BUYER BEWARE, PART III: THE ILLUSION OF “PROPERTY” OWNERSHIP
Donie Vanitzian, BA, JD, Arbitrator
(c)2006
What’s wrong with buying a condo? Almost everything. Most people who think they are getting a good deal, have no idea what the meaning of a “good deal” is. It is not enough to say that the building looks good, or that the lawn is cut and the flowers are in bloom. Buyers must look beyond the facade.
This type of living environment requires the
Thursday, June 29, 2006
Sunday, June 11, 2006
Welcome to Conformityville!
Welcome to Conformityville!
Constraint * Conflict * Control
Conceit * Controversy * Corruption
by Donie Vanitzian, BA, JD
(c) 2006 Vanitzian
Its been about three years since Villa Appalling! invited and welcomed millions of residents into its community and congratulated them for buying into its ass-o-see-a-tion. A big thank you was also extended for putting your money in the ass-o-see-a-tion's hands, and buyers were also reminded to be good neighbors. The criteria for being a good neighbor, is soooooooo simple, all you have to do is follow the rules: 1. Give us your money. 2. Don't ask questions. 3. Don't run for election to the board. 4. Don't come to meetings but give us your proxies and ballots. 5. Don't make waves. 6. Understand that we sue first and ask questions later. 7. Don't sue us, but we can sue you, and you will pay for it. 8. If you don't pay, we will foreclose on your home. Finally, always remember that we can make your life miserable -- other than that, Villa Appalling! Welcomes you.
If you think THAT'S bad, you haven't heard the worst of it.
CONSTRAINT!
Though there is NO per se "homeowner association" law, many attorneys profess to be expert in just that: "homeowner association law." The law should be "the law" -- period, no exceptions for individual groups or sideshows. If a person owns "real" property, then property law should be applied fairly to all, but it is not.
The proof of two legal systems is easily seen through a type of quasi-property ownership, a hybrid of sorts consisting of a contrived corporate fiction whose liabilities are shared amongst owners. It is against this backdrop, that certain property OWNERS have been lured into and made to conform to nefarious "industry standards" that are backdoored to our legislators. These so-called "standards" prevent this group of owners from effectively protecting their individual assets once they purchase "property" in a common interest development.
When making arguments against those who champion the owners' individual rights to protect their assets one of the most prevalent terms utilized by the "industry" is "homeowner advocate." Their use of this phrase is nothing more than a "label," it is an oxymoron and it is meaningless. Who would want to be a "homeowner advocate" for this bastardized hybrid type of living arrangement under the umbrella of a fictional corporate business shell. Who would advocate or promote such a disastrous concept?
As one author writes, soon, legislation will "shift the balance of power in homeowners associations away from the board of directors and in favor of the property owners." Presently, this cannot happen in California because it would entail recognition of the full bundle of sticks by way of "property rights" for those owners who by statute have inferior titles. The "industry's" relationship to a homeowners association consists only of an at-will contract to provide services and nothing more. It is the titleholder that has a VESTED INTEREST IN PROPERTY -- THE "INDUSTRY" HAS NO SUCH INTEREST WHATSOEVER!
Using the bundle-of-sticks metaphor, the bundle represents the owner's entire interest in property and each stick within the bundle represents a particular right held by the owner of that bundle. Owners, whose titles are clouded by deed-restrictions that forever change at the whim of any given board in power at the time, have experienced a taking of substantial property rights. Every time these deed-restrictions are amended, rewritten, or restated, the titleholder is usually denied rights that vested on purchase of their property. With each change or fluctuation in recorded or unrecorded restrictions and rules, the association "takes" from these owners a significant stick in the bundle of sticks that together constitute ownership of real property, thus denying them due process of law. Each stolen "stick" further denies that owner of yet another economically productive use of his property. Yet because the association it is not a governmental entity that is taking that property or property right, there is no compensation due the owner. Owners are left to their own devices to recoup or absorb their losses.
Deed-restricted ownership is a "risk" and it is "inferior" to all other types of real property ownership. One may have title to their property, pay taxes, and be with or without mortgage debt, but that does not mean you completely "own" that property in total. In such developments, the titleholder's asset basically consists of nothing more than the "inside space" of their home and in limited cases the outside structure, otherwise he or she virtually owns nothing outright because the actual ownership consists of a "fractional interest in common" with many others, and nothing more. In other words, one owns LIABILITIES-IN-COMMON with other fractional-interest owners. That's it. Whether it be a condominium, townhouse, single-family dwelling standing alone with no neighbors: If it is in a common interest development, has a homeowners association, has a board of directors, then that buyer's title is deed-restricted and inferior to all other types of REAL property ownership in the state.
Once the buyer understands that his purchase is "inferior" and his title is "restricted" maybe he will then understand that he does not own a "home" or "real property" in the traditional sense. When he fights to protect the rights he does not have, he will also uncover that he is NOT a true advocate for "home-ownership" therefore, he cannot be a "homeowner advocate" in the strict sense of the word. The best he can do, is attempt to protect his "asset" - whatever that is.
Because control is in the hands of an association's board of directors, the titleholder's control of his asset is "severely limited," and he can never own the land on which that structure (house) sits. Even if all the structures are damaged or destroyed (as in the Northridge earthquake) he still cannot escape assessment payments or his share of liability because a common interest development exists in "perpetuity" (forever) and, California courts have ruled such property cannot go bankrupt because each and every owner is mandated to pay unlimited assessments at any time. These owners are forced to pay to keep the association solvent.
CONFLICT!
Boo, hoo, hoo. While the "industry" continues to whine about their difficulty in squeezing more money from owners, but continue to deny their interloper status, they do however, manage to inject themselves into the bank accounts of millions of Villa Appalling! residents and attempt to goad them into spending even MORE money to support third-party advertisements, lobbies, and surveys.
The "industry's" insecurity can be seen through its self-obsession in defining itself through politically correct terminology connoting "fairness," "professionalism," "hard working," and "careers in serving communities." Oddly enough, none of those words are per se definable, they are instead, nebulous creations of these interlopers who have perfected if not legalized, an artful type of hard-to-detect thievery that goes unpunished year after year, decade after decade. Clinging to income projections geared for years to come, the interloper's "dedication" is that of a sociopathic parasite petrified that its host will starve it to death at any time.
Picture the industry interloper as a conglomerate enterprise dedicated to the usurping of power from the owners who rightfully own it, and placing them in a vulnerable position which prevents them from protecting their assets in a meaningful way without interference from an association, board of directors, management company, and attorneys. In espousing their self-declared dedication in putting the interests of the association-fiction in a primary position, the industry relegates titleholders who are responsible for bankrolling the operation, to a subordinate roll. The reason for this is that the association-fiction can demand "unlimited" funds at any time from all titleholders which in turn can further line "industry" pockets. Still, these interlopers serving "communities" deny their involvement in devaluing property and eroding rights.
Only when faced with the truth and starved of financial resources, and with the future of the "industry" at risk, does the interloper go on the defensive by reverting to the banal platitude that "criticism is healthy for any industry that takes itself seriously," all the while planning their next assault against the rights of titleholders.
CONTROL!
Owners must understand that they have lost control of their assets, that is, if they ever had control to begin with.
The "industry's" adeptness lies in creating confusion among buyers and owners. An example of this can be seen in California where several industry factions, in order to legitimize their standing, lobbied vigorously to pass a certified common interest managers bill. They really wanted that 'certification' and they got it. The problem? They obviously didn't think it would be so difficult to comply with, so it got watered down, and then watered down again, and now take a look at that ill-crafted bill and what one has to do to be "certifiable." Does a management company owner need to comply? Is there a requirement that such managers have a high school diploma? What about a mandatory bond and investigative background searches on managers? Go look at the statute.
Associations and industries that control them, wield unbridled power over owners and while there is an illusion of "choice" and "freedom" in residential deed-restricted environments, those basic constitutional rights are at risk of forfeiture once the purchase is made. Associations can dominate your lifestyle, control resales, interfere with your livelihood, and curtail your activities. Not only does the owner have to deal with a board of directors and association rules, but also other interlopers such as management companies and industry lawyers who further complicate the titleholder's ability to cope with complexities inherent in this scheme.
Just because you can afford to move "in" does not mean you can afford to "stay" or that you can afford to move "out." Most buyers are not advised that they must have a steadily increasing income to keep up with escalating arbitrary costs and trumped up fees when purchasing or refinancing. Owners who cannot afford to pay their association's demands for any increased fees and assessments, that can cost thousands of dollars per owner, cannot stay. Make no mistake: all the cash capital in the association's bank accounts is generated from each owner.
Certified Personal Financial Planner and Real Estate Broker, Thomas Foster, explains, "Once the deception of association-type living is uncovered, the obvious next move is to immediately cut your losses and get out of there. It is only then, that owners discover the trap they're in. Moving from a deed-restricted property to one without restrictions of similar size and location may at first appear to be a 'like-for-like exchange' however, when it comes to pricing that's where the similarity ends. The fact remains that unrestricted property is much more valuable than it's restricted counterpart."
The big question for owners who bought into this "affordable living fraud" is; can they afford the extra cost and higher property taxes to break out of the trap? Owners brag, "My home has appreciated hundreds of thousands of dollars." That elation is short-lived. Mr. Foster explains "that appreciation is somewhat irrelevant if it is not enough for you to make a like-for-like exchange in real time. Compared to other 'real' real estate, your deed-restricted title is immediately devalued because you are unable to move into a comparable 'freehold house' for the same money in the same area. When defining appreciation, the owner must subtract all assessment payments made during ownership to see the real picture."
The industry's control over owners in this environment is evidenced through the owners being burdened with a double financial risk because they essentially relinquish control of their assets to an elected board of directors. Mr. Foster cautions, "The owner's financial crisis differs substantially from the association's financial crisis. An association always has 'cash requirements,' and by law it can raise cash on demand from each owner. Even with this ability, these communities can remain in a constant flux of not being able to meet their liabilities. This means that a 'gain' for the association results in a corresponding 'loss' for each owner, subjecting seniors in particular to potential personal financial distress."
CONCEIT!
The real "community" consists of owners financing "industry employees." Bankers, attorneys, gardeners, landscape companies, management companies, lobbyists, attorneys, painters, roofers, plumbers, are ALL PAID VENDORS feeding off the carcasses of owners. Titleholders are merely the goose that lays the golden egg or the cash cow.
