Judge clears Madison resident | clarionledger.com | The Clarion-Ledger
I've been giving talks about this bizarre ordinance. Madison, MS, has a local ordinance making it a misdemeanor--a crime--to violate your HOA's rules.
Fred Pilot sent me this link to an article about a prosecution under the ordinance.
21 comments:
This will certainly give backing to those who argue HOAs are state actors and should be treated as such under the law.
Actually it does nothing of the sort. Certainly most would agree that incorporating community association compliance issues into the overall municipal code enforcement program doesn't make much sense. But there is no logical connection between the valid CCRs of an association and an independent, if misguided, decision by a municipal council.
What it does do is give backing to the concept that governments at all levels sometimes make bad choices, whether it is invading other countries or passing silly ordinances.
Yea, or like passing the PUBLIC function of government off to PRIVATE corporations.
Robert Metcalf
Chadds Ford, PA
Skiba, don't you have something better to do with your time--like evicting widows and orphans or sucking up to a big CAI Strategic Partner like CNA/IHG?
I wonder if the city also has an ordinance to criminally convict the HOA, the board, the directors, the manager and/or the association's lawyer, for THEIR violations of the CC&Rs or state law.
Drae Flotilla,
Thank you for your comment on this blog
DEAR Flotilla,
Thank you for your comment on this blog.
This, silly ordinance as Mr. Skiba calls it isn't the issue. It's, why have municipal leaders suddenly decided that all CC&Rs are legal by passing this ordinance that gives HOAs more powers after telling their residence for many years that CC&Rs are a private not public matter. Does this mean Americas jails will now be filled with a new class of domestic criminal and a new industry will be created. Especially the elderly or disabled who are least likely to be able to afford the hire criminal fines who planted that flower or left their garage door open or the worst one of all who installed a door knocker, jail, jail us all !
Frankly,I think we would be better off defending ourselves from the unpredictable conduct of HOAs in the criminal courts.
At the very least it cuts the rapacious association attorneys off from thier golden goose.
Come to think of it...the fact that association attorneys surrender their lucrative fees to a state prosecutor may ring the death knell of this concept. They are probably complaining louder than any of us.
Fred's comment above, " why have municipal leaders suddenly decided that all CC&Rs are legal by passing this ordinance" is the real question. And of course the answer is that one can never know the mind of a government or any other group for that matter. People occasionally make poor choices and groups of people do the wrong thing even more frequently. (almost always with the best of intentions). Sadly, the law books are littered with bad statutes, judgements overturning unconstitutional laws, and outcomes no one foresaw, (I give you the Alternative Minimum Tax as an example) because they didn't/couldn't see beyond today.
Of course we are talking about one bizarre ordinance in one small municipal government here, and not a groundswell of action across the country. Kind of ridiculous if you ask me and something that CAI would oppose if given the opportunity.
Mr. Skiba,
I speak as a victim of the HOA HORROR in this country. MY EXPERIENCE is that some of those associated with CAI and possesing CAI credentials have, and will, intentionally commit fraud upon the courts whenever they believe they will get away with it! I believe vulnerable populations are viewed by some with the industry, as their next meal ticket. When is the last time CAI has stood behind a targered, innocent homeowner when their lives are being destroyed by lies, terroristic acts and greed. If this happened to your family, what would you do? Homeless is homeless! I really do not know how you sleep at night!
Yes, people tell themselves the most outrageous things when it suits their own interests.
This guy is terrified that HOAs may actualy have to raise the bar in their shabby persecutions to satisfy the scrutiny of the criminal courts.
What an interesting set of comments. Fair enforcement of the governing documents is a primary issue in owners associations. The examples abound of bullying by boards and association attorneys.
Enforcement by owners associations is fundamentally flawed and unjust. In many cases, the boards make the rules, cite the violations of the rules, judging guilt or innocence and assess the penalties. Hasn't anyone read what James Madison wrote in the Federalist Papers? Where is the concept of separation of powers in owners associations? Tom Skiba, are you listening?
The concept in Madison ordinance is a good one, but the ordinance chose the incorrect classification of an alleged violation — a criminal misdemeanor rather than a civil infraction. Moving the judgment of guilt or innocence and the assessment of penalties are judicial functions and belong in court.
What really needs to be known is why a criminal misdemeanor was chosen rather than a civil infraction in the Madison ordinance. Is this just another example of boards of owners associations and their attorneys pushing too far? More information is needed. Madison was for James Madison — an interesting irony.
And, oh yes, Tom Skiba just doesn't understand. I hope someone gives him a copy of the Federalist Papers for Christmas.
Don Nordeen
Governance of Property Owners Associations
This bizarre ordinance as Mr. Skiba seems to be downplaying may lead to a groundswell and that is my greatest fear. Because municipalities have their own culture, networks, associations, lobbyists and often collaborate and follow each others lead. Especially on issues they commonly favor and mutually stand to economically benefit from such as the privatizing of neighborhoods and municipal services. Consequently municipalities have often delegated many of their traditional responsibilities onto the private sector as in the case of HOAs since the 1960's. In order to gain more tax revenue without the need to provide many public services through privatization paid directly by the residence and best of all, that also shelters themselves from public accountability, criticism and responsibility. If this silly ordinance is judicially upheld other municipality's will probably jump on the bad wagon and adopt similar ordinances to continue the trend of favoring corporate interests over the publics best interests.
