In a free and civilized society there is the expectation that the citizens have rights, including the right to be treated fairly. However fairness seems to be one of the first casualties in mandatory membership residential associations. Gone are all the safeguards put in place by the Constitution. Gone is the notion of checks and balances and the idea that in the event of a dispute there will be a fair and just outcome. Is this just an HOA problem or does it affect other institutions?
Caroline Douglas joins us On The Commons. Caroline has a law degree, and is passionate about the law. She is an author and a professor in Maryland and is always willing to share her knowledge, expertise and ideas with us. She is very well aware of the what can happen when the safety nets fail to ensure fairness. We’ll talk about the meaning and need for law. We also learn about a 30 year old case, how that was handled in court and what has happened in the Pam Smart case. How can we ensure fairness in this world?
There is a rumor out there that buying a condo or a home in an HOA not only protects but also enhances property values. I still haven’t figured just out how that supposedly works. But proponents of the regime insist it is so. For the sake of argument I’ll leave that alone for the time being. But how on earth do they explain the fact that homeowners are responsible for the actions or inactions of the people either elected or hired and paid good money to “protect and enhance” your property?
Jan Bergemann joins us On The Commons. Jan is a long time advocate and legislative activist for protecting the rights of home and condo owners in Florida. Jan is the founder and President of the Florida based Cyber Citizens for Justice . He keeps a close watch on all the news related to housing, rentals, litigation involving homeowners and pending legislation that would affect the owners. Many, if not all, of the stories end up on his web site. One recent story involves a $7.5 Million award to a condo owner who seriously hurt himself when he fell into a hot tub that had been partially emptied, ill lit and left unprotected while the necessary repairs were being done. We talk about the case and wonder just how much it will cost the owners in the condominium to cover any shortfall in the event that the insurance isn’t adequate to cover the entire $7.5 Million? How does the assertion that a condo protects and enhances property values work in a situation like this?
I keep thinking that there really must be a breaking point. A point where American housing consumers start digging a little deeper and looking beyond the frills and the pretty upgrades in a house they are considering buying. I hope they start looking for construction inspection reports (if such a thing exists and if not it might be a good idea to turn around and RUN as far away as possible). They should also find out whether or not there is a mandatory, involuntary membership requirement in a homeowners association. An upgraded backsplash in the kitchen is not going to make up for a house that is poorly constructed, starts falling down around them and is run and managed by people they would be better off never having met. The quality of their lives in such a place could very well become material for a horror story.
But, you think, the courts are always there to sort it all out, aren’t they? Tune in. It is time to take those rose colored glasses off and take steps to prevent yourself from getting trapped in a real live horror movie.
Nila Ridings joins us On The Commons. Nila could be the poster child for what happens when the HOA seemingly has a personal vendetta against a member. Her story starts many years ago when her driveway started sinking and got lower than the garage floor, causing problems in her house. There were other construction problems that the HOA chose not to replace on her property, citing inadequate funds as the reason. Miraculously they found the money to make the repairs on other homes in the development. He request for access to the financial records of the HOA was, predictably, denied even though this is a basic right of the members. To understand the twists and turns in her story and the road that led to years worth of very costly litigation and the loss of her house, you will have to tune in and hear Nila explain it and then to find out that at the end of the day, she was even denied her day in court. Over the years Nila has used the knowledge she has gained from her own battles to help others who find themselves in a war for their home, their rights and their sanity while fighting for her own home. Her story might help you loosen your grip on those rose colored glasses you have.
We’ve all heard the ridiculous explanations about the horror and abuses of HOAs. “It’s ALL your fault, condo and homeowners, because you agreed”. And that begs the question of why any sane and rational person who fully understands all the ramifications of association living would ever agree to the lopsided powers against them? Do housing consumers really understand that the notion of an HOA contract is as fake as they come? In a contract both parties are pretty much on an equal footing. They agree, in the case of an HOA, to pay a certain sum of money on a monthly/quarterly or annual basis in return for certain services and benefits. So far sounds OK, right? But in the event of a breach in the contract the HOA has seemingly limitless powers to enforce their perception of the breach of the fake contract while the owner is left with nothing more than the right to hire an attorney and go to court. The association? Well, they can fine you and take your house away without ever going to court. Seems fair, right? No, I didn’t think so either. What happens when you exercise your 1st Amendment Right to Free Speech and decide to tell your story? Does that offer you any leverage? Can you prevent someone else from getting caught in the same house of horrors? Well, that’s where more and more homeowners these days are running into something called a gag order. You can’t talk about what you have endured and how the courts sided against you even further tipping the scales of justice in favor of the association.
