Fred Fischer weighs in:
You may share the following with anyone. The following is my response comments to the Privatopia story of, Monday, January 02, 2012 Do owners believe CC&Rs are contracts, part trois...
For CID housing to continue to exist into the future and be sustainable will require a major shift away from its present use of adhesion contracts imposed upon property buyers. Therefore a legal shift needs to occur at build-out from the original intent of the developer to manage and sell his properties. To the owner/members so that they can manage and sustain what is then their properties and responsibility.
We have long understood as Tyler stated,….the real problem which is that community associations are created mostly for the benefit of municipalities and developers… Which has resulted in property owners sending a loud message of un-support for the private governance imposed upon them by their local municipalities that burdens them with high liability and no protections. By striping members of their basic liberties and the use and enjoyment of their own properties that treats members like renters and children who have to ask permission to do anything. Even though the member’s private properties are not owned by the HOA entity yet the contract authorizes the HOA absolute control over many aspects of it.
To say that all housing associations should be abolished is not doable presently especially for complex types of CIDs which have utilities company’s, private streets, golf courses, high rise condos, apartments, airparks and commercial property etc. . However they could be converted to help reduce the substantial conflicts and liabilities that automatically and inherently come with privatized housing governance in a few basic ways. First existing and new non complex CIDs could be converted to special districts or other governance forms that are less expensive to operate while retaining the member’s property and other rights. Second the absolute control over the private properties must be largely eliminated in order to reduce the liabilities and conflicts. Third only CC&Rs that truly ‘touch and concern the land” such as structural or permanent changes should be created instead of subjects like refuge containers, signs, animals etc. Fourth require State oversight and licensing of association management firms and others. So CID members can hold accountable those who collect and manage member’s funds and provide advice and servicers to Boards.
Now maybe we can get past the obvious that CC&Rs are enforceable and that most people understand that they are obligated to pay for many of the amenities and services found in their CIDs. Furthermore I agree with Tyler that we need to spend far less time fretting over many of the HOA issues that we already well understand and start making some substantial reforms that will make CID housing, property owner friendly and financially solvent today and into the future. Which will require the property owner’s participation at the creation table to include their best interests and not just those of the municipalities, developer and others. Tyler is also correct when he said that …all of us should be discussing how to help owners save whatever remaining equity they have, and then second, how to convince government to quit mandating for sale housing that will inevitably become obsolete because it has a form of governance that cannot fund its operations--just for the sake of additional property tax revenues.
Finally at the end of the day no one can say we don’t understand why housing association governance is economically collapsing or so controversial. Because when basic liberty and the use and enjoyment of one’s property becomes absolutely controlled by others, to the point that a door knocker or flower pot can’t be installed without committee approval with the consequence of a fine and foreclosure if disobeyed. We have just created a new form of tyranny masqueraded as a housing association so that others can earn an income or profit over the conflicts and this needs to end NOW. Or CID housing will continue to economically and socially collapse and then tens of millions of property owners will possibly be living on the streets.
Thanks, Fred Fischer