and perhaps their role in this sort of process.

When you come to a site visited by many volunteers who work to make existing system work and call for the elimination of all HOAs and suggest board members are all power hungry dictators (as if you know them all) I have the ability to understand who it is I am dealing with.

Being in line with the positions Mr. O'Neal expresses would be a place I would work to avoid.
HOAs will not be eliminated. The local governments won't be taking over HOA governance anytime soon. Nor will there be a private new ruling authority to take over the management of HOAs.

Let's try to stay close to reality.



IM1
(California)

Posts:44


09/16/2016 10:10 AM  

Hi LeilaniL,

I'm curious and I do not recall if you talked about this.....What has been the PM's reaction to what you describe?
RichardP13


Posts:0


09/16/2016 11:27 AM  
I went to Fred's site and I have never shared his views on eliminating HOA's. But, and only speaking for California, there are issues that needs to be addressed and fix. To say issues are not there is turning a blind eye to reality.

Jeff bought up an interesting fact, that in one of CAI's position papers they were opposing state offices of ombudsman. Being a member of CAI, I see two different sides of the same organization. On the state and national level they partner with lobbying groups that fight vigorously on behalf of the governance level of the HOA, meaning the Board of Directors. On the local level, meaning their local chapters, I see a different side, one that is trying to really educate Board members in the proper way to run their HOA's and properly interacting with the homeowners they were either elected or appointed to represent.

If you look at any California legislation, you will always see proponents and opponents attached to any of the bills. CAI, through its legislative action group will generally always take the side of the governing body of an association, while another group will side with the homeowners.

As I mentioned, I have an idea and have spoken with two State legislators. Now the process begins in putting the ideas to paper and taking to other groups to gather support and to hear other ideas that might be a solution. Right now, its David vs. Goliath. Small Claims court is not the arena to try and address the vast majority of issues with HOA's. People are not looking to sue, they're looking for help.

Funds for this project would come solely from HOA's. The only people that can benefit are the same ones that fund the program. It also has the feature of killing two birds with one stone. Excess funds would not be carried over to a create one big slush fund, but rather be deposited into a specific account to help financially strapped associations, which I know are plenty. As comparison, I will use my former association. With 317 units, an annual investment of $951.00 or $3.00 per unit might have saved us $200K in legal fees on one case 6 years ago.

The Davis-Stirling Act wasn't done overnight, it took years. Neither Gray Davis or Larry Stirling made any contribution to the creation of the bill. It was one person acting on their own that made it come to really. The two legislators argued whose about name would come first on the bill.

To further expand on Jeff's comment about CAI's suggestion of IDR and ADR and mandatory disclosure of documents to buyers, California has that. Each year it is required that each association deliver to all homeowners a set of documents known as Annual Budget Report and Annual Policy Statements. In regards to IDR's, prior to this year, homeowners were not allowed to bring an attorney to their IDR, while the association could. That has now changed.


LeilaniL
(California)

Posts:47


09/16/2016 8:32 PM  
Posted By RichardP13 on 09/14/2016 4:18 PM
Leilana

What I proposed is a solution or idea. Someone have a better idea, I am all ears.





Richard, I am intrigued by your proposal but am not too clear on how it will work out practically. For instance, in my case with the rigged special election we had. It would cost us $10-$15k to get an injunction.

What would your proposed entity do for us?

I'm thinking that something like an ACLJ or ACLU (depending on your political proclivity) non-profit could be set up specifically to help owners defend themselves in cases where the board refuses to hold an IDR/ADR or in cases where an emergency injunction is needed fast but is too costly to get for owners, such as in a rigged election.

Part of this non-profit would need to be an education arm that perhaps certifies directors. For instance, a director must become certified within six months of taking office. The certification would include basic Davis Stirling laws, election laws, corporation laws, and especially ethical standards and fiduciary responsibilities of being an officer.

The non-profit would be funded as you suggest.

Thoughts?
RichardP13


Posts:0


09/16/2016 11:17 PM  
Posted By LeilaniL on 09/16/2016 8:32 PM
Posted By RichardP13 on 09/14/2016 4:18 PM
Leilana

What I proposed is a solution or idea. Someone have a better idea, I am all ears.