In order to provide the resources to pay for the excesses of those controlling the industry, such as their child's tuition to Harvard, Princeton, Yale, or other private schools, the second Mercedes, birthday parties, fur coats, jewelry, vacations in the Caribbean, ski trips, purchase of private "real" properties, or time-shares in Mammoth, Colorado, Florida, Palm Springs, yachts, five-star dining excursions, mountaineering tutors, personal trainers, fine clothing, funding personal pension plans and health insurance, owners merely have to work harder, take second jobs or simply deplete their equity to bankroll the industry's insatiable appetite.
Frequently, mutual ties between the management company and boards of directors can be cemented by the exchange of cheap trinkets such as glass vases filled with mints, bouquets of flowers with thank-you notes containing pre-paid dinners at a local restaurant or theatre tickets and occasional boxes of chocolates. As the stakes get raised, more substantial gifts come into play such as vacations, airplane tickets, trips, cruises, garage doors, and SO much more. The author of this article was offered a three-week first-class luxury cruise in exchange for hiring a particular management company. Needless to say, the offer was rejected.
CONTROVERSY!
The "industry" blames its continued demise on "hate." Not their "incompetence" or their "greed," or their "dishonesty," but, "hate." Refusing to take responsibility for its actions, this is an industry that has all but demolished the concept of "affordable housing" as it was once known and caused countless sections of law to be repealed or written to better favor vendor-interlopers; prevented owners from suing their associations to vindicate their rights; forced arbitration down our throats; caused monthly fees to go up by mandating association registration with the Secretary of State and other agencies; created monopolies where none existed before; eliminated a variety of choices for owners; file amicus briefs against owners who are struggling to hold their own in a court of law; and silencing voices of opposition.
In an excellent retort by Mr. George Staropoli, titled, “Community Associations Institute Reinvents Democracy, a Response to CAI/CEO criticism of Homeowner Advocates" he succinctly posits these queries: "Is it reasonable to oppose restoration of the homestead exemption? Or reasonable to oppose due process protections by independent tribunals? Or reasonable to seek draconian foreclosure measures against homeowners that amount to excessive punishments and a constitutional violation of the 8th Amendment. No, it's only reasonable if your objective is the perpetuating a defective, authoritarian, un-American form of governance throughout the land."
When the "industry" wants to continue its stranglehold over owners, it is considered to be "for the good of the association." When an owner attempts to protect his assets, he is considered to be "hateful," "petty," and "vindictive."
Make no mistake, the concept of a homeowners association is a sociological and economical disaster. It is a failure perpetuated by myths created and sustained by an industry that is fearful it's free ride on the backs of our personal income, will cease.
CORRUPTION!
Corruption in homeowner associations is expensive, unchecked, and rampant. In theory vendors pretend they are there to alleviate time constraints and take the burden off a volunteer board. But, because it has become so lucrative, they instead create moneymaking opportunities for themselves.
The "industry" interlopers who have supposedly made careers of "serving" so-called "communities" add to the various types of interference associations face today. These unmitigated influences, which trickle down upon owners across the country are costing countless millions of dollars in poor decisions made by boards under the spell of outside vendor perks.
Sabotaging homeowners -- Keep this story depicting an anatomy of corruption in mind the next time your home is headed for a holiday season foreclosure. It is December and association management companies are ratcheting up their holiday spirit by screwing over a few extra homeowners. In the following instance, the owner first learns purely by chance that he has a lien on his property and is in danger of foreclosure. He immediately contacts the board only to be referred to the management company who in turn informs him that a "notice," "copy of a bill of what he owed," and "several letters informing him of the situation had been sent to him." None of which had been actually received by the owner. Despite his protests, he was told it was "out of the association's hands" and "it's with a foreclosure company" and now he "has to deal with the attorneys." When attempting to contact the attorneys all he was given was a post office box and an answering service telephone number with a recording saying that the office was closed for the December holidays and would reopen sometime in January next year. As it was too late to get the payment to a post office box in order to save his property he tracked down the foreclosure company. Just imagine how difficult that is to accomplish particularly during this time of year! He showed up just in the nick of time only to be told by a receptionist, "how the hell did you find us?" Then the owner was told, that the receptionist was instructed NOT to accept any payments from owners and that the boss was on a ski trip out of the country and that the office was "technically closed." The owner said, "Too damn bad!" and with that, threw his payment on the desk and left. Fortunately the owner had the foresight to be accompanied by a credible witness and because of this the company could not deny receiving payment. He avoided foreclosure. Happy Holidays.
Though some may believe that California's legislature is headed in a direction away from its past bad decisions and leaning toward the views of property owners, we are reminded that the Devil's Dictionary defines the word "lawyer" as "One skilled in circumvention of the law."
~*~
Constraint * Conflict * Control
Conceit * Controversy * Corruption
by Donie Vanitzian, BA, JD
(c) 2006 Vanitzian
Its been about three years since Villa Appalling! invited and welcomed millions of residents into its community and congratulated them for buying into its ass-o-see-a-tion. A big thank you was also extended for putting your money in the ass-o-see-a-tion's hands, and buyers were also reminded to be good neighbors. The criteria for being a good neighbor, is soooooooo simple, all you have to do is follow the rules: 1. Give us your money. 2. Don't ask questions. 3. Don't run for election to the board. 4. Don't come to meetings but give us your proxies and ballots. 5. Don't make waves. 6. Understand that we sue first and ask questions later. 7. Don't sue us, but we can sue you, and you will pay for it. 8. If you don't pay, we will foreclose on your home. Finally, always remember that we can make your life miserable -- other than that, Villa Appalling! Welcomes you.
If you think THAT'S bad, you haven't heard the worst of it.
CONSTRAINT!
Though there is NO per se "homeowner association" law, many attorneys profess to be expert in just that: "homeowner association law." The law should be "the law" -- period, no exceptions for individual groups or sideshows. If a person owns "real" property, then property law should be applied fairly to all, but it is not.
The proof of two legal systems is easily seen through a type of quasi-property ownership, a hybrid of sorts consisting of a contrived corporate fiction whose liabilities are shared amongst owners. It is against this backdrop, that certain property OWNERS have been lured into and made to conform to nefarious "industry standards" that are backdoored to our legislators. These so-called "standards" prevent this group of owners from effectively protecting their individual assets once they purchase "property" in a common interest development.
When making arguments against those who champion the owners' individual rights to protect their assets one of the most prevalent terms utilized by the "industry" is "homeowner advocate." Their use of this phrase is nothing more than a "label," it is an oxymoron and it is meaningless. Who would want to be a "homeowner advocate" for this bastardized hybrid type of living arrangement under the umbrella of a fictional corporate business shell. Who would advocate or promote such a disastrous concept?
As one author writes, soon, legislation will "shift the balance of power in homeowners associations away from the board of directors and in favor of the property owners." Presently, this cannot happen in California because it would entail recognition of the full bundle of sticks by way of "property rights" for those owners who by statute have inferior titles. The "industry's" relationship to a homeowners association consists only of an at-will contract to provide services and nothing more. It is the titleholder that has a VESTED INTEREST IN PROPERTY -- THE "INDUSTRY" HAS NO SUCH INTEREST WHATSOEVER!
Using the bundle-of-sticks metaphor, the bundle represents the owner's entire interest in property and each stick within the bundle represents a particular right held by the owner of that bundle. Owners, whose titles are clouded by deed-restrictions that forever change at the whim of any given board in power at the time, have experienced a taking of substantial property rights. Every time these deed-restrictions are amended, rewritten, or restated, the titleholder is usually denied rights that vested on purchase of their property. With each change or fluctuation in recorded or unrecorded restrictions and rules, the association "takes" from these owners a significant stick in the bundle of sticks that together constitute ownership of real property, thus denying them due process of law. Each stolen "stick" further denies that owner of yet another economically productive use of his property. Yet because the association it is not a governmental entity that is taking that property or property right, there is no compensation due the owner. Owners are left to their own devices to recoup or absorb their losses.
Deed-restricted ownership is a "risk" and it is "inferior" to all other types of real property ownership. One may have title to their property, pay taxes, and be with or without mortgage debt, but that does not mean you completely "own" that property in total. In such developments, the titleholder's asset basically consists of nothing more than the "inside space" of their home and in limited cases the outside structure, otherwise he or she virtually owns nothing outright because the actual ownership consists of a "fractional interest in common" with many others, and nothing more. In other words, one owns LIABILITIES-IN-COMMON with other fractional-interest owners. That's it. Whether it be a condominium, townhouse, single-family dwelling standing alone with no neighbors: If it is in a common interest development, has a homeowners association, has a board of directors, then that buyer's title is deed-restricted and inferior to all other types of REAL property ownership in the state.
Once the buyer understands that his purchase is "inferior" and his title is "restricted" maybe he will then understand that he does not own a "home" or "real property" in the traditional sense. When he fights to protect the rights he does not have, he will also uncover that he is NOT a true advocate for "home-ownership" therefore, he cannot be a "homeowner advocate" in the strict sense of the word. The best he can do, is attempt to protect his "asset" - whatever that is.
Because control is in the hands of an association's board of directors, the titleholder's control of his asset is "severely limited," and he can never own the land on which that structure (house) sits. Even if all the structures are damaged or destroyed (as in the Northridge earthquake) he still cannot escape assessment payments or his share of liability because a common interest development exists in "perpetuity" (forever) and, California courts have ruled such property cannot go bankrupt because each and every owner is mandated to pay unlimited assessments at any time. These owners are forced to pay to keep the association solvent.
CONFLICT!
Boo, hoo, hoo. While the "industry" continues to whine about their difficulty in squeezing more money from owners, but continue to deny their interloper status, they do however, manage to inject themselves into the bank accounts of millions of Villa Appalling! residents and attempt to goad them into spending even MORE money to support third-party advertisements, lobbies, and surveys.
The "industry's" insecurity can be seen through its self-obsession in defining itself through politically correct terminology connoting "fairness," "professionalism," "hard working," and "careers in serving communities." Oddly enough, none of those words are per se definable, they are instead, nebulous creations of these interlopers who have perfected if not legalized, an artful type of hard-to-detect thievery that goes unpunished year after year, decade after decade. Clinging to income projections geared for years to come, the interloper's "dedication" is that of a sociopathic parasite petrified that its host will starve it to death at any time.
Picture the industry interloper as a conglomerate enterprise dedicated to the usurping of power from the owners who rightfully own it, and placing them in a vulnerable position which prevents them from protecting their assets in a meaningful way without interference from an association, board of directors, management company, and attorneys. In espousing their self-declared dedication in putting the interests of the association-fiction in a primary position, the industry relegates titleholders who are responsible for bankrolling the operation, to a subordinate roll. The reason for this is that the association-fiction can demand "unlimited" funds at any time from all titleholders which in turn can further line "industry" pockets. Still, these interlopers serving "communities" deny their involvement in devaluing property and eroding rights.
