Critical Mass

By Christopher Durso

Article Courtesy of "Common Ground"

From the May 2006 issue

Part 1: The Other Side

They think the community association model is inherently flawed. They think CAI is the industry and the industry is corrupt. They call themselves homeowner advocates, and they're coming soon to a state legislature, website, or listserve near you. [If they're not already there.]

It's 2 p.m. the Saturday before Valentine's Day, and Shu Bartholomew is on the air. The topic is homeowner associations. On Bartholomew's weekly radio show, On the Commons, the topic is always homeowner associations, and if you're curious about what the host herself thinks of them, look no further than the little cartoon sign on her website: "You are now leaving the American Zone."

When it comes to sheer news value, community associations and the issues that arise within them seldom offer immediacy or sweeping relevance. But on this February afternoon, things are about as timely as they get for On the Commons. Bartholomew's guest is Frank Askin, a law professor at Rutgers University who won a potentially landmark appeal against a New Jersey HOA—a decision announced only five days before.

For 50 minutes, at Bartholomew's gentle prompting, Askin explains the court's major findings, which would impose constitutional standards on association governance, and speculates on their possible implications. He also responds to Bartholomew's steady stream of interjections, asides, and, sometimes, complete non sequiturs, most of them directed at CAI or, more ominously, "the industry." After Askin reviews several tangential issues decided at various stages during the case, for example, there's a pause. Then Bartholomew says: "You know, CAI will be the first one to say, 'Hands off. Associations are the best form of democracy we have today. It's democracy up close and personal.' Yet, all of these issues seem to frustrate any kind of public participation.... Associations have been known to fine people right before an election, especially if they know that they're going to vote for somebody else. So, there's no democracy in an association." Later, when Askin says he wouldn't mind if some lingering questions in the case were hashed out in mediation, Bartholomew asks: "How many of the mediators are members of CAI?" Some minutes after that, the discussion turns to how the ruling might be implemented across the country, and Askin says he's not optimistic that state legislatures could be of much help because CAI exerts more influence there than homeowners do. That really gets Bartholomew excited. "I'll tell you one thing," she says. "A lot of legislators are pulling their hair.... I have talked to legislators from a couple of different states, and the thing is, they're getting inundated with calls from really mad constituents. They're just really fed up and don't know where to turn. The problem is, the legislators don't know what they're doing either. And so they've come up with the ombudsmen. They're coming up with common-interest commissions.... And all of those things are being hijacked by the industry. They're being run by the industry, and the homeowners are getting further and further behind." Askin is silent, so Bartholomew plows ahead: "And even in instances where you have criminal activity, nobody's willing to get involved."

All in all, it's not bad radio. The issues get covered, the host cracks some jokes, and the listeners—well, it's doubtful that any minds have been changed. Audiences for shows like On the Commons tend to be self-selecting, and Bartholomew considers herself a journalist but also a homeowner advocate, one of a number of self-styled watchdogs who think HOAs need monitoring, fixing, serious reining in, or even complete dissolution. And, in many ways, Bartholomew's soft, lilting tones are the voice of the movement itself: earnest, wonky, suspicious, dedicated, outraged, and prone to cracking.

Homeowner associations have always had their critics, but today, those critics have something they didn't used to: cheap, accessible technology. Websites, blogs, listserves, mass e-mail, and Internet radio, among other applications, mean that a lone crusader can go online, meet crusaders in other states, swap HOA horror stories, maybe hang out an electronic shingle, draw in still more crusaders, swap more HOA horror stories, and generate sufficient critical mass to attract attention from the media, politicians, and, of course, even more crusaders—all without ever leaving the house. "One click on my computer, and 5,000 people hear what I have to say," says Jan Bergemann, president of Florida-based Cyber Citizens for Justice (CCFJ). "And they often in turn distribute it to other people. That is something that couldn't have been done 10 years ago. I talk to people in California. We exchange ways of doing things. Ten years ago that wouldn't have been possible. We wouldn't have even known they existed."

