There are several reasons to thank the Virginia Legislature this year, not the least of which is to have all the new bills in for us to talk about on our annual St. Patrick’s Day show. ˇSome years the news is pretty grim for homeowners because the special interests have managed to convince our esteemed law makers to further empower HOAs. ˇThis year, however, things were a little different and our legislators actually had the best interest of their constituents in mind. ˇ
Frank Shortˇjoins usˇOn The Commons. ˇFrank is an attorney and a friend and our resident St Patrick’s Day leprechaun and takes us through all the new bills and laws that affect the Virginia Property Owners Association Act (POAA) and the Condo Act. ˇHe explains the new laws, tells us whether they passed or failed and how they would affect us. ˇThis year we talk about 6 bills, some passed and others were tabled. ˇShould the ones that were passed over this year be reintroduced next year? ˇHow would they protect the homeowners’ rights and their property? ˇCould some of the bills be used as a model for other states? ˇTune in, you won’t want to miss this one.
With special thanks to Senator Chap Peterson for sponsoring a bill titled “The Homeowners Bill of Rights”. ˇThanks also to Senator Dave Marsden, Delegates Chris Peace, Brenda Pogge and Tom Rust forˇsponsoring homeowner friendly bills this year. We appreciate your efforts on our behalf.
7 thoughts on “Frank Short”
Congratulations, Shu. Homeowners can depend on “On the Commons” to spread the word about HOAs and COAs. I was rudely awakened to how powerful these neighborhood gangs actually are when the HOA in my neighborhood – Quail Hollow in W. Columbia, South Carolina – suddenly declared membership dues mandatory instead of voluntary. It seems the power structure – special interests propped up by crooked legislators – is now tossing homeowners a few bones in an effort to stem the increasing opposition to HOAs that’s taking place all across the country. HOAs need to be stripped of their authority to foreclose on homes and levy fines, i.e., they need to be abolished, not regulated. I’ve been blogging about the situation – my website link connects to one of my posts. Thanks again for your efforts.
So, in other words the situation is so bad that we have to settle for celebrating when the imbalance of power between H.O.A. corporation and individual home owners isn’t made worse than it was the year before.
We are truly screwed.
Unless a bill does at least one of the following:
– allows home owners to opt-out of the H.O.A. corporation. Look at the collective orgasm Republicans had earlier this month when Wisconsin became the 25th “right to work” state, prohibiting contracts which require involuntary membership in a labor union as a condition of employment. Why not prohibit contracts which require involuntary membership in an H.O.A. corporation as a condition of home ownership?
– prohibits H.O.A. corporations from enforcing restrictive covenants ; i.e., H.O.A. corporations would only be responsible for maintenance of common areas. Individual home owners would still be free to enforce restrictive covenants against their neighbors, but would not be able to “hide behind the corporate veil” in order to do so. (c.f., Tyler Berding “It’s Your Neighbors, Stupid” May 21, 2011 at http://condoissues.blogspot.com/2011/05/its-your-neighbors-stupid.html )
– prohibits H.O.A. corporations from foreclosing on home owners
– prohibits H.O.A. corporations from fining home owners
– prohibits H.O.A. corporations from using the “priority of payments” accounting scam. I’m surprised this one has not been addressed by any legislative body. It seems that an accounting practice which artificially inflates the amounts and rates of deliqnuent assessments would make it harder for potential buyers to obtain financing, thus reducing property values. Has anybody looked at that?
– prohibits H.O.A. corporations from acting as an intermediary between residents and utilities. This has been a problem in condominiums, where residents pay the H.O.A. corporation, but the H.O.A. corporation does not pay the municipal water bill, resulting in water being shut off to the entire condo complex.
– requires H.O.A. corporations to publish an annual prospectus, and make it freely available to the public. This is not the same as “disclosure”, where a buyer is (or may be) presented with a stack of papers at closing, or “open records” requirements, which are frequently ignored and not enforceable (personal experience).
– insulates home owners from the liabilities of the H.O.A. corporation (“As a corporation, an H.O.A. is a defective product”) (c.f., Tyler Berding “Why There’s No Protection for Members When Community Associations ‘Go Broke'” January 27, 2010 at http://bankruptcywontwork.blogspot.com/ )
then it isn’t addressing the fundamental problems, perverse, incentives, and moral hazards inherent in the system. Even “good” legislation, e.g. allowing home owners to conserve water, is a waste of effort and scarce political capital.
I’m not claiming this list is complete, so feel free to add any suggestions to it.
But after listening to this episode, I was struck by just how forgettable and unremarkable and uninspring the bills discussed are.
Whatever passes for an H.O.A. “reform movement” needs to figure out what it wants to accomplish. Instead, it seems to be responding on an ad hoc basis; i.e, “we need a bill to allow xeriscaping”, “we need a bill to allow radio antennas”, “we need a bill to allow the display of the American flag”, etc. I’ve been at this for about five years, not anywhere as long as some of you, and I still have absolutely no idea what your (plural) desired endgame is.
Another thing to add: it seems that all of the bills had a “notwithstanding the provision of” or “except as provided for” clause in them, which indicates lotsof loopholes.
sort of related: see Deborah Goonan’s analysis of loopholes in a Florida bill that allegedly provides relief for home owners, at http://neighborsatwar.com/2015/03/loopholes-will-still-allow-rich-floridians-to-force-condo-owners-to-sell-at-a-loss/ (“Loopholes Will Still Allow Rich Floridians To Force Condo Owners To Sell At A Loss “, 3/19/2015). Just one of the many reasons I’m extremely cynical about H.O.A. reform legislation that doesn’t address any of my bullet points listed in my comment above.
