HIRING AN ATTORNEY CAN BE HAZARDOUS TO YOUR HEALTH

August 12, 2007
By Donie Vanitzian (View author info) Copyright Donie Vanitzian
Los Angeles, California - If California can place caps on spending and caps on fees of various types of businesses -- then it needs to put caps on lawyer fees. When attorneys make more money than brain surgeons, its time to say we've had enough.
CALIFORNIA'S "LEGAL" CLIMATE IS STORMY AS HELL!
The English dramatist, Christopher Marlowe (1564-1593), once said "Hell hath no limits, nor is circumscribed, in one self place; for where we are is Hell, and where Hell is, there must we ever be." Whether that brilliant quote was pre- or post-attorneys, we do not know. But, not to worry, there isn't an attorney in California that should be fearful their invoicing capabilities will be curtailed because attorneys have no Hell, they have in fact, a Safe Haven. That safe haven is within the California State Bar. Yes, a trade group with paying members. Yet it should surprise no one that the Hell is saved for us--the clients.
Without dressing the news up to be worse than it is, let it suffice to say it is nevertheless, extremely troubling -- especially for consumers -- and most especially to those victims of bad attorneys. Yet, it appears that the only entity on earth that doesn't realistically understand California's present legal climate is the State Bar. It is business as usual as the State Bar continues to harbor, protect, shield, cater to, and most important, "defend" its own. One thing is certain; the State Bar does not protect consumers who are clients of attorneys and who are victims of attorneys. [FN1]
The public is "raged" and their ire must not be underestimated. Many Californians are without employment or have taken pay cuts in the hope they can keep their jobs. Most worry about paying mortgages, utilities, medical bills and supporting their families. Frankly, California Legislators don't seem to give a damn about the common folk. Those Legislators have a salary and pension that you and I can only dream of and, they are on a road none of us are privileged enough to travel because we do not possess the proper type of vehicle and cannot afford the toll fees to be able to travel on that same road.
CALIFORNIA HAS BECOME A COMPLICATED STATE TO WORK, LIVE, SURVIVE
Most Californian's grew up with an unassuming belief that the law was there to protect them. Because those laws have not helped residential deed-restricted titleholders subject to homeowner associations across this state, those beliefs are "unreasonable." With the onset of homeowner associations, our lives are no longer as we once knew them to be. These groups of titleholders have all but given up on those expectations. No matter how much you paid for that view of the sea, or how many miles of unsoiled greenbelts you are free to jog upon, there is nothing enrapturing about a homeowner association -- this type of development is pure taint. The romantic dreams of owning ones own home and gaining freedom at an affordable price -- are gone. The BEST these titleholders can hope for is to locate an honest and above average attorney for an affordable price on the same day they need one.
Living and doing business in the state of California appears to have become complicated beyond all measure. California's laws are not only "thick" they are poorly written. Thanks to the California Law Revision (Revenge) Commission who have their dirty hands in just about any law that is repealed, rewritten, amended and twisted -- laws, some that have been on our books for decades and easily enforceable by laymen, have become plagued with crossovers and hidden meanings, rendering many of them useless and unenforceable by the very persons they were supposedly written to protect.
The REAL legal analysts that USED to become Legislator staff employees are no more. The NEW so-called legal analysts are usually (1) someone that the Legislator owes a favor to, or (2) some kid wet behind the ears whose mommy or daddy contributed the most bucks to the Senator or Assemblyperson's campaign and wants to pad his kid's resume. That "new" definition of "legal analyst" has denigrated every legislator's position in our government and the result is self-evident. The incompetence is unmitigated.
Those once-simple business transactions now fill volumes of statute-books containing thousands of pages of what many of us term "nonsense" but still sporting language so legal that everyday citizens have to hire an attorney to translate the statutes to them. It is no laughing matter especially when one considers that many of the attorneys we are FORCED to hire (a) don't understand a particular area of law or the statutes themselves but will represent you in spite of that minor detail, (b) may tell you its not their area of expertise but will take you as a client anyway, (c) either way, s/he doesn't have a clue man, but hey, at least they've got a Bar card! As one attorney told me a couple years ago, "For a retainer of $5,000, I can do some research for you."
Fast-forward: The attorneys that DID the research after receiving the $5,000 gave me the $5,000 result as "Inconclusive" and then proceeded to keep the retainer money. Putting the $5,000 price tag aside for a minute, understand what was REALLY lost in that transaction => A precious statute-of-limitations was ticking away in the background and dangerously close to blowing up any chance I might have had for recovery of money owed me by another person. The attorney who was taking his time doing the research obviously talked a good game, did nothing, but substantiated his billing invoice for $5,000 just in case someone turned him or her into the Bar. But, like the attorney told me later, "The Bar doesn't prosecute attorneys for an inconclusive research result."
