Saturday, April 30, 2016

Colo. Court Case Puts Spotlight on Special Districts That Issue Munis | The Bond Buyer

Colo. Court Case Puts Spotlight on Special Districts That Issue Munis | The Bond Buyer

"A broad ruling by the Colorado Court of Appeals in a case of a developer's egregious fraud has sent lawyers to the state's General Assembly for legislation to protect existing special districts that issue tax-exempt bonds...The case involves a high-profile developer, Zachary Davidson, who used sham contracts to make him and five associates organizers or "eligible electors" who formed a special metropolitan district in Greenwood Village, Colo. that issued almost $35 million of bonds now in default. Davidson included nearby condominium purchasers in the district and obligated them to pay taxes to help pay off the bonds, even though the condo owners were unaware they were in the district or that bonds had been issued. Davidson stole millions of dollars of bond proceeds for his personal use and was eventually indicted on 20 felony counts by an Arapahoe County, Colo. grand jury. He eluded law enforcement for months and ultimately committed suicide by hanging himself from a tree in Withlacoochee State Forest in Florida at age 46. After several years of litigation, the Colorado Court of Appeals issued a ruling on April 21 favoring the condo owners' Landmark Towers Association, Inc., ruling in part that Davidson used sham contracts to give him and his associates control of the special district and the bond issue."


Here is a link to the opinion.  The court ruled, "In sum, because the TABOR election was conducted illegally —with the participation of ineligible voters and without constitutionally required notice to eligible voters — the District’s taxes to pay the bonds were levied illegally. Pursuant to TABOR’s refund provision, the District must refund all illegal taxes paid with ten percent annual simple interest. Id. at § 20(1). The Landmark buyers are also entitled to an order enjoining the District from levying any further taxes without proper voter approval."

So now the lawyers and people buying these special district muni bonds are afraid that other people will head for court to unwind the tax obligations imposed on them by these special districts.  They want the Colorado state legislature to save them from more litigation. As I have written before in connection with Florida's special districts, some of these arrangements are so undemocratic and autocratic that they make HOAs look like the Golden Age of Pericles.

And the Colorado special district debacle has the potential to shift the national picture on these "dirt bond" districts:  "The Treasury and IRS are now proposing rules to expand that test to add two new requirements. Under rules they proposed February, a political subdivision that can issue tax-exempt bonds, would also have to serve a governmental purpose and be governmentally controlled "with no more than an incidental private benefit. The proposed rules have met with a firestorm of criticism from muni lawyers who have warned they would threaten existing special districts and potentially millions of dollars of bonds."

Stay tuned--this sort of thing flies under the public's radar, so you never know what a state legislature will do with it.

Rauner turns to privatization push during second year in office - Chicago Tribune

Rauner turns to privatization push during second year in office - Chicago Tribune

Illinois Governor Bruce Rauner is a private equity billionaire with no political experience and no idea what he is doing, except that he hates the very idea of government and public employees and unions and wants to destroy all three.  He used his personal wealth and his connections to other fat cats to basically buy the job.  He funneled millions of his own money into a record-breaking tsunami of money and outspent Pat Quinn almost two to one.  He also had the help of the Chicago Tribune, which is relentlessly anti-union and pro-big business, and the Chicago Sun-Times as well (there were some interesting financial connections there).  His big idea is to turn Illinois into a Republican state. He wants to destroy the Democratic Party's political base. Destroy unions, the tort system, public employee pension systems, and the workers' compensation system.  Let cities and school systems go bankrupt so they can break their contracts with unions. Enact term limits to get rid of powerful Democrats in Springfield. It's basically Scott Walker in Wisconsin without the charm.

But Democrats won big in both houses of the state legislature, and they won't commit political suicide by abandoning the people who voted for them. So how was Rauner to impose his "turnaround agenda" on the state? Simple: refuse to sign budget bills, starving social service agencies and the public education system of funds. That's what he has been doing since the day he was elected. Poor people, the disabled, the elderly, and students will suffer until the legislature turns the whole state over the Rauner and his party. Social service providers are laying people off and going out of business. Chicago State University just laid off 1/3 of it's staff.  And the suffering goes on, and on, and on.

Rauner  is one of these American corporate tough guys who proves how tough he is not by suffering himself, but by enjoying the suffering of the little people.

Now his big idea is to privatize every single state function that he can.  There seems to be no principle behind this--no set of guidelines for which services would be better to privatize and which to keep inside government.  And of course he won't work with the Democratic Party that controls the state legislature, so this is going to be done through executive action.

The risks here are obvious. People may end up paying more for less. The opportunities for corruption increase. Wages will be lowered and people will be laid off, leading to consumers having less purchasing power, which may hurt the state economy.

I wish I could find some silver lining in the so-far disastrous Rauner administration, but I can't. This man is just destroying everything he can't control, and he doesn't seem to care who gets hurt.

