HOA fines.....Unconstitutional?

Attached is an interview with a knowledgeable lawyer (you know....an expert)
Like the one who lost you your case? Sorry cheap shot but I couldn't resist.

Mike I asked you on one of your other posts about HOA's being unconstitutional just what section of the Constitution they violate? Now my state and others specifically allow fining and even before Ohio did that our documents, you know the ones you agree to abide by when you VOLUNTARILY purchase a home, allowed for it.

How is a HOA, a private organization you join any different from any other private organization you join? When you join them you agree to abide by the rules or face the consequences.

I unfortunately lost the link but while you are complaining about how unfair fines are there was a couple who racked up almost $250,000.00 in fines back in the late 90's early 2000's in CA. They took their HOA to court claiming the fines were excessive. The Judge ruled in favor of the HOA and told the couple they could have ended the fines at anytime simply by following the rules they agreed to follow.

Mike;

the Constitution of the Republic of the United States of America guarantees you the right to enter into an enforceable private contract

you 'waived' many of your ammended rights by doing so (remember, the bill of rights were contentious AMMENDMENTS)

your only rights (from the creator) are:

LIFE: no hoa is removing your life

LIBERTY: you are free to 'move on down the road' at any time (albeit with a loss)

PURSUIT (repeat: pursuit) OF HAPPINESS: buying into a hoa is many peoples idea of happiness - if you disagree, see LIBERTY

now ~ shut yer freakin mouth and quit yer bitchin'

Mike,

I actually prefer your opinions over your interpretation of other peoples opinions.
Actually, I prefer anyone's personal opinion over the interpretation of other peoples opinions. If an individual can actually defend their opinion then it shows that they have done the actual research, viewed and interpreted any supporting documents rather than simply trusting what others say without any real verification into how they are supporting their opinions. I prefer that someone says read this case or that law or this document vs. listen to this person or that person. If someone agrees with another persons opinion then they should be able to support that agreement on their own without referring to the other person.

BTW: Remember the old joke that an expert is simply someone who is paid for their opinion. Even with attorney's I prefer to do the research myself to see if I agree with their advice or not. Just because someone has a license and passed a test doesn't mean that they have the intelligence and common sense the job requires.

On another note, I've listened to a few of the "on the commons" podcasts. Personally, I find them to be one sided vs. reporting the actual issue. Even when the guests specify that it's best to resolve the issue internally prior to going to court, the host glosses over those comments and seems, in my opinion, to only focus on the negatives. Typically those negatives could have and should have been resolved without going to court but people are people and sometimes common sense goes out the window.

I'm sorry Tim but did you really expect anything more from Mike than that?

Mike has proven to me at his best all he has to offer are the words and views of others he agrees with. That's why if you read his posts he replays and repeats the same one liners, the same quotes, the same "facts" as he sees them and of course leaves out the stuff that might show his "work" is not going all that well.

Funny in that one case Mike has cited for years now in listening to the parties involved their advice was not to represent yourself in court. Now Mike saw all the common ground they had but disgarded anything he did not find useful. How did that work out for him?

IMO Mike offers NOTHING just a short list of links to other like minded zealots whose days are filled with big plans to "take down" "Slap Down"
destroy the enemy HOA. Mike is one of a small group of simpleminded folks who just doesn't get it. His plans and hopes lie with the courts and government solving his issues. Oh God you've got to be kidding!

So NO it comes as no surprise that what you take away from Mike's latest link is miles apart from what Mike hears.

You have to understand what a fine is and have a definition for the fine in your HOA. A fine is a monetary punitive way of enforcing a rule/laws. It is a way to punish someone in their pocket for violations as warnings or other methods are not working.

A good example of fines are "Speeding tickets". I use this example a lot to get the point. Fines are like "Speeding tickets" to a HOA. They are NOT part of their income and subjective to definition. It is the definition part that often is the area that causes the most issues. Speeding tickets to a city/state are fines that are enforced to make someone obey the defined speeding laws/limits. People hate getting them but how else are you going to enforce the speeding laws if there are no punitive measures? Speeding tickets are not "unconstitutional" and a useful tool for safe driving and making us rule abiding citizens.