To the readers of this article: would it make a difference if "I" had already performed the research, gave it to him and then hired the attorney to confirm my findings? Is that worth $5,000? Would you answer the question any differently if you took a research result from your prior attorney and gave it to the new $5,000 attorney and then got an answer that the research is inconclusive? Or the best answer yet: "I'm new to the case so I need to familiarize myself with the facts all over again--if I don't I'll be sued for malpractice." Oh sure. Like, I mean, when was the last time anyone heard an attorney say they were worried about being sued for malpractice? Here's my question: BY WHO? Has ANYONE ever tried to find an attorney that was willing to put their own law license on the line to SUE ANOTHER LAWYER -- A BROTHER OR SISTER LAWYER for malpractice? That's a rare breed indeed if in fact they exist. Before you believe any attorney that tells you they fear being sued for malpractice, do the research yourself. Go dig up statutes that OUTLINE EXACTLY WHAT MALPRACTICE IS -- IF IT EXISTS AT ALL. Good luck.
Hiring an attorney is tough enough, but finding one that YOU can trust and have faith in is even tougher. Sometimes, by the time you find out that the attorney you just hired is the wrong one for you, it is too late. It doesn't matter if the guy who referred you to that attorney trusted him with his life; it doesn't matter if your neighbor used that same attorney for twenty years and trusts him with her life; it doesn't matter how many awards and plaques that attorney has received or how many clients he has; it only matters if YOU trust him and for what REASONS you trust him.
LEGAL BLACKMAIL--TAKING CLIENTS HOSTAGE
There's a joke so old, who knows where it originated, it goes like this: Q: How can you tell when an attorney is lying? A. His lips are moving.
The price of blackmail has just been raised and continues to get raised some more. [FN2] You need an attorney but you can't afford one, hell you're barely making it on your meager salary as it is. Not long ago, an attorney could be hired without a retainer agreement and could also be hired by "transaction" if that was what the client needed. In those days, if you needed a letter to be written and a quote to write that letter you could get one, today it is nearly impossible to get a quote for a single letter. One lawyer told me that he was obligated to write a response -- I said no you are not obligated to write ANY response, I'm not hiring you for that, I just want ONE letter. Ten attorneys later, I could find no one to write ONE letter for me, even at $1,000 for one letter. EACH lawyer I met with wanted a MINIMUM of $5,000 retainer before writing ONE letter and said it would be malpractice if they did not reply if a correspondence was sent back because of my initial letter. That is so damn preposterous. That lawyer is worried about his malpractice to the extent he will land ME in hot water and FORCE me to bankrupt myself to pay for his malpractice insurance all because he wants to glob onto a perpetual retainer agreement payroll so he can keep me mired in letters and hopefully for him, litigation that never ends. HE -- the LAWYER does not decide to respond on my behalf => I <= DECIDE WHETHER THE LAWYER RESPONDS OR NOT ON MY BEHALF. That is what has happened to the Bar protecting their own members. The members run all over the paying public.
In days gone by, (1950 to about 1985) let's say an attorney would charge $200 to write a single letter -- that meant it was just that: $200 was $200. If the attorney had to respond to that letter after he wrote it for you, the client would receive a communication from the attorney explaining that further action is needed and what the cost of that proposed action might be. That's what would happen before he proceeded to respond. Not today!
Today, the attorneys elitist club adds their own measure of inflation to what they believe they are worth. In more than one case that I am aware of, the "$200 letter" of yesteryear has become the basis for obtaining retainers from $5,000 on up and up and up. In a conversation I had with an attorney at a cocktail party, he attempted to substantiate the thousands of dollars demanded for retainer agreements by saying, "look, once you get a paying customer, you have to keep them, the retainer agreement does that." At the same party, another attorney told me that he had huge student loans to pay back and billing clients was a way to accomplish that quickly so he could start showing a "profit."
ATTORNEY CHOICES FOR CALIFORNIA CONSUMERS ARE SPARSE TO NON-EXISTENT
Blame the State Bar for making all paying clients equivalent to walking bankbooks for anyone in the profession of law. That's a scary position to be in -- especially if you are dependent on an attorney.
By limiting the number and/or amount of attorneys that are able to practice law in the state of California consumer choices are extremely limited. The Bar controls how many attorneys can practice law in the state and by doing that, the bar be it inadvertently or intentionally, whichever the case may be, controls fees. The smaller the pool of attorneys to chose from, the higher the fees to hire an attorney become.