Richard, I am intrigued by your proposal but am not too clear on how it will work out practically. For instance, in my case with the rigged special election we had. It would cost us $10-$15k to get an injunction.

What would your proposed entity do for us?

I'm thinking that something like an ACLJ or ACLU (depending on your political proclivity) non-profit could be set up specifically to help owners defend themselves in cases where the board refuses to hold an IDR/ADR or in cases where an emergency injunction is needed fast but is too costly to get for owners, such as in a rigged election.

Part of this non-profit would need to be an education arm that perhaps certifies directors. For instance, a director must become certified within six months of taking office. The certification would include basic Davis Stirling laws, election laws, corporation laws, and especially ethical standards and fiduciary responsibilities of being an officer.

The non-profit would be funded as you suggest.

Thoughts?



Leilana

The project would be funded by MEMBERS for MEMBERS of ALL associations. It would not be run by a non profit, it would be run as a state agency with legal enforcement authority. After-all, it was the state and municipalities that legislated the changes to begin with. Municipalities forced all new home building into HOA's.

In your case, a complaint would be filed with the department with a ruling back to the agent for the corporation. In Small Claims, prior to speaking with the speaker, the parties are given an order of free mediation. This would be the same. Hopefully, it will stop some on the bullying that we all know goes on.

Before you regulate directors, you must regulate MC's and managers, then start of process of mandatory process of educating directors. I understand that is done somewhat in Florida.

I have most of the draft done will meet again with the same legislators to start the process within two weeks.
LeilaniL
(California)

Posts:47


09/17/2016 10:41 AM  
Posted By RichardP13 on 09/16/2016 11:17 PM
Posted By LeilaniL on 09/16/2016 8:32 PM
Posted By RichardP13 on 09/14/2016 4:18 PM
Leilana

What I proposed is a solution or idea. Someone have a better idea, I am all ears.





Richard, I am intrigued by your proposal but am not too clear on how it will work out practically. For instance, in my case with the rigged special election we had. It would cost us $10-$15k to get an injunction.

What would your proposed entity do for us?

I'm thinking that something like an ACLJ or ACLU (depending on your political proclivity) non-profit could be set up specifically to help owners defend themselves in cases where the board refuses to hold an IDR/ADR or in cases where an emergency injunction is needed fast but is too costly to get for owners, such as in a rigged election.

Part of this non-profit would need to be an education arm that perhaps certifies directors. For instance, a director must become certified within six months of taking office. The certification would include basic Davis Stirling laws, election laws, corporation laws, and especially ethical standards and fiduciary responsibilities of being an officer.

The non-profit would be funded as you suggest.

Thoughts?



Leilana

The project would be funded by MEMBERS for MEMBERS of ALL associations. It would not be run by a non profit, it would be run as a state agency with legal enforcement authority. After-all, it was the state and municipalities that legislated the changes to begin with. Municipalities forced all new home building into HOA's.

In your case, a complaint would be filed with the department with a ruling back to the agent for the corporation. In Small Claims, prior to speaking with the speaker, the parties are given an order of free mediation. This would be the same. Hopefully, it will stop some on the bullying that we all know goes on.

Before you regulate directors, you must regulate MC's and managers, then start of process of mandatory process of educating directors. I understand that is done somewhat in Florida.

I have most of the draft done will meet again with the same legislators to start the process within two weeks.





Richard,

I like the idea of mandatory mediation which would be binding. Right now, IDR and ADR, even if the parties agree to meet, is not binding.

I think there needs to be a time limit on hearing the matter and giving the order as time is of the essence in most of these cases to reduce further abuse of the owners and mismanagement of HOA funds.

Who will oversee this government entity?

What kind of regulation of MCs is included in the draft?

