Why It’s Scary That the Mall of America Can Crush Dissent

Why It’s Scary That the Mall of America Can Crush Dissent

As I've been saying for many years...

"Mall of America’s ability to so zealously suppress the December 23 protest there highlights how, in a nation where more and more public life takes place in privatized spaces, the ability to exercise First Amendment rights has become increasingly contingent. From Zuccotti Park to Twitter, some of the last decade’s most iconic venues for dissent have been privately run. In cities like New York, privately owned public spaces have been proliferating for several decades, racing ahead of the case law that will ultimately decide their relationship to Constitutional rights. And legal experts expect social media to be a primary subject of First Amendment battles for decades to come.



“In the eyes of the law, those spaces for speech can be shut down and subject to arbitrary censorship in ways that the public square cannot,” said Teresa Nelson, legal director for the ACLU of Minnesota. “We either need to resolve to give up our First Amendment rights or get them to shift along with our changing technology.”

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This situation was, as many of you know, at the core of the Twin Rivers case that went to the New Jersey Supreme Court. Rutgers Law School Professor Frank Askin brought the case on behalf of homeowners who tried to establish freedom of expression rights on the private property of their homeowner-association run private community. I was the expert witness for the owners, the Committee for a Better Twin Rivers. And a similar situation exists in many shopping malls, which in many communities are the only public spaces available to contact large numbers of people for political purposes.

South Carolina lawmakers prepare to tackle divisive HOA issues | The Sun News

South Carolina lawmakers prepare to tackle divisive HOA issues | The Sun News

"A committee appointed by the South Carolina legislature to study contentious issues surrounding homeowners associations (HOA) identified numerous problems that require the state assembly’s attention, but failed to agree on solutions for key issues. There was no consensus on whether HOA managers should be licensed or certified, and the panel was split on the question of how long developers should be allowed to control an association."



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I think it's great that the SC legislature decided to set up this committee, and if you read the details you can see that they tried to address a number of serious issues. But when it came to solutions, they couldn't agree on some of the most basic things:

"The panel was specifically tasked with reviewing five categories: whether HOA governing documents should be disclosed to homebuyers, education for homeowners and board members, manager certification, the time period of a developer’s control of an HOA, and the need for a uniform planned community act. The panel did agree that HOA governing documents should be disclosed to prospective buyers, particularly for new home sales."


They managed to agree that prospective buyers should actually be able to see the contents of the rules they would have to live by. Wow. And what is the meaning of "particularly for new home sales"?  Why would people who buy an existing home be less entitled to know the terms and conditions?

State legislatures around the country take different views of their role with respect to CID housing. There are some states, such as California, where the legislature, guided to some extent by the California Law Revisions Commission, understands the need for regulation of HOA and condo boards. Some other states are more or less in that same camp--Maryland, Virginia, Nevada, Florida, Illinois--I'm not saying that these states have gotten everything right, but at least they have track records of dealing with significant issues and actually passing legislation. Then, on the other hand, you have these states where they don't seem to get the picture, or where the balance of political forces is such that they can't act.  For example, in Arizona it seems that the pattern is always a bunch of separate, piecemeal bills rather than a coherent package.

There are millions of people living in associations run by their untrained neighbors and often unlicensed and untrained property managers. Developers frequently leave associations in a bad financial position. Many if not most associations have inadequate reserves. There has to be a coherent public policy framework with adequate institutional support and oversight, or the owners can be placed in serious jeopardy.  The fact that the South Carolina legislature, at the dawn of the year 2016, can't  get itself together to resolve some pretty basic issues, such as the obvious need for property managers to be licensed, is frightening.

Supreme Court already ruled that feds rightly own occupied refuge | OregonLive.com

Supreme Court already ruled that feds rightly own occupied refuge | OregonLive.com



"Occupiers of the Malheur National Wildlife Refuge question whether the federal government has unequivocal legal rights to own and manage that land, without regard to the wishes of local property owners and ranchers. Improbably, the U.S. Supreme Court has ruled on exactly that question, specifically regarding the lands of the original Malheur national refuge -- twice. Those rulings by the nation's highest court, in 1902 and in 1935, found that the federal government has an incontrovertible claim to the refuge's wetlands and lakebeds, dating back to the 1840s, when Oregon was still a territory. "Before Oregon was admitted to statehood, the United States is shown to have acquired title which it has never in terms conveyed away," Justice Harlan Stone wrote in 1935."