The lawyer's and his law firm's records are privileged. Billing is subjected and it is what the attorney tells you it is. Only the most egregious and blatant billing practices are "sometimes" exposed. The word "sometimes" is emphasized.
In one contingency case the client, an old friend of mine, said he didn't understand what "contingency" meant, all he, as the client knew, was what the attorney told him. He said the attorney said wouldn't be expecting any money from my friend until the end of the case. Never mind that the attorney was billing like there was no tomorrow, literally a runaway train. Never mind that the attorney took an out-of-the-country three-week vacation during my friend's intense litigation. Oh, don't worry, the attorney was sure to send copies of his invoices -- with his vacation postcards -- to the client -- not as a courtesy, but to cover his ass when the State Bar complaints rolled in. "See, I sent the client timely invoices all along." As for the accuracy of those attorney generated invoices, that's anybody's guess. It appears that the Bar's interest is merely in the "sending of the invoices" not the authenticity of them. Hidden somewhere in that contingency agreement that the client did not expect was a clause stating the client was responsible for the fees irrespective of the agreement being a so-called contingency. The client ended up paying the exorbitant fees, much of which was unsubstantiated because the attorney told him/her if the fees were not paid the attorney would sue and win.
ONLY IN CALIFORNIA AND IT ONLY TOOK 24 HOURS:
But perhaps this was the best one yet: Client hires a "washed up old geezer attorney" who advertises that he is a "seasoned" attorney who has argued Supreme Court and Appellate cases; so client gives him a $35,000 retainer deposit. Overnight the client learns that the sleazebag attorney he just handed his $35,000 check was by industry standards, "washed up" -- a "loser." Client learns sure he argued those cases -- but never won. In fact, the seasoned geezer had not won ANY in the last twenty years. Client drives to the other side of town to fire the geezer and get back his $35,000. In walks the sleazebag-geezer with a brand new rug on his head, just got his nails done (yuk) and sporting a brand new set of alligator shoes because he was too fat for the alligator boots. When told he was terminated and that the client was there to pick up his $35,000 check, (1) I've already begun working on your case so you won't get the full $35,000 back, (2) I don't have the check its in the bank, (3) I have to wait for the deposit to come through, another 30 days, and then it will take me another two weeks to cut you a check after I figure out what you owe me. I cannot repeat on paper what happened next--but client recovered every cent and criminal charges were not filed. Many other clients are not that lucky.
Another person tells me that she brought an Unlawful Detainer action against a tenant for harassment. It turns out that Lawyer One took retainer agreement money, and then didn't do anything. She filed a complaint with the State Bar, and at least she was able to get her retainer check back. That does not account for lost time and money expended, and lost potential income from her commercial property during and after the attorney's incompetence. The "tenant" along with the "problem," remains.
Enter Lawyer Two, who finally filed the Unlawful Detainer action. Lawyer Two, brilliant as he claimed to be, decided he knew best how to win this. Therefore, he put his entire client's eggs into one basket. Inside that basket was one police report consisting of a complaint that the tenant hit the landlord. Fast forward to "court time" and unfortunately it isn't Judge Judy where fairness is meted out with a swift bolt of lighting, this is instead, Judge California. The landlord's attorney did not mention anything from the foot-thick file documenting the tenant's ongoing and continued harassment against her. So the California Judge rendered his own special brand of California peace-and-love kinda justice, he rules, "I believe he hit you, but I don't think it was hard enough to justify me evicting him."
Now comes the lawyer's bill. It contains the name of only one of two tenants being evicted; it shows charges AGAIN of $300 for "witness appearance fees" for two police officers who did NOT appear. There were also charges for "services" on TWO days of trial, services for WHAT? Who knows? At the first day of trial, we spent sitting in the court without explanation to the client. By 4 pm the Judge said go home and we'll have the trial tomorrow.
The client keeps asking for a DETAILED invoice and doesn't get one. One of the problems in doing anything by phone with an attorney is that they deny, deny, deny.
The public is encouraged to keep filing complaints at the Bar even though it appears they protect their own.
Consumers are encouraged to file complaints against errant attorneys: http://www.calbar.ca.gov
Consumers are encouraged to contact the author with any management and manager complaints by contacting: http://www.certifymyass.com
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[FN1] Author note: The terms "him" "his" "he" are used in this article as gender neutral. [FN2] Author note: This article does not include all the good things about many wonderful attorneys as that is in another article that is due to be published later on this year; look for the third part of this article to be published soon.