Only when faced with the truth and starved of financial resources, and with the future of the "industry" at risk, does the interloper go on the defensive by reverting to the banal platitude that "criticism is healthy for any industry that takes itself seriously," all the while planning their next assault against the rights of titleholders.
CONTROL!
Owners must understand that they have lost control of their assets, that is, if they ever had control to begin with.
The "industry's" adeptness lies in creating confusion among buyers and owners. An example of this can be seen in California where several industry factions, in order to legitimize their standing, lobbied vigorously to pass a certified common interest managers bill. They really wanted that 'certification' and they got it. The problem? They obviously didn't think it would be so difficult to comply with, so it got watered down, and then watered down again, and now take a look at that ill-crafted bill and what one has to do to be "certifiable." Does a management company owner need to comply? Is there a requirement that such managers have a high school diploma? What about a mandatory bond and investigative background searches on managers? Go look at the statute.
Associations and industries that control them, wield unbridled power over owners and while there is an illusion of "choice" and "freedom" in residential deed-restricted environments, those basic constitutional rights are at risk of forfeiture once the purchase is made. Associations can dominate your lifestyle, control resales, interfere with your livelihood, and curtail your activities. Not only does the owner have to deal with a board of directors and association rules, but also other interlopers such as management companies and industry lawyers who further complicate the titleholder's ability to cope with complexities inherent in this scheme.
Just because you can afford to move "in" does not mean you can afford to "stay" or that you can afford to move "out." Most buyers are not advised that they must have a steadily increasing income to keep up with escalating arbitrary costs and trumped up fees when purchasing or refinancing. Owners who cannot afford to pay their association's demands for any increased fees and assessments, that can cost thousands of dollars per owner, cannot stay. Make no mistake: all the cash capital in the association's bank accounts is generated from each owner.
Certified Personal Financial Planner and Real Estate Broker, Thomas Foster, explains, "Once the deception of association-type living is uncovered, the obvious next move is to immediately cut your losses and get out of there. It is only then, that owners discover the trap they're in. Moving from a deed-restricted property to one without restrictions of similar size and location may at first appear to be a 'like-for-like exchange' however, when it comes to pricing that's where the similarity ends. The fact remains that unrestricted property is much more valuable than it's restricted counterpart."
The big question for owners who bought into this "affordable living fraud" is; can they afford the extra cost and higher property taxes to break out of the trap? Owners brag, "My home has appreciated hundreds of thousands of dollars." That elation is short-lived. Mr. Foster explains "that appreciation is somewhat irrelevant if it is not enough for you to make a like-for-like exchange in real time. Compared to other 'real' real estate, your deed-restricted title is immediately devalued because you are unable to move into a comparable 'freehold house' for the same money in the same area. When defining appreciation, the owner must subtract all assessment payments made during ownership to see the real picture."
The industry's control over owners in this environment is evidenced through the owners being burdened with a double financial risk because they essentially relinquish control of their assets to an elected board of directors. Mr. Foster cautions, "The owner's financial crisis differs substantially from the association's financial crisis. An association always has 'cash requirements,' and by law it can raise cash on demand from each owner. Even with this ability, these communities can remain in a constant flux of not being able to meet their liabilities. This means that a 'gain' for the association results in a corresponding 'loss' for each owner, subjecting seniors in particular to potential personal financial distress."
CONCEIT!
The real "community" consists of owners financing "industry employees." Bankers, attorneys, gardeners, landscape companies, management companies, lobbyists, attorneys, painters, roofers, plumbers, are ALL PAID VENDORS feeding off the carcasses of owners. Titleholders are merely the goose that lays the golden egg or the cash cow.
In order to provide the resources to pay for the excesses of those controlling the industry, such as their child's tuition to Harvard, Princeton, Yale, or other private schools, the second Mercedes, birthday parties, fur coats, jewelry, vacations in the Caribbean, ski trips, purchase of private "real" properties, or time-shares in Mammoth, Colorado, Florida, Palm Springs, yachts, five-star dining excursions, mountaineering tutors, personal trainers, fine clothing, funding personal pension plans and health insurance, owners merely have to work harder, take second jobs or simply deplete their equity to bankroll the industry's insatiable appetite.
Frequently, mutual ties between the management company and boards of directors can be cemented by the exchange of cheap trinkets such as glass vases filled with mints, bouquets of flowers with thank-you notes containing pre-paid dinners at a local restaurant or theatre tickets and occasional boxes of chocolates. As the stakes get raised, more substantial gifts come into play such as vacations, airplane tickets, trips, cruises, garage doors, and SO much more. The author of this article was offered a three-week first-class luxury cruise in exchange for hiring a particular management company. Needless to say, the offer was rejected.
CONTROVERSY!
The "industry" blames its continued demise on "hate." Not their "incompetence" or their "greed," or their "dishonesty," but, "hate." Refusing to take responsibility for its actions, this is an industry that has all but demolished the concept of "affordable housing" as it was once known and caused countless sections of law to be repealed or written to better favor vendor-interlopers; prevented owners from suing their associations to vindicate their rights; forced arbitration down our throats; caused monthly fees to go up by mandating association registration with the Secretary of State and other agencies; created monopolies where none existed before; eliminated a variety of choices for owners; file amicus briefs against owners who are struggling to hold their own in a court of law; and silencing voices of opposition.
In an excellent retort by Mr. George Staropoli, titled, “Community Associations Institute Reinvents Democracy, a Response to CAI/CEO criticism of Homeowner Advocates" he succinctly posits these queries: "Is it reasonable to oppose restoration of the homestead exemption? Or reasonable to oppose due process protections by independent tribunals? Or reasonable to seek draconian foreclosure measures against homeowners that amount to excessive punishments and a constitutional violation of the 8th Amendment. No, it's only reasonable if your objective is the perpetuating a defective, authoritarian, un-American form of governance throughout the land."
When the "industry" wants to continue its stranglehold over owners, it is considered to be "for the good of the association." When an owner attempts to protect his assets, he is considered to be "hateful," "petty," and "vindictive."
Make no mistake, the concept of a homeowners association is a sociological and economical disaster. It is a failure perpetuated by myths created and sustained by an industry that is fearful it's free ride on the backs of our personal income, will cease.
CORRUPTION!
Corruption in homeowner associations is expensive, unchecked, and rampant. In theory vendors pretend they are there to alleviate time constraints and take the burden off a volunteer board. But, because it has become so lucrative, they instead create moneymaking opportunities for themselves.
The "industry" interlopers who have supposedly made careers of "serving" so-called "communities" add to the various types of interference associations face today. These unmitigated influences, which trickle down upon owners across the country are costing countless millions of dollars in poor decisions made by boards under the spell of outside vendor perks.
Sabotaging homeowners -- Keep this story depicting an anatomy of corruption in mind the next time your home is headed for a holiday season foreclosure. It is December and association management companies are ratcheting up their holiday spirit by screwing over a few extra homeowners. In the following instance, the owner first learns purely by chance that he has a lien on his property and is in danger of foreclosure. He immediately contacts the board only to be referred to the management company who in turn informs him that a "notice," "copy of a bill of what he owed," and "several letters informing him of the situation had been sent to him." None of which had been actually received by the owner. Despite his protests, he was told it was "out of the association's hands" and "it's with a foreclosure company" and now he "has to deal with the attorneys." When attempting to contact the attorneys all he was given was a post office box and an answering service telephone number with a recording saying that the office was closed for the December holidays and would reopen sometime in January next year. As it was too late to get the payment to a post office box in order to save his property he tracked down the foreclosure company. Just imagine how difficult that is to accomplish particularly during this time of year! He showed up just in the nick of time only to be told by a receptionist, "how the hell did you find us?" Then the owner was told, that the receptionist was instructed NOT to accept any payments from owners and that the boss was on a ski trip out of the country and that the office was "technically closed." The owner said, "Too damn bad!" and with that, threw his payment on the desk and left. Fortunately the owner had the foresight to be accompanied by a credible witness and because of this the company could not deny receiving payment. He avoided foreclosure. Happy Holidays.
Though some may believe that California's legislature is headed in a direction away from its past bad decisions and leaning toward the views of property owners, we are reminded that the Devil's Dictionary defines the word "lawyer" as "One skilled in circumvention of the law."
~*~
Sunday, June 4, 2006
BUYER BEWARE, PART II: THE ILLUSION OF “PROPERTY” OWNERSHIP
BUYER BEWARE, PART II: THE ILLUSION OF “PROPERTY” OWNERSHIP
Donie Vanitzian, BA, JD, Arbitrator
(c)2006
Why would anyone buy a home with all the trappings of property ownership, mortgage, taxes, upkeep, and not have full control over it, and then risk losing it through non-judicial foreclosure? If you own a condominium, townhouse, or single-family dwelling located in a common interest development, your ownership is a risk because it is “inferior” to all other types of real property ownership. Even with taxes paid and no mortgage, it does not mean you completely “own” that property. In such developments, the owner’s asset basically consists of nothing more than the “space inside” his home and a “fractional interest in common” with all other owners.
Even if your home is damaged or destroyed (as with the Northridge earthquake) you still cannot escape liability and payments because a common interest development exists in “perpetuity” (forever) and, California courts have ruled such property cannot go bankrupt because every owner must keep paying.
An association can dominate your lifestyle, control resales, interfere with your livelihood, and curtail your activities. Just because you can afford to move “in” does not mean you can afford to “stay” or that you can afford to move “out.” Most buyers are not advised that they must have a steadily increasing income to keep up with escalating costs and trumped up fees when purchasing or refinancing. Owners who cannot afford to pay their association’s demands for any increased fees and assessments that can cost thousands of dollars per owner cannot stay. Make no mistake: all the cash capital in the association’s bank accounts is generated from each owner.
Certified Personal Financial Planner and Real Estate Broker, Thomas Foster of Marina del Rey, explains, “Once the deception of association-type living is uncovered, the obvious next move is to immediately cut your losses and get out of there. It is only then, that owners discover the trap they’re in. Moving from a deed-restricted property to one without restrictions of similar size and location may at first appear to be a ‘like-for-like exchange’ however, when it comes to pricing that’s where the similarity ends. The fact remains that unrestricted property is much more valuable than it’s restricted counterpart.”
The big question for owners who bought into this “affordable living fraud” is; can they afford the extra cost and higher property taxes to break out of the trap? Owners brag, “My home has appreciated hundreds of thousands of dollars.” That elation is short-lived. Mr. Foster explains “that appreciation is somewhat irrelevant if it is not enough for you to make a like-for-like exchange in real time. Compared to other ‘real’ real estate, your deed-restricted title is immediately devalued because you are unable to move into a comparable ‘freehold house’ for the same money in the same area. When defining appreciation, the owner must subtract all assessment payments made during ownership to see the real picture.”