Add to that list, we should be allocating votes per registered adult of voting age based upon residency vs. votes allocated per unit or percentage of property owned. No one should get more than one vote, regardless of the number of units owned!
Homestead owners rights must trump corporate investor-owner rights — not the other way around.
Then also add – prohibiting developer control of residential housing developments. (along with weighted voting rights and a developer-appointed Board)
For an example of how dilluted H.O.A. reform efforts are, look at the bills in Texas this session. There are 30 of them.
Instead of addressing the underlying issues and fundamental problems with H.O.A.s, a lot of time, effort, and political capital is being expended on band-aid fixes.
Texas: 2015 List of Bills Filed Concerning HOA/POA/COAs
HJR 55 – Villalba – Proposing a constitutional amendment relating to a person’s free exercise of religion.
HB 745 – Bohac – Relating to the installation of solar-powered stop signs by a property owners’ association.
HB 748 – Isaac – Relating to the regulation of liquid propane gas tanks on residential property.
HB 939 – Dale – Relating to unenforceable restrictive covenants regarding standby electric generators affecting residential homes.
HB 971 – Bohac – Relating to requirements governing officers and directors of condominium unit owners’ associations and property owners’ associations.
HB 1072 – Thompson – Relating to the eligibility of certain persons to serve on the board of a property owners’ association
HB 1178 – Isaac – Relating to the enforceability of certain restrictive covenants governing the use of fuel on and supply of fuel to property in certain subdivisions or other planned developments.
HB 1335 – Gutierrez – Relating to the collection of attorney fees in property owners’ association foreclosures.
HB 1442 – Workman -Relating to a property owner’s right to remove a tree or vegetation that the owner believes poses a fire risk.
HB 1455 – King – Relating to procedures required before a condominium association files a suit or initiates an arbitration proceeding for a defect or design claim.
HB 1792 – Springer – Relating to regulation of residential short-term rental units; creating offenses and authorizing a fee.
HB 1886 – Martinez – Relating to the authority of certain counties to impose an assessment on landowners for the installation, operation, and maintenance of streetlights.
HB 2147 – Keffer – Relating to secret ballots in a property owners’ association election or vote.
HB 2148 – Keffer – Relating to voting methods in a property owners’ association election or vote.
HB 2489 – Leach – Relating to the ability of a property owners’ association to enforce certain provisions on the lease or rental of real property.
HB 2594 – Parker – Relating to the modification or termination of restrictions by petition in certain real estate developments with certain amenities.
HB 2797 – Villalba – Relating to the operation of certain property owners’ associations.
HB 2999 – Landgraf – Relating to restrictive covenants regarding the possession, transportation, or storage of firearms or firearm ammunition and the otherwise lawful discharge of firearms.
HB 3460 – Murr – Relating to provisions in th dedicatory instruments of property owners’ associations regarding the display of flags.
HB 3539 – Dukes – Relating to the regulation of the installation of solar energy devices in a residential subdivision.
SB 283 – West – Relating to requirements for the nonjudicial foreclosure of certain residential mortgage liens.
SB 284 – West – Relating to service of citation in connection with an application for an expedited court order allowing
SB 834 – Creighton – Relating to procedures required before a condominium association files a suit or initiates an arbitration proceeding for a defect or design claim.
SB 862 – Birdwell – Relating to voting methods in a property owners’ association election or vote.
SB 864 – Birdwell- Relating to secret ballots in a property owners’ association election or vote.
SB 1168 – West – Relating to the operation of certain property owners’ associations.
SB 1244 – Burton – Relating to property owners’ association elections and votes.
SB 1535 – Burton – Relating to procedures to amend a declaration by a property owners association.
SB 1626 – Rodriguez – Relating to the regulation of the installation of solar energy devices in a residential subdivision.
SB 1852 – Nichols – Relating to the adoption of an amendment procedure for restrictive covenants affecting real property in certain residential subdivisions.
And it turns out I’m not the first person to figure this out. Not even close. Back in 2007, Robert Metcalf predicted that “Dealing with the minutia of past law, constructed by, and in the image of, the CID Industry will fail” :
At the dawn of the civil rights movement in America the existence of “Jim Crow” laws made it almost impossible to challenge any racial injustice. Why? Because the courts had “precedence” that these laws were, well, the law. What you had was “institutionalized injustice”. I believe that it is much the same today.
What had to happen to effect a cure was a raising of the national awareness to exactly how perverted and tortured the concept of justice had become, and I believe that it must happen again. Dealing with the minutia of past law, constructed by, and in the image of, the CID Industry will fail, just as that approach failed with the civil rights movement in the 1950s and 60s. Instead, the fix required things like “The Fair Housing Act” and “Affirmative Action”. Only efforts at this level will have any real chance of success in banishing these affronts to citizenship from this country.
comment at http://privatopia.blogspot.com/2007/08/public-role-in-establishing-private.html
Mr. Metcalf was the Treasurer of the Concord Crossing H.O.A. corporation in Chadds Ford, Pennsylvania, and the author of “Position Statement On Common Interest Developments”.
He appeared on “On the Commons” on July 07, 2007
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