But they do exist, across the country, in patches and pockets that mirror the still largely decentralized, mom-and-pop nature of the industry they monitor. There's CCFJ in Florida, Shu Bartholomew's On the Commons in Virginia, the American Homeowners Resource Center (AHRC) in California, Citizens for Constitutional Local Government (CCLG) and the Coalition of HomeOwners for Rights and Education (CHORE) in Arizona, Consumers for Housing Choice (CHC) in Delaware, the Common-Interest Homeowners Coalition (C-IHC) in New Jersey, and the Texas Homeowner's Advocate Group (THAG). These and other groups like them vary in size, organization, tactics, and tone, but most of their founders seem to share at least one trait: They were made, not born. They tangled with their HOAs, or were sued by their condominium associations, or even served on their boards only to become disillusioned by what they saw as rampant incompetence and abuse of power. So they asked around, did some research, and learned more. They read newspaper articles or heard stories about people who lost their homes in HOA foreclosures, or were forced to shell out thousands of dollars in fees and late charges for failing to pay their assessments, or were denied access to basic association records. And they became convinced that this was, if not normal, then not uncommon. More prevalent, certainly, than the industry—than CAI—was willing to admit.

Bartholomew, for example, says in an interview that her homeowner association, in Fairfax County, Virginia, never bothered her personally but harassed some of her neighbors and "started doing things I didn't particularly like." She asked for copies of some meeting minutes, she says, and was told she couldn't see them because she wasn't on the board. So she ran for the board, got elected, and, she says, "It was a real eye-opener.... I've seen it from that side, and it was seeing that that made me realize what a crock this whole thing is." One day seven or eight years ago, she was monitoring a newsgroup about HOAs, struck up a "cyberconversation," and then, she remembers, "I got asked, what are you going to do for the cause? And I said nothing." But she was working on a local cable access TV show at the time, and eventually she looked into doing something for the cause—to help the homeowners who were outmanned and outgunned by the industry. Today, On the Commons is broadcast live as a cable-access radio show every Saturday afternoon and also streamed over the Internet. While speculating that "I probably have more regular listeners than I know about," Bartholomew says she doesn't actually know how many people tune in to her show.

"I try to get information that's not readily available to the homeowners," she says. "So I bring in the experts—I'm not an expert—and they explain things." Bartholomew frequently hosts other advocates, like Bergemann, and well-known industry critics like Evan McKenzie, author of the book Privatopia. But the show has also featured professionals from the industry—even "CAI attorneys" like Robert Diamond, Esq., a former CAI national president. Bartholomew speaks of the importance of representing all points of view, because "if everyone's thinking alike, no one's thinking." But still, on the air or off, there's no doubt where she stands. "I don't buy into the notion that [associations] protect property values," she says. "I believe in your home being your castle."

CHORE's Pat Haruff also served on her board—her three-year term only just ended in January—but she actually founded her group three years before seeking election. Why? "I had a problem with my HOA [in Mesa, Arizona]," she says, blunt and self-deprecating during a 90-minute interview. "The same old stuff—lack of communication, the secretiveness of the board, the meetings they would not announce, the records when you would ask for something very basic and simple that they would not give you." The problems didn't stop once she got elected. In February 2003, the month after she was seated on the board, she says, her fellow board members tried to get rid of her because her service as CHORE's president created a conflict of interest. Eventually there were lawsuits, Haruff says, and she won everything—even attorney's fees—and remained on the board.

