CAI's objections to AARP HO Bill of Rights
I have read the full 3 1/2 page letter from Tom Skiba to AARP objecting to the AARP Homeowners' Bill of Rights, drafted by attorney David Kahne. I see no reason to amend my earlier comments that were based on the summary I linked to from Ungated, the CAI blog that Tom writes.
To sum up, here are the main points of the AARP document:
Security against Foreclosure
Resolve Disputes without Litigation
Fairness in Litigation
Be Told of All Rules and Charges
Stability in Rules and Charges
Oversight of Associations and Directors
Vote and Run for Office
Reasonable Associations and Directors
An Ombudsperson for Homeowners
CAI objects to this. Why?
They don't like the process of developing the document because it didn't include CAI or other industry representatives. I have already addressed that issue. And they don't like the substance because it involves increased state legislation, and more state oversight of HOA board activities. It imposes limits on what HOA BODs can do to people. I think it needs to be pointed out that this type of reform legislation really limits the powers of the attorneys and managers who constitute CAI. Because make no mistake about this: for all this talk of local democracy and consumer choice, the real power in the HOA universe is in the hands of attorneys. They are the ones who exercise the powers of the BOD, when owners don't go along with the program. And that is the power--lawyer power--that gets limited by state regulatory legislation that gives owners some rights. What David Kahne is trying to do (among other things, but centrally) is give the owners some way to stand up to the association's attorney. He does that by giving them some enforceable rights and relief from the boilerplate language that puts the owners in an essentially powerless position from the moment they take the deed to their property.
CAI also want to get AARP corralled into the cozy little UCIOA amendment process that the Uniform Law Commissioners are undertaking (with a CAI stalwart as the ABA advisor to the committee). The AARP project, because it is apart from that ULC process, could throw a monkey wrench into creating an industry-friendly "new" legal structure that would leave the current power dynamics intact.
Here's how I think CAI wants things to end up: The BODs would have nearly absolute power over homeowners, whose only options, if they feel they have been mistreated, would be to elect a new board or sell their home and move somewhere else. The association attorney and property manager would (and do) control the BODs. CAI trains and organizes the attorneys and property managers. The states would require certification of property managers. CAI would provide that certification. The out-of-control owner-run insurgent groups would be shut out of the policy process and branded as loons and nutcases, and their websites would be shut down. The press would get off the "HOA abuses abound" angle, and instead go to CAI for comment on community association issues, and print the PR line. Particular complaints about abuses would be conclusively presumed to be either a) lies and distortions spread by neighborhood malcontents who couldn't get along with Mother Theresa, or b) unrepresentative anecdotes that fail to capture the true level of mass satisfaction with HOA life. And the state legislatures would pass UCIOA and move on from HOA legislation to other matters, like selling the state tollway system to Spanish and Australian corporations to finance free health care and early childhood education for all. Happy ending. That's the desired endgame as I see it. Maybe Tom can correct me if I am wrong.
Here's the problem with that scenario: things were basically like that in the early 1990s, but things have changed. Too many people are now aware of what's going on in Privatopia for that status quo ante to be reinstituted. When a mega-interest group like AARP weighs in, and when half a dozen state legislatures have reform legislation on the books or in the hopper, and when I can name you probably two dozen law professors and at least that many reporters who understand this issue area very well...when all this happens, it is too late to silence or co-opt all the dissenting voices and have everybody speak with a single tongue.
Change is happening right now, and I don't think it can be stopped. I don't know if all the change will be for the good, and I have been critical of some of the reform legislation. But it is coming. And that AARP document is going to give owner rights a much bigger place at the table than they would have had if the industry had their way. That's a good thing, not only for owners but for the industry, if they would just take the long view. I wish I could get CAI to understand that some of their own policy positions are actually adverse to their own long-term interests. But I'll leave that for another post.