Friday, April 29, 2016

Master-Planned Communities Look to Innovative Future - Urban Land Magazine

Master-Planned Communities Look to Innovative Future - Urban Land Magazine

"One of the notions presented to the panel was to offer health care for MPC communities. “If a company has 10,000 employees and can offer insurance to all of them, why can’t an MPC insure the 5,000 people in the community?” Cecilian asked. “When we consider millennials today, the two great concerns are health care and student loans. Why not look at the residential community to provide group health insurance? It’s a very interesting concept, especially with what’s happening in tele-medicine. You could make group health insurance part of the real estate package...Among the other topics considered: raising equity or debt through crowdfunding and providing for driverless cars. Crowdfunding in MPCs could be used to support community amenities, create retail options earlier, or construct revenue-producing venues such as golf courses. “Crowdfunding is coming and hitting real estate very quickly,” said Kaufmann. “Smaller-scale projects could be crowdfunded. There is a lot of money out there and it’s not that hard to organize. You should think about it for some pieces of the community.”


Notice how the development industry always uses the fuzzy, feel-good word "community" instead of explaining exactly how your HOA, run by unpaid, untrained volunteers, would somehow become responsible for your health insurance.  And crowdfunding instead of assessments to pay for "community amenities" means that your private streets and the pool would be dependent on people chipping in whatever they want by clicking a button on a website.  

What could possibly go wrong with this bright, shiny future? 

Thursday, April 28, 2016

Nevada Supreme Court rules in favor of investors, banks in HOA fees case | Las Vegas Review-Journal

Nevada Supreme Court rules in favor of investors, banks in HOA fees case | Las Vegas Review-Journal: "CARSON CITY — The Nevada Supreme Court on Thursday ruled in a long-awaited dispute over homeowner association dues in super-priority lien cases, finding that Nevada law does not allow for the collection of costs and fees in addition to nine months of back-owed assessments.

The unanimous ruling came in an appeal brought by Horizons at Seven Hills Homeowners Association against Ikon Holdings.

The ruling is a major victory for investors, banks and others who acquired the foreclosed properties. It is a big loss for homeowners associations, collection agencies and others who sought additional compensation in the super-priority lien process.

The super-priority lien in Nevada law allows associations to recover nine months’ worth of assessments. But a legal dispute has been ongoing for years over whether fees and collection costs could be included as part of the lien."


Superlien litigation (and legislation) is hot right now. Lending institutions are slugging it out with the community association industry over the wreckage of people's lives.

Brannon Hill condos allowed 30 days to remove trash |

Brannon Hill condos allowed 30 days to remove trash | "Residents of a trash-filled and partially burned-down condo complex in DeKalb County are being given 30 days to clean up.

The Brannon Hill homeowners’ association and the county agreed in court Thursday to allow the community to remove debris, worn mattresses and tires strewn across parking lots before the government considers stepping in."


Another crumbling condo development has become a burden on local government to the point where it may be declared a public nuisance.

Tuesday, April 26, 2016

Miami condo owners confused by election monitor | Miami Herald

Miami condo owners confused by election monitor | Miami Herald

"But what L√≥pez and others involved in the election did not know was that Hidalgo is not a monitor appointed by the Office of the Condominium Ombudsman. In fact, since 2010 that office stopped assigning Hidalgo as an election monitor after stating that she “blatantly ignored” instructions prohibiting the delegation of responsibilities, misrepresented not being at a meeting and other issues. The ombudsman concluded the March 31, 2010, letter by stating, “your actions, lapses in judgment, and inattention to duty… have seriously undermined and diminished the trust and confidence placed in you and reflects adversely upon the election monitor program administered by this office.” Her identification badge was revoked."


This is mind-blowing. This individual is still running around charging condominiums for monitoring elections. Here is her excuse. You will love this:  “I never say I am certified. I always say I was certified. Little words that are specific and powerful in any court,” said Hidalgo, who owns Luminary LLC, a company that supervises condo and co-op elections.

Monday, April 25, 2016

China Homeowners Live in Legal Limbo - WSJ

China Homeowners Live in Legal Limbo - WSJ: "SHANGHAI—A land-title dispute in southeastern China is highlighting a major uncertainty over homeowner rights in a nation where the government owns all the land."


This situation has been the subject of several major revisions in the law over the last twenty years or so. It's a tough one to resolve. The national government wants to have a thriving real estate market, but local governments want to own and lease the land. That is a gross oversimplification but it will have to do for now.

Peterson: East Bay HOA's heavy-handedness leads to bigger conversation, expert says - San Jose Mercury News

Peterson: East Bay HOA's heavy-handedness leads to bigger conversation, expert says - San Jose Mercury News: "The residents of Blackhawk, the upscale East Bay gated enclave, recently received unsettling news from their HOA: Tidy up your landscaping by June 1 or face "aggressive enforcement" that could result in sanctions ranging from a fine to disabling transponders that open gates to your neighborhood.

