Chapter FiveIIIChapter Seven
“The first thing we do let's kill all the lawyers.”
Shakespeare's Henry VI, Act 4, Scene 2
That Shakespeare really had a way with words; or could it have been that he lived in a CID and therefore knew from whence he had spoketh?
Regardless the source of his inspiration, as you might well guess, I’m with him all the way on this one; I never meet an HOA lawyer I didn’t dislike. I admit that I have only had dealings with three members of this sect, but they all appeared to me to belong to the same “ambulance chaser” class of low level, legal opportunists. Just like the Management Company representatives, honesty and integrity did not appear to be high priorities among their ranks.
a fool by any other name is still me
Yes, once again, my opinion is harsh and I suppose I must now back it up with some facts, which means it’s time to have a little fun at my expense. I am now forced to reveal an absolutely astonishing display of naivete and trust that I can only assume was a direct result of my having watched one too many old Jimmy Stewart movies.
As I mentioned earlier, my wife and I had met with our board to discuss our differences (the paint thing). After only a few minutes, it was clear to both of us that no rational conduct nor reasonable outcome could be expected. For that, we decided to seek legal advice; it was also clear for the first time that our board was in need of some counseling of a different sort.
I ask a lawyer friend (yeah, even I have a few) for a recommendation, and ironically, she recommended our board’s attorney as the one with the highest profile in this field; she also felt compelled to add that she thought he was a horrible person. And that opinion was from a fellow colleague.
Well, horrible or not, I couldn’t use him so I made more inquiries. But a day or so later, I got word that the board had fired this lawyer because they suspected him of double billing. So now, it appeared, the horrible person suspected of fraud was free to represent me - perfect.
call me irresponsible
I called his office that day. He wasn’t in but I spoke to his partner. It turned out that my information was in error (however, months later the board did finally fire him). The partner asked what kind of problems I was having and I told him. He told me he thought I had a very strong case and that, although it would be a conflict of interest for them to represent me, he could recommend a “big gun to lay down the law!” Wow, I thought, we’re going to lay down the law and with a “big gun” no less. Where do I sign? I took the “big gun’s” phone number, otherwise known as the bait, and set up an appointment.
what was I thinking!
Today, of course, I know it sounds ridiculous to accept a recommendation from the oppositions attorney, but at the time my mistaken reasoning was that these attorneys were completely disinterested parties, meaning that they would represent, to the best of their ability, anyone willing to pay their fees. I was actually disappointed that I couldn’t get their old attorney reasoning that the more he knew about our board, the better for me. But that was before I learned how this industry operates. HOA attorneys, as a prominent part of the CID industry, have a vested interest in preserving the status-quo. They will always favor an HOA board over the interests of a homeowner simply because the HOA board controls the largest purse, and since it’s not there own money, they tend to be very generous with it.
law of diminishing concern
I dutifully brought my new lawyer all the documentation I had collected concerning my case, and I had a lot of it. But what he really focussed in on was the two incidents where I caught them altering legal documents (once in the CC&Rs and once in the meeting minutes as you have already seen). It was here that he gave himself away but I was too inexperienced at that time to recognize the significance of his reaction. It wasn’t an “oh this is great,” as in It will advance my case, it was more like “oh my god, this is not good.” I saw, heard, and felt a serious concern but for who? I just didn’t know what it meant at the time.
show me some reason
What I ask him to do for me was get in contact with the board’s lawyer and between the two of them I was sure a reasonable solution could be worked out. It was clear, the board had their own agenda and reason didn’t enter into their thought processes. He agreed that that would be a reasonable approach and assured me he would get in contact with their attorney.
I’ll find my accomplice when I’m good and ready
A month went by and I checked back with him. So far, he had not been able to locate the board’s lawyer, but promised it would be soon. I began to get suspicious - finally.
Another month passed and still he wasn’t able to find the board’s lawyer. Then he gave me an interesting piece of legal advice: he thought I should just wait out the deadline the board had set for me to paint my house, stating that he was sure their threat of a lawsuit was just a bluff. It was a “do nothing” offense; I do nothing, and my attorney continues to do nothing. This is a “big gun?”
Knowing the board as I did (they were once described by another homeowner as “litigious thugs”) I thought it to be a risky strategy. Then he went on regaling me with tales of other HOAs run completely amok. Of course, by now, it was obvious he was stalling me. I knew then that I had no legal counsel, but I did not let on that I had decided against his advice.
welcome to Privatopia
I can’t recall how I discovered Even McKenzie’s book, Privatopia, but it turned out to be very fortunate for me that I did. It opened my eyes to this whole ugly world of CIDs. If you only read one book on the subject, this is it. Between the time I last spoke to my attorney and the board’s deadline, I read this book and several others, and came away with a much better understanding of this insidious industry.
saved by the book
What I learned from those books, and not my HOA lawyer, is much of what I have already passed on to you. A property owner in a CID gives up many of their protections under the Constitution and United States common law. I was carrying on in the way most people do when faced with a situation of this sort: “This is America, and I know my rights!” HOA lawyers just love that sort of thing. For them, it’s a prelude to a payday. You’ve already heard this quote but it is well worth repeating.