Owners in this environment are burdened with a double financial risk because they essentially relinquish control of their assets to an elected board of directors. Mr. Foster cautions, “The owner’s financial crisis differs substantially from the association’s financial crisis. An association always has ‘cash requirements,’ and by law it can raise cash on demand from each owner. Even with this ability, these communities can remain in a constant flux of not being able to meet its liabilities. This means that a ‘gain’ for the association results in a corresponding ‘loss’ for each owner, subjecting seniors in particular to potential personal financial distress.”
Raising owner fees to replenish the association’s operating accounts in order to stay solvent can go on indefinitely. Environments like these are time-consuming and expensive, with little or no tangible return for the owner. Trying to protect yourself takes extensive planning and the financial means to sustain oneself during this time, with no guaranteed success. Every problem the owner encounters steals income, days, weeks, months, and years away from their life -- none can be recovered.
------------------------------------------------------------
--Ms. Vanitzian, BA, JD, is an Arbitrator, commercial property manager and certified mediator with the L.A. City Attorney's Dispute Resolution Program. She authors the Los Angeles Times Associations column and is a UCLA Extension Professor for the course, Protecting Yourself in Common Interest Living. Her book, Villa Appalling! Destroying the Myth of Affordable Community Living, is touted as the "Ultimate Buyer Beware" guide. Contact: VillaAppalling@earthlink.net or write P.O. Box 11843, Marina del Rey, CA 90295.
Donie Vanitzian, BA, JD, Arbitrator
(c)2006
Why would anyone buy a home with all the trappings of property ownership, mortgage, taxes, upkeep, and not have full control over it, and then risk losing it through non-judicial foreclosure? If you own a condominium, townhouse, or single-family dwelling located in a common interest development, your ownership is a risk because it is “inferior” to all other types of real property ownership. Even with taxes paid and no mortgage, it does not mean you completely “own” that property. In such developments, the owner’s asset basically consists of nothing more than the “space inside” his home and a “fractional interest in common” with all other owners.
Even if your home is damaged or destroyed (as with the Northridge earthquake) you still cannot escape liability and payments because a common interest development exists in “perpetuity” (forever) and, California courts have ruled such property cannot go bankrupt because every owner must keep paying.
An association can dominate your lifestyle, control resales, interfere with your livelihood, and curtail your activities. Just because you can afford to move “in” does not mean you can afford to “stay” or that you can afford to move “out.” Most buyers are not advised that they must have a steadily increasing income to keep up with escalating costs and trumped up fees when purchasing or refinancing. Owners who cannot afford to pay their association’s demands for any increased fees and assessments that can cost thousands of dollars per owner cannot stay. Make no mistake: all the cash capital in the association’s bank accounts is generated from each owner.
Certified Personal Financial Planner and Real Estate Broker, Thomas Foster of Marina del Rey, explains, “Once the deception of association-type living is uncovered, the obvious next move is to immediately cut your losses and get out of there. It is only then, that owners discover the trap they’re in. Moving from a deed-restricted property to one without restrictions of similar size and location may at first appear to be a ‘like-for-like exchange’ however, when it comes to pricing that’s where the similarity ends. The fact remains that unrestricted property is much more valuable than it’s restricted counterpart.”
The big question for owners who bought into this “affordable living fraud” is; can they afford the extra cost and higher property taxes to break out of the trap? Owners brag, “My home has appreciated hundreds of thousands of dollars.” That elation is short-lived. Mr. Foster explains “that appreciation is somewhat irrelevant if it is not enough for you to make a like-for-like exchange in real time. Compared to other ‘real’ real estate, your deed-restricted title is immediately devalued because you are unable to move into a comparable ‘freehold house’ for the same money in the same area. When defining appreciation, the owner must subtract all assessment payments made during ownership to see the real picture.”
Owners in this environment are burdened with a double financial risk because they essentially relinquish control of their assets to an elected board of directors. Mr. Foster cautions, “The owner’s financial crisis differs substantially from the association’s financial crisis. An association always has ‘cash requirements,’ and by law it can raise cash on demand from each owner. Even with this ability, these communities can remain in a constant flux of not being able to meet its liabilities. This means that a ‘gain’ for the association results in a corresponding ‘loss’ for each owner, subjecting seniors in particular to potential personal financial distress.”
Raising owner fees to replenish the association’s operating accounts in order to stay solvent can go on indefinitely. Environments like these are time-consuming and expensive, with little or no tangible return for the owner. Trying to protect yourself takes extensive planning and the financial means to sustain oneself during this time, with no guaranteed success. Every problem the owner encounters steals income, days, weeks, months, and years away from their life -- none can be recovered.
------------------------------------------------------------
--Ms. Vanitzian, BA, JD, is an Arbitrator, commercial property manager and certified mediator with the L.A. City Attorney's Dispute Resolution Program. She authors the Los Angeles Times Associations column and is a UCLA Extension Professor for the course, Protecting Yourself in Common Interest Living. Her book, Villa Appalling! Destroying the Myth of Affordable Community Living, is touted as the "Ultimate Buyer Beware" guide. Contact: VillaAppalling@earthlink.net or write P.O. Box 11843, Marina del Rey, CA 90295.
Tuesday, May 30, 2006
BUYER BEWARE, PART I: THE ILLUSION OF "PROPERTY" OWNERSHIP
BUYER BEWARE, PART I: THE ILLUSION OF "PROPERTY" OWNERSHIP
Donie Vanitzian, BA, JD, Arbitrator
(c)2006
If your idea of home ownership involves freedom of choice, control over your assets, the ability to alter or upgrade your property using contractors you choose without first having to ask permission; then do not buy property in a common interest development with a deed-restricted title. Even relatively simple decisions such as putting up a for-sale sign in your front yard or having a garage sale can require written permission resulting in delay after delay.
In California, ownership of a townhome, condominium, co-operative, including high-rise luxury condominiums, means you own an "undivided interest in-common in a portion of real property coupled with a separate interest in space called a unit;" the "space" within your walls can "be filled with air, earth, or water." Owners of deed-restricted free-standing homes do not fare much better because they don't really "own" the land their home sits on and they too, are subject to the same rules and regulations that condominium owners are burdened with. Before purchase, always ask if it is located in a "common interest development" and if it has a "homeowners association." If an association exists, there will also be a "board of directors," and "covenants, conditions, and restrictions," otherwise known as "CC&Rs."
An "association" is a fictional entity. Whether incorporated or unincorporated, that entity is not a democracy and it is certainly not a "home" in the traditional sense. Compared to freehold ownership, this type of property ownership places titleholders in an inferior position. Though it may seem unclear and confusing figuring this out, owners must understand the relevance of their inferior status. Treat the association as a corporate fiction created to operate a business, the business being the "association." Know too, that it is impossible to reason with a "fiction."
Mr. Karen Sarkisyan, a Realtor-Associate with Century 21 P & S Realty, Los Angeles, is a seventeen-year veteran selling real estate. Explaining to buyers eager to purchase deed-restricted property "this means you have also simultaneously purchased a 'business' run by people [association board of directors] you have never met, didn't vote for and may have nothing in common with."
In addition to the upkeep of your own property, you are responsible for funding the association's bank accounts and paying for repairs and maintenance of common property. Instead of paying for only one roof (your roof), you may have to share the cost of paying for 100 or 1,000 roofs. If the board and management keep the association mired in unnecessary or costly perpetual maintenance schemes, all owners must pay for those oft-times poor decisions, even if they disagree with them.
The industry has made it so complicated to own in a deed-restricted project, that the owner’s near-perfect purchase of a home would require being an attorney, psychiatrist, police officer, accountant, professional engineer, plumber, electrician, roofer, construction expert and knowledgeable of all state and local building codes and laws, because this is what you need in order to protect yourself.
No one forces buyers to "Sign here and buy this property!" It is assumed that the purchaser understands what he is buying and does so voluntarily. Even if the owner claims he did not know of those documents, the law presumes the owner knows of the existence and content of these documents because they are "recorded" on the title. Mr. Sarkisyan warns, "Once the buyer signs that they accept these terms, they cannot come back and say they did not know what they were getting into."
In addition to "recorded" documents there are "other" documents you may know nothing about. Such rules may stop you from renting out your home, having guests stay overnight, leaving your trashcan out, leaving your lights on past a particular hour, doing laundry after a certain time, color of your plant pots, swimming in the pool, and so much more. Breaking rules will cost you money through fines and missing an assessment payment can cost you your home. Through non-judicial foreclosure, a homeowners association can foreclose on your property without ever stepping foot in court. In California, owners have been known to lose their homes for owing the association as little as $142.00.
An association board allowed a 120-member swim team to dominate the swimming pool every summer and spring and exclude owners from use. "I cringe every time I hear a buyer say, 'it's such a nice, clean, safe, neighborhood and the neighbors seem nice too.' They have no idea about the liabilities lurking beneath that facade," says Alisa Ross of Irvine who was forced to expend tens of thousands of dollars of her own money to sue her association in order for her children to be able to use the swimming pool; the maintenance of which was included in her homeowner dues.
“We pay our money and keep our mouths shut. Never in a million years did we think we would be spending our golden years mired in paperwork and excessive fees, and under constant threat of being sued,” Corkey Eley, Leisure World, Laguna Woods. During a dispute that began over the association's accusation that his window was "leaking," Gerry Brace of Play del Rey, says, "every single nightmare that I can remember that I had for over a year was about my homeowner association. Sometimes, I would wake and find reality was worse than the nightmare had been!" In another case, a $10 bamboo shade nearly cost one owner her home, her life savings, and drove her to the brink of suicide.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
--Ms. Vanitzian, BA, JD, is an Arbitrator, commercial property manager and certified mediator with the L.A. City Attorney's Dispute Resolution Program. She authors the Los Angeles Times Associations column and is a UCLA Extension Professor for the course, Protecting Yourself in Common Interest Living. Her book, Villa Appalling! Destroying the Myth of Affordable Community Living, is touted as the "Ultimate Buyer Beware" guide. Contact Ms. Vanitzian at: VillaAppalling@earthlink.net or write P.O. Box 11843, Marina del Rey, CA 90295.
Donie Vanitzian, BA, JD, Arbitrator
(c)2006
If your idea of home ownership involves freedom of choice, control over your assets, the ability to alter or upgrade your property using contractors you choose without first having to ask permission; then do not buy property in a common interest development with a deed-restricted title. Even relatively simple decisions such as putting up a for-sale sign in your front yard or having a garage sale can require written permission resulting in delay after delay.