Remember HOAs are based on the same foundation and operate under the same governance system as Americas original thirteen colonies. Which were all eventually replaced by our present constitution of the United States and we wonder why their are so many endless conflicts and issues with HOAs just like a square wheel !
Yes, this is an interesting exchange. Unless there is another commenting here, I feel I can speak for the victims. I have seen and experienced, (as a Board Member, too), industry associates and their attorneys, file knowlingly false accusations in the courts to force innocent property owners into hiring legal counsel to answer these outrageous lies. They pile on and pile on fictious legal fees, terrorize families and try to destroy reputations and careers. The ugliest cases involve the unsuspecting elderly and disabled. In addition any family that possesses "Christian values," is happy, has friends, etc., appears to be only too attractive to some of the sociopathic boards, board members, and their associates. The truth of what has been done to these families needs to be told and those responsible held accountable for these criminal acts, along with the frauds they have forced upon the courts. It should not be a matter of where in the country this has happened. These crimes should never have beeen allowed to happen, or continue to endure, in the USA!
With respect to the municipal ordinance, what a crock.
First, the municipal "violation" is not in lieu of the HOA's own remedies. So the owner can get hit twice.
Second, it isn't appropriate for the city to penalize "violations" of CCRs either criminally or civilly. The city has no stake in it other than collecting money. The city is not party to the alleged "contract".
Third, the CCRs are not themselves ordinances and may be quite arbitrary. There is no limit on scope. This effectively turns the CCRs into a new set of ordinances. These ordinances do not apply to everyone in the municipality. In essence, there is a different set of "rules" for each subdivision and thus residents in the same city are held to different and perhaps even conflicting ordinances.
Most appalling is that a majority of Board members are effectively creating criminal statutes by fiat. Aside from the ordinary absurdity that people contracted for covenants, the case in the article points out that there was no covenant against renting. A couple of Board members adopted a "resolution" which effectively criminalized renting your own property. There was no law prohibiting this nor any CCR prohibiting this.
The city may find itself being forced to fine people for "violating" solar panel, satellite dish, rain barrel, racial covenants and other HOA "rules" that are themselves contrary to law or public policy. I hope this brings more light to the problems with HOAs and property burdened with covenants into perpetuity.
This business get more bizarre by the day, yet the courts are prone to enforce the arbitrary and capricious decisions of HOA boards...What is going on, does anyone know?
The press occasionally writes some puff piece about veterans being made to take down the flag, or even this incredible situation, yet one never sees a story that attempts to capture the whole dysfunctional picture.
I went to my legislature with a group of people who had been victimized by Condo and HOA boards, and at 48 was by far the youngest person there. Nothing. The Hon. whats his name DID mention that his Condo board seemed to be doing OK...with a shrug...He also wistfully mentioned that the CAI never approached him...with a sigh...
Attention Wal Mart Shoppers, this is going to be a long uphill battle.
Mr. Reardon,
The press NEEDS to tell the unbiased truth! Please keep up with www.ahrc.com, and www.onthecommons.us, as these sites appear to have the most truthful, accurate, informative info. In addition, I am very happy to hear your family has not been forced into homelessness like far too many others. There is a movie supposedly comming out, www.associationmovie.com/html. Hopefully, those with vision and knowledge will prevail with the truth!
Albert Einstein said, "the problems we face will not be solved by those who created them." He was obviously talking about HOAs, traffic jams and failing infrastructure's that all starts at City Hall. Home and condo associations most often today exist because they are mandated by public policy to primaraly benefit the municipality and others but not the members.
One possible explanation for the endless issues is a "big disconnect in understanding from a lack of personal experience" since most State legislators, municipal leaders, property management co. owners and HOA industry attorneys don't live in HOAs by choice. Consequently a reasonable solution would be to require these public policy, industry and licensed legal professionals to live in associations themselves then the public may see some meaningful change for the first time.
The Town manager of Americas fastest growing town told me many years ago, "The reason things are the way they are in HOAs is because the public refuses to participate." How very true ! This is substantiated by the overwhelming apathy among members in meeting attendance, Board service, neighborhood and legislative participation and holding their Boards and service providers accountable to a high standard of integrity, honesty and fairness.
This debate with its endless issues and conflicts will continue in perpetuity as long as public officials allow and delegate away their citizens constitutional inaliable property rights to private entities. With the support of State legislators and legal professionals who may practice judicial misconduct sometimes in order to gain advantage and special privileges over property owners and all other private entities. All this despite the fact that this really is an old issue that our founding fathers faced, experienced and solved over two hundred years ago.
Therefore little will change, as long as the public and association members remain apathetic. By refusing to participate, organize or say no to those in the industry who actively seek to rob and plunder the owners property and other rights and re-electing those in government who support them.
With all due respect to the above comment, the statement that association members 'remain apathetic' is not correct.
Historically the homeowner turnout is quite large in the infancy of an association community.
It is only when homeowners learn what a manipulative, dysfunctional and even dangerous system HOA governances are that they cease to get involved. This is more accurately termed ANTIPATHY. The comparison of HOA governance to banana republic type governance (single party political system, no free press, no independent judiciary) has been made before. It is HAZARDOUS to your financial health to openly oppose this type of governance. You can find yourself at the pointy end of association vendors (lawyers, property managers) who threaten and litigate as a matter of course anyone 'obstructing' association business (read: threatening their own income stream).
Some draconian legislation is needed to impose constraints on the power (especially the punitive power) of HOAs. Until then it is foolish to 'get involved' with an organization that is so disparately empowered with regard to the arbitrary punishment they can impose upon a homeowner.
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