THE TEMPLE OF BLAME AND LEGALIZED FRAUD DRESSED UP AS AN "ELECTION" PART II

Donie Vanitzian
Marina del Rey, CA 90295
March 15, 2007

Mr. Brian Hebert
California Law Revision Commission
3200 Fifth Avenue
Sacramento, California, 95817

THE TEMPLE OF BLAME
AND
LEGALIZED FRAUD
DRESSED UP AS AN “ELECTION”
PART II


Dear Mr. Hebert,

The Temple of Blame and Legalized Fraud Dressed Up As An “Election, Part I” erroneously referenced Senate Bill 1029. It should have referenced Senate Bill 61. I apologize for that error.
Unfortunately, there are many more problems with this code section, but they will have to wait for another time. Until then, please add the following items to my letter dated March 1, 2007 requesting repeal of Civil Code §1363.03.

Disqualification and/or Selective Invalidation
of Owner Ballots
It has been reported to me that so-called “Inspectors of Elections” for whatever reason(s) are “disqualifying” ballots based on THEIR interpretation of the law.
With nothing more than the name “inspector,” such “inspectors” are unilaterally deciding whether owner ballots are “qualified” or “disqualified.”

Number of units owned by a single titleholder: The statute does not address the issue of a single titleholder owning more than one unit. The legislature could have easily eliminated problems related to this issue, but were derelict. Presently, if the association has not adopted any rule that restricts the number of ballots to be mailed in each separate envelope, those ballots that are legitimately voted and mailed in a single envelope should not be invalidated, yet that is precisely what is occurring.
Owners of multiple units have reported to me, that their associations and/or the “inspectors” chosen to oversee such voting procedures are selectively disqualifying titleholder ballots. In one case, the so-called “Inspector of Elections” (whatever THAT’S supposed to mean) disqualified two votes of three votes cast by a titleholder who owns three units in one common interest development. That titleholder was entitled to cast—and have counted—one ballot for each unit owned irrespective of the envelope they were mailed in. Instead, the “Inspector” disqualified and discarded (destroyed) two ballots “because the inner envelope contained three ballots.” In actuality, and only for sake of argument, for the invalidation to be legal, all three votes should have been disqualified.

(a) NO ballots should have been destroyed and,
(b) Nothing in Civil Code §1363.03 prevents, nor ipso facto disqualifies, or gives any inspector of said elections the authority to disqualify, a titleholder holding title to more than one property within the same common interest development, from voting all his/her ballots at one time and placing said ballots in one envelope.

In another case, a titleholder owning more than one unit, clearly wrote his name and address and signed it (as indicated in the association’s instructions) on the outer envelope, and clearly wrote that it contained three ballots. Even though the “Inspector” checked the outer envelope against the association’s homeowner list indicating the titleholder is entitled to cast three ballots, the “Inspector” invalidated two votes of the three.
In a case where a titleholder owning two units -- voted his two ballots -- mailed them in the same envelope provided, the “inspector” invalidated both votes because only one envelope was used.
Some “inspectors” are “discarding” the ballots and others are merely “invalidating” the ballots. Civil Code §1363.03 does not define these terms nor does it discuss this situation. The code fails to address the aforementioned problems. This should have been a no-brainer to the legislature and the legislator who was responsible for sponsoring this fiasco.