In California, ownership of a townhome, condominium, co-operative, including high-rise luxury condominiums, means you own an "undivided interest in-common in a portion of real property coupled with a separate interest in space called a unit;" the "space" within your walls can "be filled with air, earth, or water." Owners of deed-restricted free-standing homes do not fare much better because they don't really "own" the land their home sits on and they too, are subject to the same rules and regulations that condominium owners are burdened with. Before purchase, always ask if it is located in a "common interest development" and if it has a "homeowners association." If an association exists, there will also be a "board of directors," and "covenants, conditions, and restrictions," otherwise known as "CC&Rs."
An "association" is a fictional entity. Whether incorporated or unincorporated, that entity is not a democracy and it is certainly not a "home" in the traditional sense. Compared to freehold ownership, this type of property ownership places titleholders in an inferior position. Though it may seem unclear and confusing figuring this out, owners must understand the relevance of their inferior status. Treat the association as a corporate fiction created to operate a business, the business being the "association." Know too, that it is impossible to reason with a "fiction."
Mr. Karen Sarkisyan, a Realtor-Associate with Century 21 P & S Realty, Los Angeles, is a seventeen-year veteran selling real estate. Explaining to buyers eager to purchase deed-restricted property "this means you have also simultaneously purchased a 'business' run by people [association board of directors] you have never met, didn't vote for and may have nothing in common with."
In addition to the upkeep of your own property, you are responsible for funding the association's bank accounts and paying for repairs and maintenance of common property. Instead of paying for only one roof (your roof), you may have to share the cost of paying for 100 or 1,000 roofs. If the board and management keep the association mired in unnecessary or costly perpetual maintenance schemes, all owners must pay for those oft-times poor decisions, even if they disagree with them.
The industry has made it so complicated to own in a deed-restricted project, that the owner’s near-perfect purchase of a home would require being an attorney, psychiatrist, police officer, accountant, professional engineer, plumber, electrician, roofer, construction expert and knowledgeable of all state and local building codes and laws, because this is what you need in order to protect yourself.
No one forces buyers to "Sign here and buy this property!" It is assumed that the purchaser understands what he is buying and does so voluntarily. Even if the owner claims he did not know of those documents, the law presumes the owner knows of the existence and content of these documents because they are "recorded" on the title. Mr. Sarkisyan warns, "Once the buyer signs that they accept these terms, they cannot come back and say they did not know what they were getting into."
In addition to "recorded" documents there are "other" documents you may know nothing about. Such rules may stop you from renting out your home, having guests stay overnight, leaving your trashcan out, leaving your lights on past a particular hour, doing laundry after a certain time, color of your plant pots, swimming in the pool, and so much more. Breaking rules will cost you money through fines and missing an assessment payment can cost you your home. Through non-judicial foreclosure, a homeowners association can foreclose on your property without ever stepping foot in court. In California, owners have been known to lose their homes for owing the association as little as $142.00.
An association board allowed a 120-member swim team to dominate the swimming pool every summer and spring and exclude owners from use. "I cringe every time I hear a buyer say, 'it's such a nice, clean, safe, neighborhood and the neighbors seem nice too.' They have no idea about the liabilities lurking beneath that facade," says Alisa Ross of Irvine who was forced to expend tens of thousands of dollars of her own money to sue her association in order for her children to be able to use the swimming pool; the maintenance of which was included in her homeowner dues.
“We pay our money and keep our mouths shut. Never in a million years did we think we would be spending our golden years mired in paperwork and excessive fees, and under constant threat of being sued,” Corkey Eley, Leisure World, Laguna Woods. During a dispute that began over the association's accusation that his window was "leaking," Gerry Brace of Play del Rey, says, "every single nightmare that I can remember that I had for over a year was about my homeowner association. Sometimes, I would wake and find reality was worse than the nightmare had been!" In another case, a $10 bamboo shade nearly cost one owner her home, her life savings, and drove her to the brink of suicide.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
--Ms. Vanitzian, BA, JD, is an Arbitrator, commercial property manager and certified mediator with the L.A. City Attorney's Dispute Resolution Program. She authors the Los Angeles Times Associations column and is a UCLA Extension Professor for the course, Protecting Yourself in Common Interest Living. Her book, Villa Appalling! Destroying the Myth of Affordable Community Living, is touted as the "Ultimate Buyer Beware" guide. Contact Ms. Vanitzian at: VillaAppalling@earthlink.net or write P.O. Box 11843, Marina del Rey, CA 90295.
Wednesday, March 23, 2005
Senior Life Magazine, March 2005 editionSenior Condo Purchases, Part Five: A World Of Scary Stuff
Senior Life Magazine, March 2005 editionSenior Condo Purchases, Part Five: A World Of Scary Stuff By Donie Vanitzian BA, JD, Arbitrator(c) 2005 Vanitzian Condominiums and townhouses are deceptive facades of worry free idyllic living. Many sales agents are unaware or unwilling to jeopardize their “sale” by painting a true picture of what really goes on in their Venus Flytraps of “affordable” living. It is only after the purchase that unwary buyers realize fees, and other costs, escalate quickly and can rise beyond their means. Without unlimited funds, or a friend or family member with the tremendous stamina, generosity, money, time, intellect and know-how to fight for your interests, purchasing this type of property is a risk. In this environment one cannot afford to be lazy or apathetic about protecting one’s interests or expect “others to take care of them.” All too often, dissatisfied owners become scared of the consequences of standing up for their rights. Instead, they opt to live inconspicuously under the jackboot of an oppressive association. Unless you have the courage to stand up and be counted, particularly senior owners, who are most at risk don’t buy residential deed-restricted property. No owner wants to believe that bad things will happen to them, so they are usually unprepared. Never in a million years did the following owners expect to be faced with the outrageous examples described below.They’re spending your money For millions of California titleholders “workplace theft” occurs inside their homeowner association. Recently, owners at one development who were denied access to association books and records, and never bothered to audit the accounts, lost over $340,000. It turned out that several days a week the association manager was seen dropping as much as $500 on tips, drinks and lap dances at a local topless club. In fact, he was spending embezzled association dues belonging to several hundred owners. Similar fraud on a grand scale has increasingly been uncovered, but only after millions of dollars have gone missing from thousands of California titleholders. Some of those indicted by a Federal Grand Jury serve time, but the money is gone forever. Individuals spending the money often played the socialite at community functions, hosted luncheons, sponsored fundraisers, took fantastic vacations and turned into instant property moguls, while those they stole from scrimped and saved to pay for medications, doctor bills and mortgages. Although no one likes to think of it this way, the truth is that it was the apathetic owners who allowed management to levy bogus fines and late charges, use association funds for personal cars and shopping sprees, and lie about the management company’s financial health (until it filed bankruptcy). And the damage can add up quickly. More than 110 associations recently lost millions, and during a surprisingly short period of time.Dead bolts and alarms won’t protect you As an example of what owners are up against, California court documents revealed that one association had 24-hour security guard patrol and gates, and every house had an alarm system monitored by association security. Yet, one owner, herself a doctor and senior, while in the process of moving out with her elderly mother, despite the fact that she took extraordinary precautions in securing their personal belongings (in addition to the house alarm, she had separate deadbolts installed on closets, and every door inside the house including a “silver closet” was connected to a private alarm system), on the same day, after the owner left, the association manager had a locksmith change the house locks and gave security guards copies of the new keys. The manager’s excuse to the court was concern that the elderly owner might “strip the property and damage it.” Returning to remove her belongings, and finding that the locks had been changed, the owner phoned management explaining her need to get her things but that she was locked out. The manager said, “Call your attorney, make an appointment.” The owner drove to the management office and requested an appointment, but the manager refused, saying, “That’s unacceptable, contact your attorney.” At trial the manager did not remember ever talking to the owner, using the excuse, “the attorneys were handling it.” The manager denied telling the owner that she could not get her belongings out of the house, but admitted the owner’s appointment request was refused because, “security couldn’t accommodate that time of the morning.” The manager did confess that the owner could have come anytime Monday through Friday, between 9 and 5, without an appointment. Employees testified the board and management knew the owner’s personal property remained inside the house, but the board “decided to change the locks anyway.” Finally admitting she knew some “things” remained in the garage, the manager claimed she was unaware property “of any value” was inside. When the owner arrived at the house, a security guard unlocked the front door, finally letting her inside. Hidden keys to locked closets were lying openly on a living room bar. Her valuable rugs, pre- Columbian pottery, and priceless Navajo blankets and serapes were missing, as was an expensive urn containing her father’s ashes. She opened the dead-bolted and alarmed closets to find that all her heirloom Tiffany and gold and silver items were gone. Even though the association interfered with the owner’s possessions, the judges claimed they did it to safeguard the house, saying, “There was simply no evidence of how the owner’s personal property disappeared.”Excuse: We’re just the agents Often, harassment techniques are used to invade an individual’s privacy. One owner suffered from a congenital cardiac condition known as hypertrophic cardiomyopathy, resulting in neurological impairments and multiple strokes. But that wasn’t convincing enough for the board to let him park in a handicapped parking space closer to his unit. He was forced to sue the management company and board for retaliation, intimidation and invasion of privacy for refusing disability accommodation. His name was forged on items, causing him to be billed for unauthorized purchases. He received anonymous threatening and offensive letters, his condo door was spit on, trash was dumped on his car, his tires were punctured, his handicapped parking sign was defaced, and pornographic pictures were left on his doorstep. After plowing snow into his assigned parking spot, the board fined him for overnight parking in a handicapped parking spot. Threats and humiliation escalated when Nazi swastikas were placed on his car and anti-Semitic signs and placards with his name were found lining the building hallways. The management company’s defense, “We’re simply the agent for the association and can’t be liable for violations,” was described as preposterous by the judges. The “board of directors in concert with the management company intentionally ignored this disabled homeowner’s requests for a more accessible parking space,” the court said, “We hold agents, as well as the association liable” for such violations.Excuse: We were just following orders When an owner suffering from Tourette’s Syndrome was victimized at the hands of his association and management company, judges hearing the case said that the “Property Manager did more than follow the Association’s orders, it threatened Mr. and Mrs. Marthon with fines and told Mrs. Marthon she could stay only if her husband left. It issued notices of violation, hired and encouraged expert witnesses to secretly test Mr. Marthon’s disability, sent letters purporting to terminate their rights as unit owners, and then distributed an intentionally deceptive story of this lawsuit to enrage the other owners against the Marthons, all of which are discriminatory acts against the Marthons.” Shamelessly, the management company advanced a “Teflon defense,” using the excuse that it was free from blame, and protected from liability, because all