“Resident in CIDs commonly fail to understand the difference between a regime based formally on rights, such as American civil governments, and the CID regime, which is based on restrictions. This leads to people becoming angry at board meetings and claiming that their rights have been violated⎯rights that they wrongly believe that they have in the CID.” Evan McKenzie, Privatopia
I researched further and found that it was true, a homeowner has no law to protect them from unscrupulous boards, management companies, and association lawyers. My grandfather protection under US common law was not valid in a private corporate government. You can’t seek arbitration, and you can’t get help from the attorney general of your state. You gave that up when you signed the CC&Rs; didn’t they tell you that?
There is little an attorney can do (even if he or she was willing to) in dealing with a common interest development regime when their client’s civil and constitutional rights have been limited by the CC&Rs.
Of course, an ethical attorney would have made this clear to me upon my initial inquiry and saved us both time and trouble.
I did some more asking around and found that my attorney and the board’s attorney were very well aquatinted with each other and were, in fact, what is referred to as aligned attorneys - they were both working for our board as well as the industry in general.
a foolish fable finished
I had caught on to the deception. I knew I would receive no services for the money I paid so I decided to play dumb (though some of you might have concluded by now that I was not playing at all). I thought I would lay an integrity trap for him and see how this would play out. Was he going to advise the wait and see game until I got sued, or was he going to surprise me at the last minute by setting up a meeting with their attorney?
Eighteen weeks after we first met to discuss my case, and one day before the board’s deadline for me to paint my house, he called to tell me he heard that our board had fired their attorney. He gave me the name of their new attorney, but he didn’t know how to get in touch with him either. He was, however, ready to present my case in court should the board decide to sue.
It was then that I revealed to him that I had already agreed to repaint my house and was just waiting for the board to select the color. He sounded a little disappointed. I’m sure the plan was that, drunk with righteous indignation, I would allow myself to be led into a hopeless and very expensive lawsuit providing handsome profits for both he and his friend. Yeah, Shakespeare was right!
rules of engagement
As my little fable points out, you have to be very careful, as a homeowner, when approaching an attorney with an HOA case. Just as I did, you are likely to find aligned attorneys willing to take your money, but not willing to stand up to the industry that butters their bread. Here are some tips to consider. I know it sounds like legal advice but it’s not. You should always do your own research; this is only one source at your disposal; make every effort to learn all you can. You might try the suggested reading list on this website.
are they “connected?”
Just as no reasonably intelligent person would hire a Mafia attorney to file a case against organized crime figures, no reasonably intelligent homeowner should ever hire a CAI attorney to file a case against a HOA board.
The first question you should ask an attorney you are considering for an HOA case is if he or she is a member of the Community Associations Institute (CAI). If the answer is yes, run - do not walk - run for the door. Get out of that building as fast as you can.
The CAI (which is the subject of the next chapter) is the CID industry’s trade association. They represent the management companies and HOA lawyers. Their job is to see to it that the homeowner remains a soft target, and they spend millions each year lobbying legislatures in pursuit of that goal.
thick as thieves
HOA law is something of a specialized field, and in most areas, you will find only a handful of practitioners. Most of the attorneys that work in this area of law are CAI members and are aligned with each other as well as the homeowner's associations and management companies. They will be of no help to a homeowner.
It is very difficult to find a competent attorney willing to go up against an HOA. The HOA board controls the association’s finances; they have a great deal of other people’s money at their disposal and they can be very generous with it in attempting to exert their influence over a community. A homeowner, on the other hand, has comparatively little to spend and is probably much too careful with that to be of much interest to an attorney. An attorney (especially a CAI member) who represents a homeowner risks being blackballed by the HOAs.
the great suburban turkey shoot
This area of law has developed into a cottage industry of lawyers who feed off liens, fines, and fees. Along with the management companies, HOA attorneys can increase profits by encouraging conflicts within a community. Covenant litigation has become a profitable legal specialization. The attorney who advises the board on whether to sue a homeowner will often be the same attorney who will handle the litigation (sound familiar?). The conflict of interest could not be more pronounced.
Even with comparatively minor disagreements between HOA boards and homeowners, an attorney will charge anywhere from $50.00 to $500.00 for violation notices (threats to sue) sent to homeowners. The profit incentive is clear - more trouble = more profit.
HOA boards can and do bring suits against homeowners without having to prove the suits were justified. They often use the association lawyers as personal attack dogs and file frivolous lawsuits to carry out vendettas against homeowners they have a grudge against. In situations of this sort, it is not uncommon for the attorney to pad his fees while the board looks the other way knowing it will be the homeowner who pays.
that can’t be…can it?
I’m sure by now you must be wondering how it is possible that these management companies and HOA attorneys can so effortlessly turn the American dream of homeownership into a “suburban slaughter house.” Well, it’s simply a matter of belonging to the right club.
Chapter FiveIIIChapter Seven