Once you understand the science behind the fine, then you can begin to educate yourself on why they are useful tools to use in the right conditions/definitions. If your the one getting fined, then you obvisously have an issue with a definition of a rule and better get that clarified or pay up.

HOA's should have the right to fine but also need to have a definition spelled out in a fining schedule. I would prefer my HOA have the right to fine so that when all else fails to get a violator's attention, monetary punishment can be pursued.

Mike, you are again painting all Associations with the same brush.

In fact, some States like FL, see FL 720.305, makes sure that the hearing committee doesn't include officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.

Other Associations have enough members involved that everything can be ran independent of each other. All Associations, if they have enough member support, may amend the governing documents or adopt policies to make sure that (to use your term) the shmuck isn't any part of the process except a witness.

Of course to make those amendments, it's going to take membership involvement. Something you have stated your not willing to do.

If you're not for Constitutional HOA's that must mean you are a communist and want to take away all rights – right? To this I say Bravo Sierra which is a polite way to say Bull S***. What you are really talking about is taking away all of the HOA's powers to enforce and make them into feel good Kumbaya singing Utopias where neighbor helps neighbor and if the HOA needs money, homeowners will gladly donate it if the HOA and Board is "Moral" enough. The problem with this is that there are always people who feel the rules don't apply to them or that others should pay their way, this is just human nature going back to the dawn of man. So the HOA has sometimes has to be the bad guy and hold homeowners to the contract they agreed to abide by when they bought their home.

Implying that you give up some "Right" when you buy into a HOA is a nice hook, throw in a few of the right buzz words and wrap it in the flag and voila HOA's must somehow be Unconstitutional or do Unconstitutional things. What rights do you give up when you live in an HOA? The same ones you give up when you deal with any other incorporated entity. As reluctant as I am to compare HOA's to government entities let's compare a HOA to a typical incorporated city.

ACC vs. City Zoning Board: Both set the standards for buildings.

Fining: Both can fine for things like not cutting your grass, cars in your front yard, businesses in a residential area. When you are fined you have two options – pay the fine or fight it, in the city this means going to court; in the HOA it means pleading your case before the Board. The HOA often gives the option of cure the violation by a certain date and there is no fine but even if they don't give that option and the Board fines you, you have the option to fight it in court.

While many complain that in a HOA you are appealing to the very people that fined you in the first place, do you really think that it is all that different in a city. Sure you're not appealing to the guy that wrote you the fine but if you are guilty of whatever initiated the fine, what do you think your chances are to "beat" it? The city also pays the judges salary.

BTW I admire how Florida has required a fining committee and I would urge every HOA to look into it.

Assessments vs. Taxes: Both hurt to pay and both are necessary for the entity to function and provide services. And in both cases the City or the HOA has the option to place a lien if they are not paid and to eventually force the sale of the property to satisfy the debt. Here the city has the advantage because tax liens even supersede the lien the mortgage holder has, whereas the HOA comes in third after the taxes and the mortgage. Except in Florida where the buyer becomes responsible for any unpaid fees.

Freedom of Speech: Think you have Freedom of Speech outside an HOA? I invite you to go and try to protest the next time the President (of either party) comes to town. Think you have the right to get in front of them and protest X, think again, oh you can still speak your mind, you just have to do it in designated areas away from the President and the media.

But I, like people who don't like HOA's are still free to come to places like this and voice our opinions right from the comfort of our HOA home. We can write letters to our Board voicing our opinion, we can contact our neighbors and give them our opinions. We just can't put up billboards in our yards with our opinions.

Supreme Court of Virginia:

“The imposition of a fine is a governmental power. The sovereign cannot be preempted of this power, and the power cannot be delegated or exercised other than in accordance with the provisions of the Constitutions of the United States and of Virginia. Neither can a fine be imposed disguised as an assessment.”

RECENT CASELAW

This concept of condominium boards levying fines was recently considered by the Virginia Supreme Court in Unit Owners Association of Buildamerica-1 v. Gillman (12).

In this case, a commercial condominium association provided in its by‑laws that the board of managers had the power to levy fines against unit owners for violations of the rules and regulations promulgated by the board. The reviewing tribunal, in affirming the trial court's finding which set aside the fines as unlawful, found "no language in the Virginia Condominium Act which authorized the governing body of the condominium to levy fines, impose penalties or exact forfeitures for violation of the by‑laws and regulations of unit owners."

