By Deborah Goonan, Independent American Communities
The latest association-governed common interest community (HOA) industry PR effort that appears to be news – but is not news – is a report from WBTV in Charlotte, North Carolina.
The gist of this report is that, when your HOA is non-responsive, read your governing documents, organize a group of owners to confront the board, and if the board continues to disrespect your rights, then run for the board yourself and vote the bums out.
Ah, yes. This is typical rhetoric from the industry that manages the majority of homeowner, condominium, and cooperative associations in the U.S.
Frustrated with your HOA? Knowing your rights can help
Wednesday, July 12th 2017, 4:17 pm EDT
Thursday, July 13th 2017, 2:30 pm EDT
By Nick Ochsner, ReporterCONNECT
CHARLOTTE, NC (WBTV) –
Homeowners in a fight with their neighborhood homeowners association can get the upper hand by knowing their rights, an attorney who represents HOAs told WBTV.
We started asking what residents could do to fight back against their HOAs after we received dozens of calls to our tip line from viewers who have tried to raise issues in their neighborhoods with little or no luck.
One of those homeowners was Ronald Hannah, who lives in the Davis Meadows subdivision in north Mecklenburg County.
Hannah said he and his neighbors were trying to get access to their HOA’s financial documents since January, ever since they found out their quarterly dues were being raised from $60 to $75.
“I just want to know what’s going on,” Hannah said. “It’s not about the money, it’s about finding out what the money is being used for.”
North Carolina law requires HOAs to make their financial documents available to any member who makes a valid request for the information. But Hannah said his calls and emails to the company that runs his neighborhood’s HOA, Greenway Realty Management, have gone unanswered.
“We’re trying to communicate with them via email or even call them, it’s a complete hassle. Leave a message and get no response,” Hannah said.
Attorney Chris Gelwicks represents hundreds of HOAs across North Carolina and South Carolina. Gelwicks said dealing with HOAs can sometimes be tricky, both for the homeowners and for members of an HOA board.
Residents who feel their HOA boards are not following the law can take action on their own to try and create change, according to Gelwicks.
“If you communicate with a board and you don’t think you’re getting anywhere with them, you have the ability as a member to get other members to join you to call a special meeting and, you know, get on the board yourself,” Gelwicks said.
Read more (Video):
This report is not news because it presents only one expert’s opinion, and that expert – Chris Gelwicks – happens to be an attorney who represents HOAs and not homeowners or residents who live under HOA covenants, conditions, and restrictions (CC&Rs).
It is no surprise that Gelwicks is a prominent member of industry trade group Community Associations Institute (CAI). His talking points in the WBTV interview are easily recognized as CAI political doublespeak.
The realities of HOA life
WBTV did not happen to interview any experts or advocates who speak out about the realities of living in an association governed community.
The reality is that, quite often, homeowners have to waste considerable time and exert a lot of energy just to obtain basic information from their association. And even though the law says homeowners are entitled to view documentation that shows how their money is spent, it can take months or years to obtain access to official records of one’s homeowner, condo, or cooperative association. All too often, the HOA board ignores member information requests, or drags its feet, only to partially fulfill the request.
Sometimes homeowners must resort to filing a complaint in civil court, in hopes that a judge will order the association to produce records, to which homeowners are supposedly entitled by law. But that costs homeowners hundreds, if not thousands, of dollars.
In cases that involve fair housing complaints, state or federal agencies sometimes intervene on behalf a resident who files a complaint. But most current and former residents of association-governed housing tell me that it takes several years for the fair housing agencies to investigate and respond to the complaint.
Scapegoating behavior in HOAs
Regardless of the nature of the complaint, during the time an investigation or civil suit is in progress, the resident that is trying to defend his or her rights is labeled as “disgruntled” or a “troublemaker.”
It is not uncommon for the HOA to suddenly discover covenant violations, for which they intend to impose monetary fines, or to use as grounds to revoke voting rights of the homeowner who dares to challenge the HOA board.