John Cowherd join us On The Commons this week. John is an attorney in Northern Virginia who represents homeowners caught in the web of HOA horrors. Surprise, surprise, he knows the laws pertaining to condos and HOAs in Virginia. Something not many attorneys understand. John is a blogger where he writes about all things related to real estate, including HOAs. His blog is called Words of Conveyance. We talk to John about his recent blog titled Are Legal Remedies of Owners and HOAs Equitable? We talk about the associations right to fine, why they like that power and what an owner can do to protect him or herself. We also talk about court imposed gag orders to prevent any information about the cases from ever seeing the light of day. Perhaps we ought to remind them of the Louis Brandeis quote: “Sunlight is the best disinfectant”
An often cited benefit for residential associations used to be that they allowed the members greater control over their immediate surroundings. The other bonus they were promised was that collectively they would gain political clout. At least that was the sales pitch, along with the ever present promise of enhanced property values. It all sounded wonderful and in a perverse sense sounded sort of logical. But as we have learned over the years not everything works the way it is supposed to. In fact in the case of residential associations, the opposite is true. Not only don’t the members have control over their immediate surroundings but have lost sovereignty over their own private spaces. The existence of an HOA or Condo association is infinitely more intrusive and tyrannical than a neighborhood where the residents are on their own and allegedly have no control.
Jonathan Dessaules joins us On The Commons. Jon is an attorney in Phoenix, Arizona. As part of his practice he represents homeowners against their associations. He is one of a handful of attorneys nationwide who will only represent the owners and not straddle the fence hopping over to the HOA side when they feel like it. Currently his is in a class of his own in Arizona. He also has a blog where he discusses HOA issues and gives general guidance. It’s a great page to check out for quick guidance on some of the more common issues facing homeowners. We talk to Jon about all the usual HOA issues common to all American homeowners but we also talk about a long and protracted case that he recently won. His clients own a unit in an upscale condominium where the fees are in excess of $1,000/month. The condo shut the key card down, impeding access to the private unit and banned the use of the amenities until the owners forfeited a right they had. So much for having greater control of your immediate surroundings in a residential association.
You follow a case as it winds its way through the court system. It seems so simple, so cut and dried that you wonder why so much time, money and hostility is invested in such a petty argument. Why should it cost hundreds of thousands of hard earned dollars to figure out whether a homeowner in an association can have white roses instead of red ones? Or whether or not a condo owner is allowed to have a small American flag on his or her front porch or if a family can have a swing set in the backyard for their children? Why should these even be an issue? And why would anyone in their right mind care? And finally, after months of discovery, nasty letters, fines, bullying, isolation and abusive language, dividing up the neighborhood, name calling and other nastiness, the opinion from the judges is handed down deciding the case once and for all. This is it, this is the end of this road. The wise men and women of the legal system have spoken and you are left with your mouth hanging open, wondering what on earth just happened.
Caroline Douglas joins us On The Commons. Caroline has a law degree although she is no longer a practicing attorney. She has seen the dark side of the legal profession and decided to blow the whistle on what happens “behind the scenes”. In an 800 page book called “The Dark Side: a law treatise on judging – with memoir” she explains it all and gives us clues to look for so we are not caught off guard. In a fascinating interview she walks us through what goes on behind the scenes and how and why some of these off the wall decisions are reached. Caroline has witnessed these irregularities both as a practicing attorney and a litigant caught in this legal “chamber of horrors”. You can reach Caroline at email@example.com but you won’t want to miss this interview.