Since the Act did not specifically empower the association to levy fines, such a power could only be delegated by provisions of the United States or Virginia Constitutions.

Subsequent to this ruling, the Virginia legislature amended the Virginia Condominium Act to allow condominium associations the power to levy fines as a means of enforcing the covenants and rules established by the board.

Therefore, it can be safely concluded at this juncture that unless property purchasers acquire title subject to a declaration which expressly authorizes the levying of fines, or unless the members of the association participate in amending the declaration, the levy of fines for rule infractions will probably be deemed to be unenforceable

Jon you have the chronology wrong.

The act allowing fines was passed by the Legislature BEFORE oral argument in Gilman.

The decision in Gilman....rendered the act "Dead in the Water".

But read this letter from the attorney representing Gilman adddressing this FACT.

http://onthecommons.us/images/stories/cases/gillman_goldbecker.pdf

I want to save this to read more replies later. (Have to go to work). But in years past our Board has not put "teeth" into the rules. Thus many people violated the rules.
Now we have a rule violator who we invited to a Board Meeting (Which after the fact I think was a mistake.) It should have been a closed meeting with just the violater in attendance.
But this rule violater mentioned other rules that have been violated and nothing done about it. What our members don't seem to understand that we had no control over what a former Board did or did not do.
Our documents state all new owners/residents must register with the Secretary. At the time of registration rules are explained. But for many years that had not been done and people moved into a unit unaware of what the rules were at the time they moved into the unit.
We are working on a fine schedule. We are taking our time with the schedule because we want it to be effective and fair.

Tim,

That is correct.

That is why I am working on getting my own "Gilman" here in MA.

The only definition of FAIR,

Is impartial due process afforded by the courts

Property, you mean like the property courts have made easier for the Government to take by eminent domain?

Mike I'm not talking about eminent domain for things like roads or schools, I'm talking about cities using ED to force people out of their private property to give it to another private entity who promises to build something that will generate more tax revenue for the city.

OK. Now I understand. You want to have a court say that Associations can't use the word "Fine" when they impose monetary penalties.

A fine can be "disguised" as an assessment in some states. Meaning that they will apply the dues you pay toward the overall balance going toward the fines owed first. That way they can then place a lien for unpaid assessments. A little tricky but that is what some HOA members have gone to their state legislatures to fight for the right for their HOA to do. So you may want to consider that when you want to go to your legislature to fight HOA's. It wasn't the HOA's that most likely past this but it's own members...

The HOA can lien for making repairs to repair violations/maintenance. Those aren't disguised fines. Those are considered "damages". The HOA spending money on correcting violations instead of the owner doing it, is out of their pocket. Which damages it. The court would consider that situation a reason for a lien or even lawsuit to make the HOA whole.

Fines are just monetary punitive measures to correct a violation. They serve their purpose if applied correctly and the correct definitions.

Well it sounds like obtuse, sophisty to me...

But try it out on a Virginia judge...you never know

Really...90 bucks...thats it?

Cool, I would tell the BOD to kiss my @#& for that easy!

Funny! Whenever anyone told me to "see you in court" I would say "Okay...see you there and bring the paperwork"... It was never a threat to hold over my head or the HOA. Never ran to my lawyer telling him that we had best prepare to make a settlement to avoid a lawsuit.

Never spent much worry or time preventing a lawsuit. Lawsuits happen. Just bring it on and follow through... No one ever did. If they did, then we would just go to court and countersue for the cost of our legal costs. Which the court decides who pays.

Since most of our members were intelligent people, it did not take much to get them to understand suing the HOA is suing themselves and their neighbors. The choice is still yours but the option was there to make rule changes or remove the board. All internal solutions available to ALL HOA's owner operated and owned.

Along with all the juicy sanctions the court would be inspired to award as well.

Here is a great letter written by the attorney who got fines outlawed in Virginia:

http://onthecommons.us/images/stories/cases/gillman_goldbecker.pdf

It is pretty interesting..

Yes,

If you fine your members in VA..... just don't call it a fine.

