Kannapolis subdivision divided over homeowners association - Independent Tribune - Concord and Kannapolis: "ANNAPOLIS - A Kannapolis subdivision that residents say was shorted on some amenities and infrastructure by its developers is now seeing some turmoil over a homeowners association formed for the community."
----------------
But this is a voluntary association, so it is questionable whether they can get it organized. That's why the industry makes them mandatory. That's also why the libertarians who keep touting HOAs as examples of voluntarism are so, so, so wrong.
3 comments:
This is clearly a choice between imperfect alternatives — neither one is satisfactory. A new alternative is needed.
Typically, when the developer has title to all the lands, the developer can record restrictive covenants to define the common interest development, to place restrictions on the use of property, to establish an owners association for the administration of the restrictive covenants, and to establish basic governance of the association. Typically the covenants give the developer the control of the board during the development until turnover, thus creating an oligarchy. This is further reinforced by the initial bylaws which are also written by the developer. While it may appear to be democratic because of an election of directors, the governance does not include the other democratic principles which are necessary for a democratic form of government (administration and governance). See Democratic Principles for a list which include separation of powers, independent judiciary, checks and balances, etc.
After turnover, the association and its members are stuck with the oligarchy since few members have the talent, resources and energy to rewrite the governing documents to incorporate the democratic principles. Since power remains concentrated in the hands of a few with minimal checks and balances, abuses are bound to occur — sooner or later. Read James Madison's writings in the Federalist Papers.
On the other hand, creating an owners association by voluntary means requires approval of all property owners in the land development for the necessary restrictive covenants. The covenants are required to make membership in the association mandatory and to authorize the assessment of dues on the property units. Getting unanimous approval is certainly difficult. But it is also difficult to craft the content for the restrictive covenants. All difficult, as Dr. McKenzie states.
I believe the answer lies in good legislation that will limit the authority of the developer and require democratic provisions in the restrictive covenants for any common interest development. It is a matter of public policy. While this may be well and good as an idea, there has not been a groundswell of interest by individual members of owners associations to collaborate, via the internet, on defining the content for the "good" legislation. And, of course, "good" legislation that incorporates democratic principles would likely be opposed by CAI and the CID industry.
Don Nordeen
Governance of Property Owners Associations
Don Nordeen wrote: "While it may appear to be democratic because of an election of directors, the governance does not include the other democratic principles which are necessary for a democratic form of government (administration and governance). See Democratic Principles for a list which include separation of powers, independent judiciary, checks and balances, etc."
The solution that would include all of these principles has been there all along, hidden in plain sight: public (and not private) local government organized as political subdivisions of the state. If you want public local government, you must advocate for it and not reform of private local government which cannot provide the checks and balances you seek via "reforms" no matter how well intended and crafted.
This could be accomplished via annexation into an existing local government entity or by the formation of a special district.
I agree with Mr. Pilot with regard to municipal government providing the democratic principles needed. But the concepts for common ownership of common facilities in a neighborhood are excluded in municipal government. This is fundamental in Common Interest Developments (CIDs).
The condominium concept is based on common ownership. Common ownership of community facilities such as meeting rooms, lounges, swimming pools, tennis courts adds to the value of each condominium, but also limits the potential purchasers to those who want condominium and the facilities.
Those concepts regarding common elements as an integral part of residential property are similarly attractive to some buyers. People may want to live in a gated community with additional security.
On the other hand, it seems clear that the management of an extensive facility with many common elements (golf courses, restaurants, beaches, marinas, etc.) is well beyond the capability of a volunteer board. A business operating those kinds of facilities would have a board that is much more knowledgeable and capable in business management. Since the owners associations tend to be organized with the corporation model with property owners associations (POAs) created by the restrictive covenants, the board becomes an oligarchy. Some boards inevitably abuse their authorities.
Also inevitably, conflicts arise. Currently, effective and low-cost means of resolving the conflicts do not exist. Attempts are being made with ombudsmen, administrative courts, separate review groups, etc. But none appear to be satisfactory. Because of the high cost of litigation, only a few owners use that method. Often, appeals to a higher court are required because the case law is still evolving for CIDs and POAs.
Since many CIDs with POAs exist around the country, legislation to make them workable is required. Perhaps that legislation should also restrict the scope of future CIDs and POAs. The legislation might adopt Mr. Pilot's recommendation about creating a special assessment district as a replacement for the CID. I believe there is support that the governance model should be based on municipal government, not corporate governance.
Again, my conclusion is that those knowledgeable should be working together to define that legislation. But there doesn't seem to be that interest.
Don Nordeen
Governance of Property Owners Associations
Post a Comment