These are classic intimidation tactics.
Where is the expert to point out that, because the HOA must defend itself, legal expenses become the collective obligation of all association members? The predictable result is that a homeowner that stands up for his or her rights becomes the scapegoat of the association, blamed for creating unwanted legal expenses for all members.
And when the owner or member attempts to tell his or her side of the story, the association often takes advantage of its sole control of communication channels to shut down any and all speech that could reveal the truth or a different opinion or perspective.
The HOA attempts to block leafletting, going to door-to-door with a petition (labeling it as solicitation), or ad hoc gatherings in the community club house. The owner or resident might be blocked from posting or making comments on social media platforms under the control of the HOA. (And this is how many unofficial, underground owner-led websites are born.)
In essence, homeowners and residents are both prevented from defending their rights, and punished for speaking up for themselves. The rare HOA resident that dares to defend the community troublemaker risks becoming the next scapegoat.
So most homeowners and residents opt to avoid the conflict and turn a blind eye to board misconduct, defiance of state and federal laws, and blatant abuse.
And HOA justice often remains elusive without a lengthy, costly legal battle that creates unnecessary expense and emotional stress for the parties involved.
HOA documents and laws enable this oppression to occur.
The truth is, most CC&Rs, Bylaws, and Articles of Incorporation – contracts and governing documents that form the foundation of modern mandatory residential associations – are written by CAI attorneys such as Gelwicks, especially attorneys that work for developers.
As such, the legal language is intentionally written to the benefit of corporate associations and common interest community developers.
But none of these legal documents are reviewed by municipalities, counties, or states, to make certain that the content within is fair and equitable for housing consumers.
The industry, led by CAI attorneys, has historically taken the political stance that, because HOAs are private entities, Constitutional constraints and civil liberties need not apply.
Therefore, there is no formal Constitutional review process for establishment of association-governed communities.
What about regulatory agencies?
City, State, and Federal regulatory agencies do exist – Housing and Urban Development (HUD), Fair Housing agencies, and consumer protection agencies are some examples. But these public agencies are severely limited in what they can do, their investigations take months or years, and their authority to enforce laws is narrowly limited.
Other administrative bodies such as Real Estate Boards, Bar Associations, and industry-led boards that review complaints regarding Community Managers, rely on primarily on the industry stakeholders to self-regulate.
As one of my readers writes:
These agencies that legislators claim are “solutions” are often run amok in their own foul plays or have ties to the very people involved in repressing another’s rights. I reiterate that rebalancing the power from the onset in HOAs must be the first solution we seek to address the real issues ongoing in HOAs nationwide. Our constitutional rights cannot be “contracted out”.
In search of solutions
The bottom line is that many conflicts can and should be prevented by curtailing power of the HOA board and its agents, and by declaring many of the provisions in governing documents to be constitutionally invalid and non enforceable.
First and foremost, public policy needs to encourage owners and residents to be actively involved in the affairs of their association-governed communities. To that end, legislation needs to outlaw suppression of speech, especially when a resident’s viewpoints oppose the opinions of the board of directors.
To quote my reader again:
Facebook, Nextdoor and any communications relating to the HOA will persist as long term issues within HOAs as these forums have all but replaced what used to be conversations at the mailbox with your neighbor. They are too efficient to not use them, and cost less to any organization wanting to communicate with their members. HOAs are routinely removing those who speak up for their rights from communicating and isolating neighbors. Federal laws must directly address those who silence others; if not, the law is effectively allowing isolation and the ostracizing of homeowners from the community.
Residents of association-governed communities need to have the law on their side, so that they may confidently speak up for their rights, without fear of retribution.
And to enforce their rights, all members of common interest communities would benefit from learning skills to develop emotional intelligence and assertiveness skills, so that no one is allowed to bully one’s neighbor(s) into submission to the will and whim of their current HOA leaders.