The courts are too stupid to know the difference and you will get away with it .

Unless of course the Judge has an IQ north of 75, then the court hits you with sanctions...and you don't get away with it.

But as HOA board members....you can just pass this unfortunate ruling along to the members.

Tim, what do you look like in a bikini? because otherwise your buffoonery is appalling.

Are you familiar with the case Goodridge vs. Dept. Public Health?

It found (a beautifully written decison) that gay people could not be denied any rights afforded to "other people".

Other states have been falling in line like dominos to this decision.

This is Massachusetts I am talking about. We take pride in the fact that OUR state constitution affords MORE rights to

its citizens than even the Federal constitution.

That is why I am hopeful that the Mass SJC takes my case regarding HOA fines, that can be collected by foreclosure of our

property, which (in my words) is repugnant to the constitution of the Commonwealth of Massachusetts (Articles 10 and 30).

And just like Goodridge....would be a "shot heard round the country" regarding the abiltiy of these dispicable private

governances to usurp the power of our real government, and deny to HOA residents the due process protections afforded

to "other homeowners" who live outside the gates.

But of course we will just have to see about that.

But in any case, you should read that decision written by Chief Justice CJ Marshal.

It is the case that inspired me to go after this thing I believe in.

I agree. This is my experience. My reply is like yours. "Feel free to do what you feel you must do. See you in court."

In many cases you cannot hold the Board "personally liable" as Mike suggests. Now Mike has made claims that at one point he planned to take the homes of Board members in his HOA.. But that turned out to be simply fantasy. Like most of what Mike claims.

So YES take legal advice from Mike and more than likely you will end up right where he finds himself today.

After 10+ years of failing in court against his HOA. Mike has "slapped down" nobody. He has spent thousands in doing so. And risks having to spend even more. So if you live your life following failure as a guide Mike is your man.

Mike sees the enemy in every HOA the vast majority of which he has no knowledge about. Mike would like you to believe there is some "movement" afoot to do as Mike says. The truth you have a few dedicated anti-HOA zealots who preach the world according to them and suggest the end is coming.

Yes, lets "recharter" all the HOAs in America and then use that resource to "restore America" in MY image. The we can dissolve the IRS, we can put in place my flat tax system and do away with the Department of Homeland Security because the God I worship has told me to do so.

Sounds like a plan with a ZERO chance of succeeding. And the 400 hits on the blog tell me so.

Yes folks like Mike are not happy. Because as he tells it only fools and idiots can live in an HOA. But at one time he owed two! Mike promises all the information you need to do as he has done. Looking for links, Mike has one or two. Looking for other folks that will tell you just how well the fight is going Mike will hook you up.

But in Mike's HOA, just like in the HOAs of all the anti-HOA shakers and movers, NOTHING has gotten done other than flapping of gums and opinions.
Yes, lets "recharter" all HOAs there is a movement! Have you "rechartered" the HOA where you live? Well....... working on that.

Funny, arrogant, or simpleminded how some folks can tell you all how to do things when they themsleves have never done anything. Posting a few times on an internent website does not an expert make. Nor does it make your uninformed opinion any more valuable.

Talking about doing something like Mike, the "recharter" effort head and others is wasted time. Just they can't see it for what it is.

In their minds they are doing God's work. Fighting the good fight.

Mike now claims to have some intention of protecting the other HOA owners in his community. We have all read about the poor 92 year old man Mike likes to hold up as an example of his kindness and motivation. In truth Mike has no regard for anyone but Mike. He has said so. But now he thinks playing the super hero makes for better press.

So yes when you have done nothing but failed for more than 10 years you make good leadership material. When you twist reality to suit your views yes you are the person I would want to follow. When you can hear nothing but your own views and beliefs yes that gives you a good chance of being right all the time.

Mike is like Bozo. Mike is a clown. And those who follow similar lines of thought or belief well IMO they might belong in the circus too.

Like a snake oil salesman Mike tells you what you wish to hear to hook you in. Mike has all the answers to YOUR problems and situations. Just that Mike can't fix his own. And if you are slow enough or desparate enough Mike is YOUR man. A like minded wind bag who knows and does nothing.

The crazy train is now loading... all aboard!!!!!