Long and Incomprehensible Instructions

I am witnessing longer and longer, and yes, even longer, instruction sheets or multiple instruction sheets, accompanying voting procedures distributed to titleholders. One of the many problems with such “instructions” and the rules adopted by associations pursuant to Civil Code §1357.100 is that they are drafted by boards AND consultants or advisors who think they know what they are doing. In the interim thousands of titleholders are being disenfranchised because an advisor thought it would be a “good idea to include” [insert that good idea] in the instructions.
Apparently, those responsible for circulating ballots and/or voting materials will take it upon themselves to insert their own wording, or a sentence, or a paragraph, or what they may call a “clarifying note” into instructions that were NOT part of the language adopted by the owners and/or the board of directors let alone Civil Code §1363.03.
There are many who now believe that the taint on homeowner association elections and fairness in general, is irreparable. The industry’s influence has so corrupted the process that many of us believe it is beyond salvage. When a board of directors announces “it has passed” -- all hope is deflated by those owner who know it “didn’t pass.”

Good Standing, Bad Standing, No Standing
Just Sit Down and Shut Up!

Irrespective of the titleholders’ being in good standing at their associations or not, “inspectors” are unilaterally making the “call” whether owner ballots are “qualified” or “disqualified.”
It apparently no longer matters that the titleholder has a property right, one that vested on purchase of their property. As associations will do anything to divest owners of their property rights, this bogus nonsense written into many association documents consisting of “you are not in good standing so you cannot vote” overrides all statutes.

Open to Anyone’s nterpretation

Perhaps one of the biggest flaws with Civil Code §1363.03 is that it is open to interpretation.
Ballots created and distributed by management companies and/or other third-party vendors and forwarded to me by boards of directors and owners are evidencing a frightening trend. Management companies and other so-called “professionals” are apparently taking it upon themselves to insert their verbiage (i.e, via poetic license) into ballots.
It is also disturbing to find that there is a basic breakdown in communicating meaningful “instructions” to owners. Simple questions, like this one addressed to me from a reader, “HOW do those of us who did not vote by ballot, cast a vote at the annual election by attendance?” One owner forwarded seventeen letters asking that same question to her board over two months time. At the time of this writing, the question was still unanswered.

Creating unilateral contingencies in the balloting process: Too many ballots are wrongfully inserting, then publishing, contingencies into the voting process where no such “contingency” exists in the law and no such contingency exists in the association’s governing documents, or the “rules” adopted by the board. One such ballot that was irresponsibly created by a management company states “you must first check with the person to make sure they want to run for the board.”[1] Such an admonition of “acceptance” is not a statutory requirement, thus that statement functions as an “admonition” which in turn results in the “addition” of a “contingency” into the voting procedure and invalidates the election, let alone the ballot.[2] Another management company took it upon themselves to write on the face of the ballot:

“Write-in candidates, ie, candidates written on the ballots after they are distributed by the Association and nominations from the floor, are discouraged as they do not afford such candidates the same opportunity as those candidates whose names are pre-printed on the ballot, and it complicates the election process at the time of the meeting.”

Aside from the vendor’s arrogance in believing they can simply write what they want, that hyperbole confuses voters and could arguably subject the association to liability. It invalidates the election because it functions as an “admonition” which in turn results in the “addition” of a “contingency” in the balloting process. [3] Incompetent “opinions” injected into the balloting process by third-party vendors contracted by the association NOT to practice law but to provide a “service” in exchange for remuneration invalidates the election process. This interference is costly to the association and subjects the owners to insufferable preaching by paid employees[4] who have nothing to do with protecting the owners’ assets.

Mailed ballot invalidated and superseded by yet another mailing; and another mailing after that
Another problem occurs when ballots that were already circulated, voted, returned to the inspector, and waiting to be counted -- yet just prior to counting those ballots -- all ballots are invalidated.
The statute does not address this problem. In several instances that I have recently been made aware of, the management company or board of directors refused to return the invalidated ballots and it is unclear if those ballots were discarded, and if they were discarded, how so? There are variations on this theme, too lengthy for discussion in this forum, but in need of clear and unequivocal direction by the legislature. If the advisor, management company, or other third-party vendor contracting with the association is the recipient of the returned ballots, those ballots (as it was relayed to me) those entities are keeping, or holding onto those “invalidated” ballots.