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The bonehead terrorist squatters claim they have "teams" looking into who owns the land, so they can give it back to them.  But the land has been in federal ownership since the 1840s.  The only people with any legitimate claim to that land, other than the federal government, would be Native Americans--if I'm reading the maps right, the Northern Paiute. But there appear to be no scruffy, ignorant, white guys in the chain of title to the Malheur National Wildlife Refuge. These clowns are squatters. Cliven Bundy and his sons are squatters and deadbeats. They have been grazing their cows on federal land without paying for it. People who use federal land for grazing, logging, mineral extraction get a much better deal than they would if the land were transferred to private ownership. They'd be paying some corporate landowner through the nose.  But these bums won't even pay the low rates the feds charge. Instead, the Bundy family has fabricated a bunch of tall tales that give them imaginary title to federal land. But the Paiutes? They may have a real claim. Native people in Alaska, Canada, and elsewhere have actually settled such claims with national governments.

Last defendant in massive HOA scheme sentenced to prison | Las Vegas Review-Journal

Last defendant in massive HOA scheme sentenced to prison | Las Vegas Review-Journal



"The last defendant in the long-running investigation into the scheme to take over and defraud homeowners associations was sentenced to federal prison Tuesday. Stephanie Markham, 57, who now lives in New York, was ordered to serve 15 months behind bars and spend three years on supervised release after prison for lying about her role in the massive scheme. U.S. District Judge James Mahan also ordered Markham to perform 100 hours of community service. Her sentencing officially ends the largest public corruption case federal authorities have brought in Southern Nevada. More than 40 defendants, including lawyers and former police officers, either pleaded guilty or were convicted at trial. The high-profile case, which lasted more than eight years and led to several deaths, was overseen by the Justice Department's Fraud Section in Washington. The investigation became public in September 2008 when the FBI, Las Vegas police and IRS conducted raids across the valley."

The State of Cooperative and Condominium Law in 2015 | New York Law Journal

The State of Cooperative and Condominium Law in 2015 | New York Law Journal



Here's one interesting change in application of the business judgment rule. Even if the owner can show favoritism by the board of directors, they have to prove prejudice to their interests as a result of the favoritism



"In South Tower Residential Board of Mgrs. of Time Warner Center Condominium v. The Ann Holdings,6 the First Department subtly adjusts the standard for self-interest on the board. The court wrote, "However, even if, arguendo, plaintiff engaged in some favoritism…, defendant failed to show prejudice therefrom." This is a clear carve out from previous doctrine, but it leaves unclear whether a challenge to a board for violation of the business judgment rule requires showing for any violation that there is both a violation and resultant prejudice."

Thompson's Station residents sue over TV/Web service

Thompson's Station residents sue over TV/Web service



"A group of Thompson's Station residents is suing developers and a telecommunications company they say schemed — along with DirecTV and their respective homeowners' associations — to give the tiny Internet service provider a monopoly over their growing neighborhoods. Attorneys representing the homeowners are seeking class action status for the lawsuit, which was filed in federal court on Tuesday. It alleges that the developers of the town's Tollgate Village, Bridgemore Village and Canterbury subdivisions made arrangements with Crystal Clear Technologies to be the neighborhoods' sole Internet and TV-service provider."

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I haven't read the complaint so I don't know the details beyond what is in this story. However, historically developers have often made deals with cable TV companies that owners later found unsatisfactory.  One common practice was for the cable company run their cable up to all the lots in the subdivision at no charge to the developer, in exchange for the developer putting a provision in the CC&Rs that would prohibit all residents from using TV antennas. When HOAs enforced these bans, they would often think it was for aesthetic reasons, which I suppose is part of it too.  But when satellite came along and HOAs tried to ban satellite dishes as "antennas," the satellite industry persuaded Congress and the FCC to stop that. In this case, the owners are claiming that they are locked into paying too much for poor service from a small provider, when they could (they say) make a better deal with a larger company.

Thanks to the person who sent me this story--I hesitate to put people's names up here unless I know it is OK with them.

Florida: New Bills Impacting Homeowners’ Associations Filed for 2016 Legislative Session

From the Florida Condo and HOA Law Blog:

Here is your morning engine-starter:

"HB 7031, Relating to the Marketable Record Title Act (MRTA) has been filed by the House Civil Justice Subcommittee.  Specifically, the bill provides that covenants and restrictions of homeowners’ associations will not expire because of MRTA. This will save HOAs thousands of dollars by not having to “preserve” their covenants and restrictions or “revitalize” them if they expire. At this time, there is no Senate companion bill and it remains to be seen whether the title industry will support the bill. CALL is in support of this bill and we will keep you updated on its progress.