of its actions were taken at board direction. The manager’s excuse, “I was only following orders,” was rejected as a sort of Nuremberg Defense. The court recognized that, “Not only did the Manager avoid speaking up, it did not even question the legality of actions taken against these owners.”I hear you knocking, but you can’t come in When Robert Cunningham bought his association home, he was elderly, single, living alone, and suffering with Hodgkin’s disease. Threatened by letters about his housekeeping inadequacies and tortured by constant reminders to pay association attorney fees of more than $34,000, in response, Cunningham sued his board for violating his right to privacy. His board threatened him with litigation to gain entry to his home and force him to throw out personal belongings it called “debris.” They wanted to inspect his home to “prevent undesirable effects” and “maintain property values,” so Robert opened the door and let them in. They ordered him to clear his bed of all paper and books, remove newspapers, cardboard boxes and magazines from the floor around his bed, dresser, living and dining rooms, not use his downstairs bathroom for storage, and change interior lighting. Part of their letter read, “The Association suggests that all outdated clothing that has not been worn in the last five years be removed and/or donated to the Salvation Army or similar organization. This would allow the upstairs bathroom to be used for what it was designed for. Any other remaining clothes could be stored in a walk-in closet. Books that are currently shelved, and which are considered standard reading material, can remain in place.” Outraged, the judges seriously doubted when Robert purchased his home he contemplated an association “would ever tell him to clean up his own bedroom like some parent nagging an errant teenager. Here, we have a clear cut case of a ‘nanny state,’ nanny in almost a literal sense of the association going too far.”Knock, knock. Who’s there? Vera Armstrong Cherry never expected to answer her front door and be met by two unannounced ambulance workers that heavily sedated her, forcibly strapped her to a gurney, and carted her off to a county psychiatric institution. No one told her where she was going, but they left her two children alone in the house without their mother for five days. Vera’s crime? She felt patriotic on Election Day and flew her “Missing In Action” flag alongside the American Flag in honor of her missing husband who had been shot down over Vietnam in 1967. But since she flew it from a flagpole belonging to her association, someone in authority at the association authorized the action to have Vera declared “5150” (grounds for detention due to a mental disorder). The Public Defender filed a writ of habeas corpus to get Vera released. She cries because her children’s college fund of over $75,000 was depleted due to this incident, “They say I am crazy because it’s a good way to discredit me.”The cat’s meow Out of 1300 residents, it only took one neighbor nosey enough to peer into someone else’s unit and allegedly spot ailing, housebound kitties, to jumpstart a costly litigation nightmare for the unit owner. After the stressful ordeal stole precious years of her life, and tens of thousands of dollars, Natore Nahrstedt was ordered to sell her condo and move because she refused to get rid of her kitty cats. According to her lawyer, Joel Tamraz, “Mrs. Nahrstedt carried the kitties everywhere, their little paws never, not once, touched the common area … ever!” In what has come to be known as “the famous cat case with the famous dissent,” California Supreme Court Justice Armand Arabian memorialized his disagreement with the court by quoting Albert Schweitzer, “There are two means of refuge from the misery of life: music and cats.” Justice Arabian found the court’s siding with the association and its rendition of the facts, as reflecting a “narrow, indeed chary, view of the law that eschews the human spirit in favor of arbitrary efficiency.” In his view, “the resolution of this case well illustrates the conventional wisdom and fundamental truth of the Spanish proverb, ‘It is better to be a mouse in a cat’s mouth than a man in a lawyer’s hands.’” That warning is not lost on Corkey and Noni Eley of Leisure World, Laguna Woods. Flanked by lawyers’ threats, runaway costs, unaccountability with no statutory protections for owners, when asked if they had any advice for seniors wanting to purchase a condo, the sisters immediately chime in, “Don’t.”
SENIOR CONDO PURCHASES, PART FOUR: A WORLD OF PRIVACY INVASIONS
SENIOR CONDO PURCHASES, PART FOUR: A WORLD OF PRIVACY INVASIONSMarch 2005By Donie Vanitzian, BA, JD, Arbitrator(c) Vanitzian
"Privacy is the right to be alone the most comprehensive of rights, and the right most valued by civilized man." When Justice Brandeis penned those words he did not live in a homeowner association.
Owners of deed-restricted homes and property in common interest developments are at the mercy not only of the homeowner association and boards of directors but also third-party vendors hired by the board, including management companies, consultants, and attorneys, all of which can affect the owners' quality of life.
Of the many risks associated with such ownership, rarely are owners warned of the need to protect their personal information from inside theft. Whether knowingly or unknowingly, many condo owners carelessly give away personal information without a second thought. In reality, any types of personal privacy invasions and identity theft occur when others invade "places" or "things" where you or your information has been, is, or might be located. Such invasions are not just about "identity," "tangible documents" and "cash," they include the right to "quiet enjoyment" of your home.
WHY YOU?Privacy invasions can occur when owners "voluntarily" make their information available to intrusions by others. Because the information frequently requested by associations, management companies, or vendors seems so innocuous, owners usually give it up readily without express assurances of confidentiality and non-disclosure. Unfortunately, owners wrongly assume that their information will not be misused or that it will only be used for a specific purpose. The opposite is true.
Information gathered by boards, management companies and other entities can be disseminated, shared and sold without the owners' knowledge. Such information is all too often the kind of intimate personal information most valuable to identity thieves.
California Penal Code section 530.5 describes "personal identifying information," to include your name, address, telephone number, driver's license number, social security number, place of employment, mother's maiden name, birth date, taxpayer identification, savings and checking account numbers, biometric data, birth and death certificates.
Employees in any workplace including an association can take identifying material about you. With the theft being difficult to prove, such information is easily stolen. Furthermore, you don't have to be rich to be a victim, the sort of nest egg, credit, or substantial equity in property that most seniors have is incentive enough for any opportunist.
The personal nature of such crimes leaves senior victims in particular traumatized. Because many owners become complacent and mechanically accept what goes on in their association, extracting information voluntarily or gaining entry into a home can be easily accomplished. To avoid confrontation or expenditures to enforce their rights, owners are scared into closing their eyes to what goes on around them, creating more victims.
THEFT RIGHT UNDER YOUR NOSEAll information, personal or otherwise, that an association obtains can be copied, sold, borrowed, shared, "lost" or saved for a later date when it can be used against you by the association or those they do business with. Once account information is obtained, accounts can be depleted, owners be sued, or simply die. Because the criminal knows your net worth at death, invoices submitted to your estate are usually paid without question.
"Management walks right into my home, and they have my mailbox keys! I complain but nobody does anything." Harold, Orange.
Associations and their cohorts can invade owner privacies in multiple ways. Perpetual maintenance schemes tend to bring an army of strangers into your environment. The treasure hunt begins when boards and hungry vendors tour the grounds searching for ways to spend your money.
Whether under the pretext of "maintenance" or "in case of emergency," some boards, vendors and management employees request keys to individual homes. Unfortunately, owners wanting to be seen as cooperative not only hand over their keys but may also disclose other confidential information that should not be divulged. Drivers licenses and social security numbers are given to people that seniors describe as, "a very nice person" or merely because someone "told" them to do so. When asked why they gave personal documents or information to a person whose name they weren't sure of, one senior told me, "Because I see him around here all the time."
Easily impressed by a worker's title, another confidently says, "Oh, he's the manager." "When we dial 911, or when an owner dies, management is usually the first to know. They are first to enter our homes if we're taken to the hospital or die. I want to know what right they have to enter our homes like that and what are they doing in there?" Senior, Irvine.
THICK AS THIEVESIn addition to financial consequences, the profoundly personal nature of this type of theft often leaves victims severely traumatized. According to the Santa Clara Public Guardian's Office, older victims of identity theft invasions "suffer a mortality rate that is three times higher than those who are not so abused." Imagine the further impact when learning the association or affiliate, enabled the theft.
There is a great risk for identity theft in developments that attract buyers to what may seem like a friendly, one-stop living environment replete with sales and escrow personnel, travel agencies, and recreational facilities. Communities allowing vendors to operate this type of monopoly are a rich source of clientele for schemes and scams. These exclusive vendors not only collect and share information, but they eliminate competition, driving up costs for owners.
More insidiously, a trusted vendor might place pressure on owners who are least likely to understand the consequences of their actions. Free seminars provided by vendors or so-called "professionals" including attorneys, might be nothing more than calculated adverts convincing owners to part with their money, hire them, or disclose personal information. Some are couched in terms of "improve your health and wealth," while others target impressionable directors or committees on various "How To" topics regarding associations, when in fact they are nothing more than Trojan horses wanting your precious information or a piece of your assets.
A DECEPTIVELY EASYGOING CLIMATE OF FEAR, INTIMIDATION, AND PRIVACY INVASIONSIn the last years of their lives, many senior condo owners who want only to live peacefully while controlling their expenses are forced to adapt to a climate of fear amidst privacy intrusions and trying to tell friend from foe. In the process, many plunge tragically into a state of social dependence.
Predictably, it is only a matter of time before each owner leaves permanently, which may explain why boards frequently respond to senior complaints with "sue us." The National Committee for the Prevention of Elder Abuse explains that "abusers may assume that frail victims will not survive long enough to follow through on legal interventions, or that they will not make convincing witnesses." Owners are reduced to chipping away at the big problems by reporting on the tiniest instances of their discontent because they are simply unable to accomplish much else.
ENTER THE GRANDMA BRIGADEBeing assertive is apparently no longer enough. Tired of being dictated to, and realizing they were in danger of losing all their money and assets, a group of seniors began taking situations into their own hands, forming an underground group called The Grandma Brigade. Like vigilantes, and with the same intensity as bounty hunters tracking criminals, these seniors have been hunting down and checking on protections they wrongly assumed they had.
They learned that laws meant to protect consumers were tucked away in cross-referenced statutes and complicated case law which, once located, were often repealed or overturned. The Brigade ferrets out what little protections remain, and functions as a support group. With limited physical and financial resources, they efficiently divide and assign specific tasks to smaller combat squads. Each squad is given a deadline to deliver a completed task. They are organized for specific purpose, to get accurate information and report back to Brigade Headquarters.
"We don't have a lot of time left, if you know what I mean," one commando explains, "we're not that young and our association knows it, so they take advantage of us."
Another commando adds, "They think they will wear us out and we'll either disappear or die so they can throw our file out, and in some cases they've succeeded." They say, "The other owners don't understand what's going on. By the time they figure it out, it will be too late."
But they are not deterred, "it's do, or die," says another squad member. Members of the Brigade prefer to stay underground for now, because of the great price they might pay if they are exposed. We will continue to track this story and provide more information as it becomes available, and is safe to reveal.