Are you willing to share the draft for a peer review of sorts before meeting with the legislators?
KevinK7
(Florida)

Posts:1343


09/17/2016 1:04 PM  
When there was talk about creating an ombudsman for HOAs here in FL I believe the proposal was a tax on all HOA properties. The only issue I see is what happens when an hoa takes actions against non-members, such as in my situation? And what happens when documentation is poorly done? In my petition to the state the state listed my home as a member of an association and they cited the property appraiser's office, which does not keep membership. Thep apraiser even listed my property as not having a hoa yet now I have to go to court because the state was not given jurisdiction over anything except rubbers tamping documents.
TimB4
(Virginia)

Posts:16657


09/17/2016 1:15 PM  
Posted By LeilaniL on 09/17/2016 10:41 AM

I like the idea of mandatory mediation which would be binding.




I wouldn't.

Mediation and arbitration are two different things.

Mediation is to resolve the issue with compromise.
Mediation is not required to apply applicable statutes to the situation.

For example: Lets take Freds case about the roofs. Expecting that prior approval was needed and not sought and the roof has already been installed, the mediator may try to have both sides to agree to let the roof stay but when it is replaced or when the property is sold, the roof shingles must be replaced with a tile roof (vs. shingles).

In this example, the issue of compliance with the terms of the contract is never addressed (although that would be the crux of the case). The interpretation/ruling on the interpretation of the passage Fred brought up is never defined. It's simply a compromise to keep the court docket from being too full.

Binding arbitration means that you are stuck with the decision of the arbitrator, regardless if the law is on your side or not. There is no appeal (as there would be in court).



See:


Mediator Licensing and Certification
in California


Arbitration and The Unauthorized Practice of Law

TimB4
(Virginia)

Posts:16657


09/19/2016 5:46 PM  
Richard,

I would amend your idea and have the funds pay a court judge and staff for the sole purpose of hearing cases against HOAs. Similar to small claims court but with more authority. Lawyers would be allowed but not required.

If there are enough funds, pay for additional judges/staff.
RichardP13


Posts:0


09/19/2016 7:19 PM  
Posted By TimB4 on 09/19/2016 5:46 PM
Richard,

I would amend your idea and have the funds pay a court judge and staff for the sole purpose of hearing cases against HOAs. Similar to small claims court but with more authority. Lawyers would be allowed but not required.

If there are enough funds, pay for additional judges/staff.



The purpose is to keep these things out of court. It is would people you specialize in HOA's and how they are supposed to run based on current regulation. Small Claims, especially in Southern California, are run not by judges but commissioners who leave a lot to be desired. To get a case in Small Claims right now is 8 months and half the courts have been closed.

A week ago I spent a hour and half on the phone with someone trying to recall their Board that presented a proper petition. Both the Bard and the MC refused to send out ballots.

The project has enforcement and the ability to fine written into it.
TimB4
(Virginia)

Posts:16657


09/19/2016 7:23 PM  
I know the purpose is to keep things out of court. However, since some of the issues deal with ruling on the interpretation laws, courts need to be involved. Therefore, have judges that know HOA issues (as these will be all they will deal with). Give the judge authority to issue injunctions and, if needed, appoint receivers.

My reference to small claims court was only regarding the use of attorneys being voluntary.

LeilaniL
(California)

Posts:47


09/19/2016 7:27 PM  
Posted By TimB4 on 09/19/2016 5:46 PM
Richard,

I would amend your idea and have the funds pay a court judge and staff for the sole purpose of hearing cases against HOAs. Similar to small claims court but with more authority. Lawyers would be allowed but not required.

If there are enough funds, pay for additional judges/staff.





I really like this idea. In California, the law was recently amended to allow limited types of HOA issues in Small Claims, including certain election issues and access to HOA documents. However, few judges have knowledge of HOA law and I have not yet seen a case brought to small claims asking the judge for election rulings, injuunction relief related to elections, etc. It may have happened, but I haven't seen it. When I call the small claims clerks, they know nothing about taking HOA issues to small claims court.

It would really be awesome to take an HOA-related issue to a dedicated judge knowledgeable in HOA law and who has the power to issue injunctions and rulings, oversee elections, etc. and especially do so in a timely manner (not in a year like Superior Court). That really would be great.

