Mediation

Robin Lent

“If it sounds too good to be true, it usually is.”  When confronted with anything that “sounds too good to be true”, don’t take it at face value, instead do a little digging to get the details.  One of these golden gems in the land of residential associations is Alternate Dispute Resolution, or ADR.  Proponents would have us believe arbitration and mediation are cheaper, quicker and better than going to court.  It sounds too good to be true so I did a little digging, and several years ago wrote a paper on my findings which is on my web site. You can read it  here.  But there is so much more. 

As time goes on and more and more people fall in the trap of giving up their right to go to court, some pretty unsavory details have come to light. Mediation is used pretty extensively in neighborhood association wars which usually include a confidentiality clause, in other words, a gag order. I have always opposed this.  

Robin Lent joins us On The Commons.  Robin, a Texas homeowner got tangled up in a battle with her association 10 years ago, went to a court ordered mediation and after an exhausting session, when she was ready to drop, signed an agreement that included a confidentiality clause.  The terms of the settlement are sealed so we will NOT be discussing them BUT for the details of the mediation process, and the fall out of the gag order,  you will have to tune in.  It was a huge eye opener for me and I learned so much from this show.  So, you think you want to go to arbitration?  Please tune in.   

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Fiduciary Duty, Fighting Back, Law Suits

Scott Wircenski

How do you fix something that is so horribly broken, something that was built on a foundation of lies and misinformation and something that is so anti owner?  You can’t.  For the past several decades homeowners, legislators, academics, health professionals and yes, even the homeowners themselves, have suggested ways weeks and mini fixes, all they have accomplished is made the whole process more burdensome and complicated.  Maybe it is time to take a step back, analyze the issues and the reasons for the conflicts and tackle the real reasons for the feuds instead of just trying to make them more palatable.

Scott Wircenske joins us On The Commons.  Scott, a homeowner in Kansas asked the board of directors of Parkhill Manor HOA a rather embarrassing question: “where is our money?” .  Homeowners who are members of any residential association are responsible for the financial health of the association as well as the condition of the common assets (liabilities?).  The owners have a right to know what is going on and the board has a fiduciary duty to keep the owners informed.  Scott’s board chose, instead, to withhold that information.  For the past 8 years Scott has been involved in litigation, trying to work with the board as well as attempting to get legislation enacted to prevent the abuses.  Scott shares his story with us and warns us of the pitfalls that he encountered. 
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Going to Court, Judicial

Caroline Douglas

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 carolinegdouglas@gmail.com but you won’t want to miss this interview. 

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Fighting Back

Deborah Goonan

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It is so easy to just accept as gospel what we read, hear and are told without actually thinking things through.  One issue that is really rich in such non sequiturs is the whole concept of condo and homeowner associations.  The reasons and explanations given about the benefits of these forced memberships are many and, as our president would say, FAKE NEWS.  Think about it and try to understand how, allowing complete strangers full and total power over your home can protect your rights?  How “agreeing” to finance every and any folly of this group of strangers can be a good thing? Oh, so you have met some of them and they seemed really nice?  Maybe.  But does that translate to them having the knowledge and common sense to make sane and sensible decisions regarding what you own and where you live?  And did you really “agree” to all this?

Deborah Goonan joins us On The Commons.  Deborah owns and maintains a very active and widely read blog called  Independent  American Communities.  She tracks and writes about the many issues that happen on a daily basis in residential America.  So many  of the stories have heartbreaking consequences when individual homeowners have no idea and no say in what is happening in their communities or in their names. While the owners may have been kept in the dark, lied to and perhaps even targeted, they are, never the less, still on the hook for the many stupid decisions made by “those nice neighbors” who sit on the board.  We talk to Deborah about some of the stories she has blogged about recently and learn about one incident where “penny wise” proved to be “pound foolish” and where one young man will bear the marks of a board’s poor judgement for the rest of his life.  During our conversation, politics rears its ugly head and we learn why, when this concept, notwithstanding all the platitudes of the proponents of residential associations, are we still mass producing them and leading unsuspecting housing consumers into the lion’s den?

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Living in an HOA can easily result in an empty wallet.
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Legislation

Jan Bergemann

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I hear from so many people who tell me they will NEVER, EVER buy in an HOA again.  NOT EVER!!!  However, finding a good old fashioned, stand alone house with no strings attached, no extra layer of government and no financial liability in case of mismanagement or other misdeeds, is getting to be as hard as finding a needle in a haystack in many parts of the country.  Residential associations are such a lucrative business for local municipal governments who mandate them, developers who build them and lets not forget the special interests who milk them for all they’re worth.  And the owners pay for all the junked up add ons to what was once respected as a private castle.  And hammering in the final nail is your state representative.  He or she has been bought and paid for by special interests.

Jan Bergemann joins us On The Commons.  Jan is the founder and president of the Florida based Cyber Citizens for Justice.  Jan has worked tirelessly for years trying to get legislation enacted to protect the rights of home and condo owners in Florida.  With every homeowner friendly bill it has been a case of one step forward and several backward.  This year is no exception.  We’ll talk to Jan about one bill in particular that would allow HOAs to LEGALLY operate under cover of darkness.  Really. We scratch our heads, wondering about the utter insanity of it all and ask why we allow it?  Why are homeowners and citizens allowing the tail to wag the dog?  When are we going to be able to differentiate between the truth and all the lies and when are we going to realize that we also have a voice in this game?