Adding candidates
This is another problem that is growing in intensity. In the event the first mailing of ballots was invalid, and a second ballot mailing is necessary to correct an error, I have received communications from dozens of owners showing that advisors, management companies, or other third-party vendors contracting with the association, have taken it upon themselves to add candidate names to a new or corrected-ballot without giving prior notice to all titleholders that there was an extension of time allotted (ie, “created” due to the initial balloting error) to nominate and/or include one’s name on the ballot. Situations like this disenfranchise all owners and those who would have added their name as a candidate had they known that the time had been extended to place a candidate’s name on the ballot. [5]

Envelopes[6]
Without elaborating further, I have received hundreds of complaints and examples regarding the “double envelope” process, the quality or lack there of, regarding said envelopes. The complaints range from mailing-related problems to ballot invalidations as they relate to the envelopes provided by the association or other third-party vendor entity.
In one ballot enclosure executed by a vendor management company employee purporting to some sort of Vice President, the instructions state, “Any unsigned outer envelope will not be counted as it cannot be validated.”
That fabricated statement is deceitful, it is not the law, and without a published “validation” policy, it unilaterally disenfranchises the titleholder.[7] The statute does not state that, nor does it allude to that type of unilateral disqualification, or invalidation. In my discussions with Senator Battin’s office I was told that is not a true statement, the ballot will NOT be invalidated.

Signatures, privacy, identity theft:
Too many ballots are being invalidated or disqualified based on the owner’s “signature.” There are no guidelines in the statute that detail how “signature invalidation” is to occur, and under what circumstances it should occur, if it should occur at all. Owners report that their ballots are being invalidated for no other reason than “someone” said their signature was “suspect.” Yet, the person or entity invalidating ballots using the excuse of “suspect signatures” had nothing to compare the owners’ signatures to.
For obvious reasons, NO TITLEHOLDER wants their signature to be housed at a management company office -- let alone there are no assurances of privacy from such companies. Stockpiling signatures at a third-party vendor’s office where there is, among other things, no control over employees, access to documents, safeguarding of property, are unacceptable.
Predictably, this will mean that each titleholder must notarize their ballot prior to mailing it in. Without notarized ballots, its anyone’s guess whose signature it is.

Incompetence and interference: Third-party vendors are likely costing associations more than they bargained for. For example, in one ballot enclosure executed by a management company executive it states:
“Return the double sealed ballot to the Inspector of Elections by xx/xx/07.”
That statement is false and cannot be complied with for these reasons:

(1) there is NO double sealed BALLOT. The ballot itself cannot be sealed; and
(2) on its face, the aforementioned statement gives ALL titleholders until MIDNIGHT on xx/xx/07 to return their ballots and/or to vote, thus contradicting the governing documents AND what was written in the other enclosures mailed with the ballot that stated the ballots are counted in the open at the annual meeting, and results are announced at that time.

Misrepresentations: Some third-party vendors, including management companies, advisors, consultants, and the like, have injected there own sayings onto the face of the ballots, and/or in accompanying materials that invalidate the election process. One such saying is as follows:

“A quorum of members must return ballots in order for the election to be valid.” [8]


That statement alone invalidates the entire election because:

(a) for a variety of reasons too length for this discussion, it creates a “contingency” for the owner’s “vote”;
(b) assuming arguendo that the statement is accurate, it fails to state the quorum “number” required for the election to be “valid”;
(c) it places an (additional) “instruction” on the document which should not be there without a vote and direction of the board;
(d) that statement (in this instance) “contradicted” other enclosures published by the management company vendor and/or board of directors that accompanied the ballot itself;
(e) it “assumes/presupposes” that the owner cannot or will not utilize a proxy or send a representative in to vote;
(f) the statement predicates a “valid election” on a quorum of returned ballots. This may not be the case in every association. This also does not account for attendance at the meeting for quorum purposes, it does not account for votes and nominations from the floor and in-person voting at the time of said election and/or annual meeting; (this assumes that the annual meeting is also THE meeting where the election of officers will occur), it misstates the facts;
(g) if the ballot does not state on its face, that “this ballot will be used to establish a quorum,” then that statement cannot be made.[9]

Let’s keep recounting until we get the result we want:
Some owners have reported influence from outside entities encouraging if not demanding that the boards recount ballots. Some have reported recounting ballots over three times. Each time the result narrows and by invalidating certain ballots, the slate, or existing board members can keep their seats. In each instance, the competition was eliminated. Coincidence? You decide.

Again, no matter how its sliced, Civil Code §1363.03, in its present form it is incomprehensible and nearly, if not wholly, impossible to comply with in toto.

Very truly yours,




D. Vanitzian
[1] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[2] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[3] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[4] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[5] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[6] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[7] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[8] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[9] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).

BUYER BEWARE, PART III: THE ILLUSION OF “PROPERTY” OWNERSHIP

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

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."

~*~

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.


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--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.

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.

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--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.

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.”