Southern California Senior Life editor's note: Because of an overwhelming response from our readers to this series, there will be a concluding Part FIVE. Most seniors really believe this won't happen to them. It does. It will. It will continue.
"Privacy is the right to be alone the most comprehensive of rights, and the right most valued by civilized man." When Justice Brandeis penned those words he did not live in a homeowner association.
Owners of deed-restricted homes and property in common interest developments are at the mercy not only of the homeowner association and boards of directors but also third-party vendors hired by the board, including management companies, consultants, and attorneys, all of which can affect the owners' quality of life.
Of the many risks associated with such ownership, rarely are owners warned of the need to protect their personal information from inside theft. Whether knowingly or unknowingly, many condo owners carelessly give away personal information without a second thought. In reality, any types of personal privacy invasions and identity theft occur when others invade "places" or "things" where you or your information has been, is, or might be located. Such invasions are not just about "identity," "tangible documents" and "cash," they include the right to "quiet enjoyment" of your home.
WHY YOU?Privacy invasions can occur when owners "voluntarily" make their information available to intrusions by others. Because the information frequently requested by associations, management companies, or vendors seems so innocuous, owners usually give it up readily without express assurances of confidentiality and non-disclosure. Unfortunately, owners wrongly assume that their information will not be misused or that it will only be used for a specific purpose. The opposite is true.
Information gathered by boards, management companies and other entities can be disseminated, shared and sold without the owners' knowledge. Such information is all too often the kind of intimate personal information most valuable to identity thieves.
California Penal Code section 530.5 describes "personal identifying information," to include your name, address, telephone number, driver's license number, social security number, place of employment, mother's maiden name, birth date, taxpayer identification, savings and checking account numbers, biometric data, birth and death certificates.
Employees in any workplace including an association can take identifying material about you. With the theft being difficult to prove, such information is easily stolen. Furthermore, you don't have to be rich to be a victim, the sort of nest egg, credit, or substantial equity in property that most seniors have is incentive enough for any opportunist.
The personal nature of such crimes leaves senior victims in particular traumatized. Because many owners become complacent and mechanically accept what goes on in their association, extracting information voluntarily or gaining entry into a home can be easily accomplished. To avoid confrontation or expenditures to enforce their rights, owners are scared into closing their eyes to what goes on around them, creating more victims.
THEFT RIGHT UNDER YOUR NOSEAll information, personal or otherwise, that an association obtains can be copied, sold, borrowed, shared, "lost" or saved for a later date when it can be used against you by the association or those they do business with. Once account information is obtained, accounts can be depleted, owners be sued, or simply die. Because the criminal knows your net worth at death, invoices submitted to your estate are usually paid without question.
"Management walks right into my home, and they have my mailbox keys! I complain but nobody does anything." Harold, Orange.
Associations and their cohorts can invade owner privacies in multiple ways. Perpetual maintenance schemes tend to bring an army of strangers into your environment. The treasure hunt begins when boards and hungry vendors tour the grounds searching for ways to spend your money.
Whether under the pretext of "maintenance" or "in case of emergency," some boards, vendors and management employees request keys to individual homes. Unfortunately, owners wanting to be seen as cooperative not only hand over their keys but may also disclose other confidential information that should not be divulged. Drivers licenses and social security numbers are given to people that seniors describe as, "a very nice person" or merely because someone "told" them to do so. When asked why they gave personal documents or information to a person whose name they weren't sure of, one senior told me, "Because I see him around here all the time."
Easily impressed by a worker's title, another confidently says, "Oh, he's the manager." "When we dial 911, or when an owner dies, management is usually the first to know. They are first to enter our homes if we're taken to the hospital or die. I want to know what right they have to enter our homes like that and what are they doing in there?" Senior, Irvine.
THICK AS THIEVESIn addition to financial consequences, the profoundly personal nature of this type of theft often leaves victims severely traumatized. According to the Santa Clara Public Guardian's Office, older victims of identity theft invasions "suffer a mortality rate that is three times higher than those who are not so abused." Imagine the further impact when learning the association or affiliate, enabled the theft.
There is a great risk for identity theft in developments that attract buyers to what may seem like a friendly, one-stop living environment replete with sales and escrow personnel, travel agencies, and recreational facilities. Communities allowing vendors to operate this type of monopoly are a rich source of clientele for schemes and scams. These exclusive vendors not only collect and share information, but they eliminate competition, driving up costs for owners.
More insidiously, a trusted vendor might place pressure on owners who are least likely to understand the consequences of their actions. Free seminars provided by vendors or so-called "professionals" including attorneys, might be nothing more than calculated adverts convincing owners to part with their money, hire them, or disclose personal information. Some are couched in terms of "improve your health and wealth," while others target impressionable directors or committees on various "How To" topics regarding associations, when in fact they are nothing more than Trojan horses wanting your precious information or a piece of your assets.
A DECEPTIVELY EASYGOING CLIMATE OF FEAR, INTIMIDATION, AND PRIVACY INVASIONSIn the last years of their lives, many senior condo owners who want only to live peacefully while controlling their expenses are forced to adapt to a climate of fear amidst privacy intrusions and trying to tell friend from foe. In the process, many plunge tragically into a state of social dependence.
Predictably, it is only a matter of time before each owner leaves permanently, which may explain why boards frequently respond to senior complaints with "sue us." The National Committee for the Prevention of Elder Abuse explains that "abusers may assume that frail victims will not survive long enough to follow through on legal interventions, or that they will not make convincing witnesses." Owners are reduced to chipping away at the big problems by reporting on the tiniest instances of their discontent because they are simply unable to accomplish much else.
ENTER THE GRANDMA BRIGADEBeing assertive is apparently no longer enough. Tired of being dictated to, and realizing they were in danger of losing all their money and assets, a group of seniors began taking situations into their own hands, forming an underground group called The Grandma Brigade. Like vigilantes, and with the same intensity as bounty hunters tracking criminals, these seniors have been hunting down and checking on protections they wrongly assumed they had.
They learned that laws meant to protect consumers were tucked away in cross-referenced statutes and complicated case law which, once located, were often repealed or overturned. The Brigade ferrets out what little protections remain, and functions as a support group. With limited physical and financial resources, they efficiently divide and assign specific tasks to smaller combat squads. Each squad is given a deadline to deliver a completed task. They are organized for specific purpose, to get accurate information and report back to Brigade Headquarters.
"We don't have a lot of time left, if you know what I mean," one commando explains, "we're not that young and our association knows it, so they take advantage of us."
Another commando adds, "They think they will wear us out and we'll either disappear or die so they can throw our file out, and in some cases they've succeeded." They say, "The other owners don't understand what's going on. By the time they figure it out, it will be too late."
But they are not deterred, "it's do, or die," says another squad member. Members of the Brigade prefer to stay underground for now, because of the great price they might pay if they are exposed. We will continue to track this story and provide more information as it becomes available, and is safe to reveal.
Southern California Senior Life editor's note: Because of an overwhelming response from our readers to this series, there will be a concluding Part FIVE. Most seniors really believe this won't happen to them. It does. It will. It will continue.
Monday, December 27, 2004
THE TEMPLE OF BLAME AND HIDE THE MEETING
Donie Vanitzian
Arbitrator
December 27, 2004
Mr. Brian Hebert
Assistant Executive Secretary
cc: Mr. Nat Sterling
California Law Revision Commission
3200 5th Avenue
Sacramento, California 95817
Re: Memorandum 2005-7; Recording of Commission Meetings
Your December 8, 2004 and December 21, 2004 correspondence
Dear Mr. Hebert,
I appreciate your taking the time to tape the past CLRC meeting for me on tapes that I provided, and also, thank you for your response to my December 13, 2004 correspondence regarding the CLRC meeting tapes and proposed change in CLRC policy for public access. The letter stated that the CLRC has decided to now record its meetings digitally, with the public making appointments to listen to the recordings on the CLRC computers at either the Sacramento or Palo Alto offices. Please see my comments to this ridiculousness below.
My concerns then, are the same now. Just as the CLRC’s present documents are available to the public on its website for downloading, so too, can digital recordings be made available to the public as downloads.
As I explained to you, that there is no legitimate reason for the CLRC to disenfranchise any citizen that is unable to accommodate the CLRC’s self-imposed stringent viewing requirements. Forcing individuals to fly, drive, or take a train to Sacramento or Palo Alto merely to “listen” to recordings that can range anywhere from three minutes to thirty hours, is unreasonable and will have a chilling affect on public access. Or, perhaps that is what the CLRC intends, given the power your agency wields over people like me and how I will live in my residential deed-restricted albatross.
DIGITAL RECORDING FILES AND ITS CHILLING EFFECT ON THE PUBLIC OR THE CLRC?
What part of “public” does the CLRC not understand? When one attends a public meeting, one intends to be filmed and recorded.
The CLRC’s statement (pg 2) that “In short, the files will be of no use to most members of the public” blah, blah, blah. You, and your CLRC cohorts are hoping such meetings continue to fly under the radar and little if no attention is drawn to the damage you create with respect to injecting yourselves into the laws under the guise of legitimacy, and creating and recommending what the rest of us will live by. That is why you destroy the tapes right at or under 30 days isn’t it? If you truly were above board as a government agency working for the public there would be no need to destroy even one tape. It is however to your advantage, as you say, to make sure that those who influence you are not heard doing just that on tape.
No different than a homeowner association board of directors! I am stunned by comments like this:
Those who participate in Commission deliberations should expect that their comments might be noted and circulated more broadly. However, our deliberative process depends on a free flowing and frank exchange of views. If meeting participants are worried about an unguarded statement being used against them, they may be less forthcoming.
Too bad.
LEGAL REQUIREMENTS
Many statutes and case laws address issues you raise. For example, in the words of one court, Government Code section 54953.5 provides that “[a]ny person attending an open and public meeting of a legislative body of a local agency shall have the right to record the proceedings on a tape recorder. . . .” Section 54953.7 provides that legislative bodies of local agencies “may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter.” Choice-in-Education League v. Los Angeles Unified School District, 17 Cal.App.4th 415 (1993). It says NOTHING about LESS ACCESS.
If I’m not mistaken, the California Law Revision Commission falls under the auspices of the “government.” Your web site is: www.clrc.ca.gov, emphasis on the “gov.” The employees are civil servants who serve at the pleasure of the public. On November 2, 2004, 7,489,682 Californians approved Proposition 59, otherwise known as the Public Records, Open Meetings Act. The California Constitution, Article 1, Section 3 is expressly amended in part to include, “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” It goes on to say, that this shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
Mr. Hebert, the CLRC influences the laws that I live by. Therefore, as Joe Public, I want to hear every single utterance, every word from every CLRC meeting - and I don’t want another apology for “jumbled” meetings inclusive of “extraneous material” - I want the entire CLRC meeting - every committee - every speaker - in an audible and comprehensible form.