Where to start? Like a lot of us, some Blackhawkians allowed their lawns to die last summer after Gov. Jerry Brown mandated a 25 percent reduction in residential water consumption. Like a lot of us, some Blackhawkians will be soon be consulting with landscapers."


I am quoted in this article. I posted something about Blackhawk the other day. There is a state law in California that prohibits HOAs from taking certain enforcement actions when there is a declared drought emergency. Maybe there's some aspect to this particular situation that I don't understand, but based on the facts as stated in these articles, I don't see how "aggressive enforcement" is appropriate. The El Nino conditions did produce some relief, but not enough. "Drought conditions have improved following a wet January and a relatively wet March, which raised water levels in many reservoirs to roughly average for the current date. However, this winter’s rain and snow levels have not been sufficient to end one of the state’s worst droughts in recorded history." 

Homeowners’ Associations and the First Amendment: Are your 5 Freedoms Guaranteed? – Independent American Communities

Homeowners’ Associations and the First Amendment: Are your 5 Freedoms Guaranteed? – Independent American Communities:

Deborah Goonan weighs in on the issue of civil liberties in HOAs.

Sunday, April 24, 2016

5 Reasons You Hate Your HOA

5 Reasons You Hate Your HOA

I'm quoted in this Kiplinger article, but I didn't say anything about hating anybody.

McKenzie tells me “there are very few avenues for individuals to take on their associations.” There are elected seats on the board, usually filled by home owners, but manipulating that internal political process is “harder to do than it sounds." And getting bylaws changed? Forget about it. "The problem is those governing documents were intentionally set up to be very hard to change," McKenzie says. "This has always been like this, back into the ‘60s. They want to know that the product isn’t going to change, so they made the declarations very hard to amend.”

Resorting to a lawyer is another route, but a tricky one, says McKenzie. Judges won’t smile down on you. “They look at you like you’re complaining about something you agreed to; you accepted the rules.”

What drought? East Bay gated community orders homeowners to green up - San Jose Mercury News

What drought? East Bay gated community orders homeowners to green up - San Jose Mercury News

BLACKHAWK -- The homeowners association for this upscale, gated community has threatened to fine homeowners for brown or dead lawns and landscaping despite a continuing state drought emergency. "We believe that allowing the drought to negatively impact the landscaping at any Blackhawk home does a disservice to property values throughout the community and is a violation of our CC&Rs," wrote Mark Goldberg, the community manager for the association, in a letter that went out to 2,027 Blackhawk homes, just east of Danville, last month. Effective June 1, the association will begin "aggressive enforcement" of landscaping standards that could include issuing fines, filing lawsuits, doing landscaping improvements and handing the bill to the homeowner or turning off gate clickers to enter the community."


This, despite the law:

California Civil Code Section 4735:

"(c) Notwithstanding any other provision of this part, an association, except an association that uses recycled water, as defined in Section 13050 of the Water Code, for landscaping irrigation, shall not impose a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during any period for which either of the following have occurred:

(1) The Governor has declared a state of emergency due to drought pursuant to subdivision (b) of Section 8558 of the Government Code.

(2) A local government has declared a local emergency due to drought pursuant to subdivision (c) of Section 8558 of the Government Code."

Sea change for Florida's 60,000 homeowners associations - Sun Sentinel

Sea change for Florida's 60,000 homeowners associations - Sun Sentinel

"On July 1, Florida law was amended to give condominiums, cooperatives and homeowners' associations throughout Florida the right to conduct membership votes online. While online voting has been permitted for some time in other states, this new law represents a sea change for Florida's more than 60,000 community associations. For communities with a large percentage of investor and snowbird owners, online voting gives these owners a newfound opportunity to participate in important membership votes in their association. Currently, many of these owners are unable to timely return voting materials and they are disenfranchised as a result. Even for owners who are local but do not wish to attend meetings or send in a proxy, online voting may spark an increase in their participation."


Ordinarily I'm in favor of making voting easier in all elections. I hear from young people all the time that they want to vote in public elections with their smart phones.  But here we have the issue of whether absentee/investor owners have a different set of interests than the resident owners who actually live in the community. If so, making it easier for non-residents to vote changes the balance of interests in elections. Attorney Donna Berger is the author of this article and she is all for this change, and her firm is selling a software voting package.  We will have to see how this works out in practice.

Stapleton HOA that blocked radon mitigation is now charging legal fees - 7NEWS Denver

Stapleton HOA that blocked radon mitigation is now charging legal fees - 7NEWS Denver

DENVER - The Stapleton Homeowners Association that blocked a homeowner from installing a radon mitigation system is now sticking her with the legal fees before she sells her house.

"It's so ludicrous," said homeowner Melissa Crowder. "I am sure they are absolutely embarrassed, and that's their way of getting back to me."


I won't get into the merits of this particular dispute, but speaking in general, fee-shifting provisions in CC&Rs and the statutory and contractual lien powers of associations carry with them the potential for abuse. It is an aspect of HOA/condo activity that needs to be subjected to more careful judicial oversight.