The founders realized that in order to establish a government among men they would have to obtain the consent of the governed. In other words, in order to govern a group of people one needs their permission. So where and how did we go off the straight and narrow when it comes to getting the “consent of the governed” in the millions of residential associations in the US? What I find bewildering is that while the “governed” in HOAs and condos far outnumber the “governors”, they do not face much resistance.
Julio Robaina joins us On The Commons. Julio, a former state of Florida Representative spent time traveling around the state, holding hearings trying to understand the extent of the problems and the reason for the discontent in Floridas HOAs and condominiums. He listened to the owners’ stories and their ideas and suggestions of how to “fix” the problems. Once educated on the issues and armed with information, he drafted his bills designed to protect the rights of the homeowners residential associations. He now co-owns a management company so he is still very much involved. We talk to Julio about what he learned and whether the laws and protections put in place by him several years ago are still enforced now.
Great to hear from Julio Robaina, and glad to hear Jose Pazos is a candidate in the special election. Florida needs Legislators that represent the interests of their constituents, not just special interests in the real estate sector.
Agree with almost everything Julio talked about — get involved, make friends with the media, find strength in numbers, be clear about goals and propose solutions to Legislators.
But, like Shu, I disagree with the often spoken statement, “Association living is here to stay.”
No, it’s not. It’s up to concerned citizens and voters to put an end to creating more and more communities ruled by HOA/condo/co-op governance as we know it. Americans need to be vocal about their distaste for HOAs, because they unnecessarily over-regulate the lives of owners and residents.
And I know darn well that the majority political party in Florida and many states across the U.S. hates regulation. So it’s ironic that Americans are more regulated than ever, at the hyperlocal level, in their own homes by HOAs (including condos and co-ops).
Like Shu, I know it is possible for a variety of different housing types to exist without privatizing governance in the form of a developer-centric corporate association, and without pages of onerous CC&Rs that serve no beneficial purpose and, in fact, tend to contradict good public policy.
It must be recognized that association-governed communities consist of three distinct layers.
1. The physical aspect of the common interest community, which, by definition, includes at least one portion of property that is either owned or maintained in common. In industry jargon, this is the “built environment.”
2. The restrictive covenants (CC&Rs) that are imposed upon individual property owners, and that “run with the land,” meaning that these rules pass on to each new owner when the property is sold, until such time that they officially expire.
It is this layer of association-governed communities that is considered to be a mutual contract, agreed upon by owners and residents. This is also the source of restrictions imposed by landowners and developers upon private property rights and individual liberties.
3. The governance body of common interest communities, which often includes private entities such as homeowners’, condominium, or cooperative associations (collectively, I will refer to these as “HOAs”), but may also include public entities such as special tax districts.
Each of the three layers exists independently of the other two. If the HOA disappeared tomorrow, the built environment and the CC&Rs would remain.
Special Districts, chartered as public units of government and constrained by U.S. and state Constitutions, can and do exist to administer and fund maintenance of community infrastructure and recreational amenities, or to provide other public services.
Unfortunately, in most of the large common interest communities, HOAs coexist with Special Districts, with HOA authority primarily limited to enforcement of CC&Rs — the one aspect of governance that Special Districts cannot legally undertake, due to Constitutional constraints applicable to governmental entities.
But the HOA is actually a non-essential layer of governance, and, I would argue, the source of 99% of neighborhood abuse, conflict, and dysfunction.
The HOA is about as useful as your appendix or your tonsils or your wisdom teeth. For most people, one of these three body parts will cause them a lot of pain and trouble, and, since they are not needed, they will be surgically removed. The same goes for the HOA — once you shift public services to public entities, the HOA becomes irrelevant and an irritant. Get rid of it.
Ditto for many of the unnecessary and unconscionable CC&Rs — many of these need to be challenged, just as racial and religious restrictions were challenged and eventually made illegal by Constitutional amendments.
It’s time for surgical removal of what ails this country at the local level.
This was sooo informative–and uplifting. So few legislators “get it” and it lifts my spirits to find a few who do. Thank you, Shu, for finding and supporting Julio and Jose.
I also agree with Debra that HOAs don’t necessarily have to be here to stay. She wrote, “Special Districts, chartered as public units of government and constrained by U.S. and state Constitutions, can and do exist to administer and fund maintenance of community infrastructure and recreational amenities, or to provide other public services.” We have those special road districts in Alaska that can take care of the infrastructure–these special districts easily can take over the infrastructure in Associations when local governments blow off their responsibility (what people’s taxes are supposed to support) regarding roads and such. Condos need some from of governance–but like Shu says–why can’t it be the owners telling a manager what they want?
As far as single-family homes, the CC&Rs can stand witout an association and if a someone doesn’t think another is following the rules correctly–they can sue them–one neighbor against another if they feel that strongly about dust on a mailbox. But not forcing all the neighbors to go after a single neighbor–I never want to sue my neighbors over petty stuff like that–including if they don’t pay their assessments and I don’t appreciate boards who do it in my name with my money.
When I was on the board, I tried to tell everyone “You don’t lose anything when someone doesn’t pay. In fact, with interest, you actually earn money.” How? Simple. You have a lien on the house for the assessment plus interest (not fines–I agree they ought to go away). Eventually, someone will want to sell the house but it can’t sell without the lien being paid off–with interest–so the association gets all the assessments plus interest. For the few that are abandoned–even if you have a collection agency handling it–no one can get the money. Not the attorney and not the association. –so what have you gained by sicking aggressive collection lawyers on your neighbors? Nothing–no one can collect so you have wasted association money by using collection attorneys because now you have to pay them for the work they did. See? Collection agencies cost associations money, they don’t earn money. I just wish we could show them the facts..but board members buy the hype. Sigh.
Good program. Thanks