The CLRC bars what clearly should be permitted in making an accurate record of what takes place at such meetings. The action of this Commission is too arbitrary and capricious, too restrictive and unreasonable. Wollam v. City of Palm Springs, 59 Cal.2d 276 (1963); Alves v.Justice Court, 148 Cal.App.2d 419 (1957); 35 Cal.Jur.2d Municipal Corporations, § 228.
There should be no compromise in accurately reporting transactions of a public governing body, particularly in a democracy where truth is often said to be supreme. Governmental measures based upon police power should always be well defined and reasonably exercised. “If a shorthand record of such a meeting is more accurate than long hand notes, then the use of shorthand is to be approved.” Wrather-Alvarez Broadcasting, Inc. v. Hewicker, 147 Cal.App.2d 509 (1957). “If the making of a tape record is a still better method of memorializing the acts of a public body it should be encouraged.” Nevens v. City of Chino, 233 Cal.App.2d 775 (1965). That was 1965!
THE BROWN ACT
As one court stated, “Intent in enacting the Brown Act, Government Code section 54960(a) is clear: “The Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” Los Angeles Times Communications LLC v. Los Angeles County Board of Supervisors, 112 Cal.App.4th 1313, 1321 (2d Dist.2003), review denied (2004).
DISENFRANCHING THOSE OF US WHO NEED ACCESS THE MOST - BUT CAN LEAST AFFORD IT
Let me remind the CLRC that over 4 million Californians are unemployed - yet you remain on the government’s payroll - so it may seem easy for the Commission to place stipulations on others when it does not affect you. This forces individuals to fly, drive, or take a train to Sacramento or Palo Alto merely to “listen” to recordings that can range anywhere from three minutes to thirty hours, and it IS unreasonable. The CLRC is presumably not open on Saturdays and Sundays or evenings. Many of us may have to arrange and pay for babysitters, caretakers, time off from work and other responsibilities, let alone transportation.
For anyone who is immobile, physically challenged and seniors in particular, making arrangements to get to Sacramento or Palo Alto from anywhere in California, is no different than booking a flight to Mars. It is impossible.
Traveling to your offices to listen to tapes every month is unreasonable. It amounts to a penalty for wanting to assert one’s rights.
Your reasoning is flawed and it appears that the only people who will not be inconvenienced by your decisions, are the CLRC and its employees.
Even with the Davis-Stirling Act’s provision for Open Meetings, owners are still unable to enforce it. Why? Because the CLRC refuses to recommend penalties for recalcitrant boards. You will recommend arbitration, mediation, waiting time periods, stipulations on construction defects, architectural control issues, termite control, volunteer status definitions for titleholders, insurance specifications, and a host of other nonsense, but when it comes to penalties against boards, you refuse to touch the topic, instead dancing all around it. Now, those of us who want to see and hear first hand what the hell goes on down there and who and what is responsible for bastardizing these laws, the CLRC is shocked! Surprised! And then unilaterally pulls the plug in hopes it will prevent public access.
CONCLUSION
As a Systems Analyst, I’ll pass on taking apart your preposterous and embarrassingly flawed arguments on File Size and Format Incompatibility. Let it suffice to say, the CLRC was ill informed and I hope you didn’t pay for that advice with taxpayer funds. Even the British and Scottish Parliaments make their sessions available via Internet, some in real time, so too can the CLRC.
Sincerely,
D. Vanitzian
Arbitrator
December 27, 2004
Mr. Brian Hebert
Assistant Executive Secretary
cc: Mr. Nat Sterling
California Law Revision Commission
3200 5th Avenue
Sacramento, California 95817
Re: Memorandum 2005-7; Recording of Commission Meetings
Your December 8, 2004 and December 21, 2004 correspondence
Dear Mr. Hebert,
I appreciate your taking the time to tape the past CLRC meeting for me on tapes that I provided, and also, thank you for your response to my December 13, 2004 correspondence regarding the CLRC meeting tapes and proposed change in CLRC policy for public access. The letter stated that the CLRC has decided to now record its meetings digitally, with the public making appointments to listen to the recordings on the CLRC computers at either the Sacramento or Palo Alto offices. Please see my comments to this ridiculousness below.
My concerns then, are the same now. Just as the CLRC’s present documents are available to the public on its website for downloading, so too, can digital recordings be made available to the public as downloads.
As I explained to you, that there is no legitimate reason for the CLRC to disenfranchise any citizen that is unable to accommodate the CLRC’s self-imposed stringent viewing requirements. Forcing individuals to fly, drive, or take a train to Sacramento or Palo Alto merely to “listen” to recordings that can range anywhere from three minutes to thirty hours, is unreasonable and will have a chilling affect on public access. Or, perhaps that is what the CLRC intends, given the power your agency wields over people like me and how I will live in my residential deed-restricted albatross.
DIGITAL RECORDING FILES AND ITS CHILLING EFFECT ON THE PUBLIC OR THE CLRC?
What part of “public” does the CLRC not understand? When one attends a public meeting, one intends to be filmed and recorded.
The CLRC’s statement (pg 2) that “In short, the files will be of no use to most members of the public” blah, blah, blah. You, and your CLRC cohorts are hoping such meetings continue to fly under the radar and little if no attention is drawn to the damage you create with respect to injecting yourselves into the laws under the guise of legitimacy, and creating and recommending what the rest of us will live by. That is why you destroy the tapes right at or under 30 days isn’t it? If you truly were above board as a government agency working for the public there would be no need to destroy even one tape. It is however to your advantage, as you say, to make sure that those who influence you are not heard doing just that on tape.
No different than a homeowner association board of directors! I am stunned by comments like this:
Those who participate in Commission deliberations should expect that their comments might be noted and circulated more broadly. However, our deliberative process depends on a free flowing and frank exchange of views. If meeting participants are worried about an unguarded statement being used against them, they may be less forthcoming.
Too bad.
LEGAL REQUIREMENTS
Many statutes and case laws address issues you raise. For example, in the words of one court, Government Code section 54953.5 provides that “[a]ny person attending an open and public meeting of a legislative body of a local agency shall have the right to record the proceedings on a tape recorder. . . .” Section 54953.7 provides that legislative bodies of local agencies “may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter.” Choice-in-Education League v. Los Angeles Unified School District, 17 Cal.App.4th 415 (1993). It says NOTHING about LESS ACCESS.
If I’m not mistaken, the California Law Revision Commission falls under the auspices of the “government.” Your web site is: www.clrc.ca.gov, emphasis on the “gov.” The employees are civil servants who serve at the pleasure of the public. On November 2, 2004, 7,489,682 Californians approved Proposition 59, otherwise known as the Public Records, Open Meetings Act. The California Constitution, Article 1, Section 3 is expressly amended in part to include, “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” It goes on to say, that this shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
Mr. Hebert, the CLRC influences the laws that I live by. Therefore, as Joe Public, I want to hear every single utterance, every word from every CLRC meeting - and I don’t want another apology for “jumbled” meetings inclusive of “extraneous material” - I want the entire CLRC meeting - every committee - every speaker - in an audible and comprehensible form.
The CLRC bars what clearly should be permitted in making an accurate record of what takes place at such meetings. The action of this Commission is too arbitrary and capricious, too restrictive and unreasonable. Wollam v. City of Palm Springs, 59 Cal.2d 276 (1963); Alves v.Justice Court, 148 Cal.App.2d 419 (1957); 35 Cal.Jur.2d Municipal Corporations, § 228.
There should be no compromise in accurately reporting transactions of a public governing body, particularly in a democracy where truth is often said to be supreme. Governmental measures based upon police power should always be well defined and reasonably exercised. “If a shorthand record of such a meeting is more accurate than long hand notes, then the use of shorthand is to be approved.” Wrather-Alvarez Broadcasting, Inc. v. Hewicker, 147 Cal.App.2d 509 (1957). “If the making of a tape record is a still better method of memorializing the acts of a public body it should be encouraged.” Nevens v. City of Chino, 233 Cal.App.2d 775 (1965). That was 1965!
THE BROWN ACT
As one court stated, “Intent in enacting the Brown Act, Government Code section 54960(a) is clear: “The Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” Los Angeles Times Communications LLC v. Los Angeles County Board of Supervisors, 112 Cal.App.4th 1313, 1321 (2d Dist.2003), review denied (2004).
DISENFRANCHING THOSE OF US WHO NEED ACCESS THE MOST - BUT CAN LEAST AFFORD IT
Let me remind the CLRC that over 4 million Californians are unemployed - yet you remain on the government’s payroll - so it may seem easy for the Commission to place stipulations on others when it does not affect you. This forces individuals to fly, drive, or take a train to Sacramento or Palo Alto merely to “listen” to recordings that can range anywhere from three minutes to thirty hours, and it IS unreasonable. The CLRC is presumably not open on Saturdays and Sundays or evenings. Many of us may have to arrange and pay for babysitters, caretakers, time off from work and other responsibilities, let alone transportation.
For anyone who is immobile, physically challenged and seniors in particular, making arrangements to get to Sacramento or Palo Alto from anywhere in California, is no different than booking a flight to Mars. It is impossible.
Traveling to your offices to listen to tapes every month is unreasonable. It amounts to a penalty for wanting to assert one’s rights.
Your reasoning is flawed and it appears that the only people who will not be inconvenienced by your decisions, are the CLRC and its employees.
Even with the Davis-Stirling Act’s provision for Open Meetings, owners are still unable to enforce it. Why? Because the CLRC refuses to recommend penalties for recalcitrant boards. You will recommend arbitration, mediation, waiting time periods, stipulations on construction defects, architectural control issues, termite control, volunteer status definitions for titleholders, insurance specifications, and a host of other nonsense, but when it comes to penalties against boards, you refuse to touch the topic, instead dancing all around it. Now, those of us who want to see and hear first hand what the hell goes on down there and who and what is responsible for bastardizing these laws, the CLRC is shocked! Surprised! And then unilaterally pulls the plug in hopes it will prevent public access.
CONCLUSION
As a Systems Analyst, I’ll pass on taking apart your preposterous and embarrassingly flawed arguments on File Size and Format Incompatibility. Let it suffice to say, the CLRC was ill informed and I hope you didn’t pay for that advice with taxpayer funds. Even the British and Scottish Parliaments make their sessions available via Internet, some in real time, so too can the CLRC.
Sincerely,
D. Vanitzian
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