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Legislation

Frank Short

We are told that homeowner associations are here to stay. I am not convinced that is the case. However, until we come to terms with the fact that what we  are dealing with is a flawed concept, one that goes against everything we hold dear, we will stubbornly insist on trying to  make them work.  The fact that after a half century of fiddling with the legal structure, proposing bills to either try to make them more owner friendly or empower them even more, all we seem to accomplish is to create an even bigger headache for ourselves at a much greater expense.  

Frank Short joins us On the Commons for his annual St. Patrick’s Day round up of Virginia homeowner and condo association bills.  There were loads of them this year.  Some were proposed legislative fixes inspired by, or requested by  angry or wronged owners  and introduced by helpful legislators while many others seek to increase the powers of the associations. Whether any of the owner friendly bills would actually fix many of the major problems that plague these mandatory membership residential associations is doubtful.  We’ll talk about the bills, what they would, or could have done. But at the end of the day, we never really address the need for so many laws to prop up a really bad idea instead of asking whether there is any value in the HOA concept for the owners. Maybe one day we’ll actually get there. 

 

The Virginia State Capitol Richmond, Virginia

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Democracy

John Cowherd

Sometimes we just have to take a really bad idea and make it that much worse, don’t we?  We start off with a scheme to provide municipalities with a means of collecting free tax dollars – THAT was the 1st bad idea in this chain of horrors we have created.  The second bad idea was allowing them to mandate involuntary membership HOAs. To keep the owners under control, and as a favor to the special interests, state legislators sponsored bills giving associations greater powers.  The bills kept coming so something that should be simple has become so unbelievably complicated.  Add to that well intentioned, but largely ignorant, homeowners who have made it their business to dream up more “laws” further stripping owners of rights and you have a monumental mess.  Will we ever learn to “Keep it Simple”?  As the song says, “The answer is blowing in the wind!”

John Cowherd joins us On The Commons.  John, a Virginia attorney and a frequent guest on the show represents homeowners in condominiums and homeowner associations as part of his practice.  He is also a blogger.  In his Blog ,  Words of Conveyance, he talks about cases and highlights news in the world of real estate.    Notwithstanding a growing family and a growing practice John manages to keep his finger on the pulse of what is going on in the land of controlled living.  We talk about the changes in residential neighborhoods brought about by all these “bad ideas” that have been piling up.  We brainstorm about some of the issues and problems facing Americans, whether they own or lease in residential associations, they are all subject to the same intrusive and petty rules and disasters.  With all the bad ideas needlessly complicating every day life, there is, as you can imagine, a lot to talk about.  Tune in.

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Fighting Back, Legislation

Fatemeh Mojtabai

Over the years industry lobbyists have convinced state legislators, and in some cases US legislators that they represent the homeowners living in residential associations, be they condominiums or homeowner associations.  Gradually over the years they have managed to get legislation enacted stripping owners of rights and property and thus empowering associations.  When contacted by their constituents the legislators have explained that the homeowners themselves requested the new laws.  Of course that is not true.  They have even gone on to say that it is the homeowners fault for their problems because they bought into an association governed development.   Hopefully times they are a changing. With their ability to network, connect online and compare notes, homeowners are getting much more savvy. And they are getting active.

Fatemeh Mojtabai joins us On The  Commons.  Fatemeh, a condo owner in Massachusetts, encountered the perils of condo living first hand a few years ago.  She searched online and discovered that contrary to what we are often told, her story was not “an isolated incident”. Further, she didn’t do anything to deserve the problems she faced and yes, it happens all the time. She met others with issues and problems in their own neighborhoods, started talking and connecting with other home and condo owners across the country and together they have started a new organization called  HAARRT   in order to empower homeowners and build a network of groups working together.  We talk to Fatemeh about HAART, about the need to get legislation enacted to provide the framework to protect the sanctity of home and property rights and to assert control over what is rightfully ours.  Tune in and find out how you can be a part of this movement and why you might want to.

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Abuse, Condominium, Fighting Back

Jonathan Dessaules

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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.  

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Apathy, Fighting Back

Shelly Marshall and Michael Marshall, PhD

If people knew what they were getting into, would they still buy in an HOA?  I was convinced that they wouldn’t, but I was wrong. Thirty years ago, when I first became aware of HOAs and started to understand what we were dealing with, HOA mandates were already in place in Fairfax County and probably across the country as well.  However, there were still pockets of older neighborhoods, so some choices still existed.  Now, even most of those older neighborhoods have been razed to the ground only to be replaced by some new faddish fantasy that will no doubt sound positively utopian but in practice be unworkable.

Shelly Marshall and Michael Marshall, PhD join me On the Commons.  Shelly is an  HOA Warrior.  She is a prolific writer of self-help books including a book on HOAs, what to look for and how to understand what you are getting into.  Dr. Marshall, Shelly’s brother, is a Psychology Professor and practitioner.  This dynamic duo have combined forces to answer the question; “Why can’t people hear us?”.  Shelly warned Mike about the risks involved in buying a condo and told him to keep looking but that didn’t stop him.  For a while everything went well until one day when  his utopian dream came crashing down.  So why didn’t he listen?  Why don’t people learn from other people’s stories?  Mike and Shelly, along with Deborah Goonan, are working on a case study, doing some research with the intent of publishing a paper answering this question.  In an easy to understand and simple way, Mike explains the psychology behind human nature.  He and Shelly fill in with facts, stories and typical situations that take place every single day. This is a very exciting piece of research and a fascinating interview.  For all those people who believe that “HOAs are here to stay,” are you listening?

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