KevinK7
(Florida)

Posts:1343


09/20/2016 6:24 AM  
Posted By LeilaniL on 09/19/2016 7:27 PM
Posted By TimB4 on 09/19/2016 5:46 PM
Richard,

I would amend your idea and have the funds pay a court judge and staff for the sole purpose of hearing cases against HOAs. Similar to small claims court but with more authority. Lawyers would be allowed but not required.

If there are enough funds, pay for additional judges/staff.





I really like this idea. In California, the law was recently amended to allow limited types of HOA issues in Small Claims, including certain election issues and access to HOA documents. However, few judges have knowledge of HOA law and I have not yet seen a case brought to small claims asking the judge for election rulings, injuunction relief related to elections, etc. It may have happened, but I haven't seen it. When I call the small claims clerks, they know nothing about taking HOA issues to small claims court.

It would really be awesome to take an HOA-related issue to a dedicated judge knowledgeable in HOA law and who has the power to issue injunctions and rulings, oversee elections, etc. and especially do so in a timely manner (not in a year like Superior Court). That really would be great.




I too would think that would be a great start.

In my petition to the state regarding my "HOA," the state approves HOA documents and determines whether or not to approve a revitalization, but it seems they refuse to interpret or even look into the legality of matters and operate under an assumption that everything provided to them is up to par. When I challenged them my attorney focused on some very specific issues, such as the fact that the HOA failed to get unanimous consent (or their stated 3/4s consent) because they filed duplicate or invalid joinder and consent forms or that there are decades of case law supporting my case regarding mandatory conversions. The state would not look at it because that was beyond their scope. They can approve anything put in front of them but that was it. I suppose they would only rule on administrative matters - as in the HOA and state dotting all their "I"s and crossing all of their "T"s.

Now I have to take the matter to circuit court but who knows if I will get a judge knowledgeable in HOA matters. In my other community that went to court, the initial judge was one that I believe had more experience in family court matters. They dismissed the case against the HOA right off the bat. The second judge understood the finer points of HOA law in Florida and the plaintiff later prevailed.

This is why I would much rather prefer a specialized department that could oversee HOAs. In municipal government I can attend hearings, petition, vote, or go to the state or my elected representatives. With my situation I cannot go to anyone but the courts. I am not a member so I cannot vote or go to meetings yet the HOA claims jurisdiction over my property and the right to enforce restrictions. My elected officials have told me nobody can help. The state has no authority. My only option is court. How is that fair?
JohnC46
(South Carolina)

Posts:9121


09/20/2016 7:23 AM  
Kevin

Are you saying you lost the last round of your attempt to remove your home from the HOA?
KevinK7
(Florida)

Posts:1343


09/20/2016 10:10 AM  
Posted By JohnC46 on 09/20/2016 7:23 AM
Kevin

Are you saying you lost the last round of your attempt to remove your home from the HOA?



No. The state Department of Economic Opportunity stated they were not capable of looking into matters regarding the legitimacy of an association, despite the fact that approval of a revitalization hinges on whether or not they had standing and whether or not they were legally authorized to possess jurisdiction over the properties. Basically my appeal was put on hold until a circuit court determines legitimacy.

Reference of another judge dismissing a case was in my last neighborhood, where a neighboring subdivision decided to annex the surrounding subdivisions by amending their declarations and forcing all owners (including non-members) to pay an assessment and be subject to the new declaration while being banned from all meetings. Eventually the plaintiff in that case won against the association.

I use my previous neighborhood as a comparison because of the similarities in case and because the hoa attorneys behind the mandatory conversions were the same.
PatS12
(Florida)

Posts:1


02/11/2020 6:00 PM  
Many times Restrictions i.e. tile roofs are often written into documents based on Developer/builder's preference and few if any documents take into consideration as to updated technologies and improved alternate products.
Maybe it's time for that HOA to review documents and look to options for homeowners to update .
GenoS
(Florida)

Posts:3545


02/11/2020 6:42 PM  
Pat, welcome to HOATalk. This thread is 3.5 years old.
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Forums > Homeowner Association > HOA Discussions > Creating a Municipality or Utility to Govern HOAs



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