"Another bill of interest to HOAs, which some owners will like and others will not, is SB 1122 by Sen. Hays, Relating to Homeowners’ Associations. The primary emphasis of the bill is regulation of HOAs by the Department of Business and Professional Regulation. Among other things, it will:  (1) require all homeowners’ associations (HOAs) to pay $2.00 per parcel to the Department; (2) require mandatory binding arbitration of certain HOA disputes, including covenant enforcement, assessments, and official records; (3) increase the penalties for willful failure to withhold official records; and (4) change the triggers related to when a developer must turn over control of the association to the parcel owners.

"The 2016 Legislative session begins on January 12, 2016."

http://www.floridacondohoalawblog.com/2015/12/articles/assessment-collection/new-bills-impacting-homeowners-associations-filed-for-2016-legislative-session/

Suburban office parks are dying -- Mother Nature Network

Suburban office parks are dying because young people don't want to drive there | MNN - Mother Nature Network

There are several reasons, one of which is that urban young people are not getting driver's licenses like they once did.  This is an interesting study and you can read the whole thing here.

"Suburban office buildings that have become obsolete due to car-centric and removed locations — and which do not have some factor that will remedy these traits in the future (such as a planned transit station or new highway exits) — are unlikely to achieve market-average rents as leases roll. In extreme cases, properties that are incurably obsolete — primarily those at undesirable locations or with building sizes or for plates that tenants now find either too large or too small — may never lease again."

Bad bargain? Manufactured homeowners feel the financial strain | PBS NewsHour

Bad bargain? Manufactured homeowners feel the financial strain | PBS NewsHour

STEPHEN FEE: She bought this three-bedroom manufactured home for $113,000 dollars in a town where the median home value is $500,000.



CARLA BURR: “I chose to move here because it was a beautiful house. And I thought, man I could retire here.”



STEPHEN FEE: Now 61 years old, Burr – and her home – may need to move. While she owns the home — she made the purchase in cash — she doesn’t own the land underneath.



Every month, Burr pays rent to a property manager. Over the past ten years, that lot rent has gone up 30 percent, from $740 a month to $1,022 a month.



CARLA BURR: “I had no clue that the rent was going to go up the way it did. I mean, it’s to the point now where it’s more than half my Social Security. I would love to stay. And I would love to keep it right where it is. Because everything I have is here. All my church is here, my family’s here, everybody’s here.”

Armed protesters take over wildlife refuge in Oregon - CNN.com

Armed protesters take over wildlife refuge in Oregon - CNN.com

"(CNN) A group of armed protesters have taken over a building in a federal wildlife refuge in Oregon, accusing officials of unfairly punishing ranchers who refused to sell their land, a spokesman for the group told CNN. The protesters occupied part of the Malheur National Wildlife Refuge near Burns after a march supporting Dwight and Steven Hammond, two ranchers who are convicted of arson. Prosecutors said the Hammonds set the fire, which burned about 130 acres in 2001, to cover up poaching. The father and son were sentenced to five years in prison."

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This is like something from The Walking Dead, where groups of armed men take whatever they want, based on some crazy moral code.  Now this is happening in Oregon. And among these "I'm a law unto myself because I have an assault rifle" wanna-be warlords you will find two sons of Cliven Bundy, the squatter on federal land who provoked a standoff with federal authorities in May, 2014.  In that confrontation, people were aiming rifles at federal officers, and the Obama administration made an enormous mistake by letting them get away with it. Now, predictably, they are at it again.  Will the administration back down again, or finally do something about it?  I don't see how people like this can be allowed to arm themselves and take over federal property, and then get away with threatening law enforcement.

The Hammonds are not there. They say they are going to surrender themselves and serve the prison sentence that they deserve.  They slaughtered a herd of deer on federal land and then set a fire that burned 130 acres to cover up their crime, and there were witnesses to that, including the teenager they enlisted to start the fire for them.   They were convicted in a jury trial. So the Hammond case really has nothing to do with this so-called protest. These militia thugs just want to make the Obama administration back down again, they are using the Hammond case as a pretext, and I suppose there's a good chance that the administration will do nothing once again, in the hope of avoiding bloodshed. But sooner of later, these people have to be confronted.  Federal lands are for public use, and we can't allow people to take it by force for their own use and profit. That's what Bundy did--he used federal land to graze his cattle for free. The Hammonds used it for poaching. Now the militia goons are squatting in the administration building of a federal wildlife preserve. Enough. And take their guns.

The larger issue here is that people like the Koch brothers want to take federal land for their own use, and it seems that these highly publicized confrontations may be part of that effort.