Three years later, she estimates that CHORE has at least one member in 1,500 to 2,000 HOAs throughout Arizona. Haruff has e-mail addresses for all of them, allowing her group to maintain an aggressive legislative posture. Haruff is retired and says she spends at least three days a week at the state capitol in Phoenix when the legislature is in session. In the last several years, CHORE has successfully lobbied on behalf of more than a dozen proposals affecting, among other things, how associations run meetings, impose fines, and reveal conflicts of interest, and is pushing hard to curtail their foreclosure powers. Often Haruff—who, while she served on her own board, was a member of CAI—squares off against Scott Carpenter, Esq., co-chair of CAI's Arizona Legislative Action Committee (LAC). Carpenter concedes that CHORE, while tending to inflame the debate by adopting "poster children for whatever it is," has generally fought the good fight. "I think they're asking good, deep, fundamental, philosophical questions," Carpenter says. "When you ask the question 'Should the association have a lien on a property or not?,' they're really unearthing one of the core issues for associations nationwide. 'Should the association have the right to take the home if a person doesn't pay assessments?' That's as deep as it gets." Says Haruff: "The only thing everyone at CHORE wants is responsibility and accountability from the board of directors. We want them to fulfill and honor their fiduciary duty."

That's where Jan Bergemann says he comes down, too. He formed CCFJ in 2000 with a handful of other activists he met more or less by chance "running through the hallways in Tallahassee." Eventually they decided to join forces. Today, Bergemann says CCFJ has 250 paying members and about 5,000 subscribers on its e-mail list. Like CHORE, the group is highly focused on lobbying—and very effective. It was instrumental in pushing for the creation of an HOA task force and a state House of Representatives condo committee, which in 2004 yielded legislation that, according to Bergemann, "created major changes in association law in Florida." And CCFJ members routinely serve on other statewide task forces and councils addressing association issues. "Homeowners are unorganized," Bergemann says. "They didn't buy a home to get into politics. That is where organized political groups like CAI have the advantage. But legislatures are starting to smell the fish."

On the phone Bergemann is jovial and friendly, his English leavened by a strong German accent. The problem, he says, isn't usually the board members, many of whom are simply "good-willing retired folks [who] don't know how to handle a corporation with a $1.4-million budget." Instead, Bergemann reserves his scorn for "the service providers," which is code for management companies and, especially, attorneys. This is a common complaint among homeowner advocates—that the industry is ruled by a professional class with no financial interest in regulating or otherwise changing how associations operate. "I understand that managers want to earn money," Bergemann says. "I understand that attorneys want to make money. But they have to understand that homeowners have certain interests as well, and one of them is not for the attorney to buy a new Mercedes each year."

What really needs to happen, Bergemann says, is for all the players—service provides, homeowners, volunteer leaders, and advocates—to sit down and talk things out. Years ago, he notes, CAI's message board used to be open to anyone who wanted to participate, and advocates posted alongside board members, managers, and attorneys. "Everyone," Bergemann says, "was on reasonable, good terms." But nowadays CAI's message board is for members only, and debate throughout the industry has turned rancorous. "In general, the atmosphere is not very good," he says. "It ends mostly in lawsuits. It ends in big fights in front of the legislatures, including name-calling, which I think shouldn't be."

But some of Bergemann's opponents scoff at his pleas for compromise and civility, or his attempts to frame CCFJ as a "consumer alliance." CCFJ's website and e-mails, they point out, are dominated by inflammatory headlines and name-calling, and tend to paint anyone remotely connected to HOAs with the same brush. One CCFJ column, for example, blasts an e-mail sent out by an industry attorney as "A Letter of Outright Lies and Falsehoods." Paul Wean, Esq., the immediate past chair of CAI's Florida Legislative Alliance, takes it on the chin regularly. He's been accused of malpractice and vilified as a proponent of "dictatorial tools" for boards. "They tend to personalize it," Wean says. "They tend to blast legislators that don't agree with them. They're not sophisticated in the way they lobby. Is there a reasoned, rational dialogue? No." But still, Wean says, "to a large extent they drive the legislative agenda in this state."

During their interviews, Bartholomew, Haruff, and Bergemann are all accessible and forthright, even charming. All three seem able to hold the debate at arm's length, and as a result they can consider questions about what they do and why—even coming from a CAI magazine—and give good-faith answers. Some of their brethren aren't so indulgent.

CCLG's founder and president, George Staropoli, for example, originally agreed to an interview but later changed his mind. In a brief phone call during which he's quiet and almost courtly, he explains that Common Ground is CAI's "house organ," and that he'd be more comfortable with a debate or similar format where he could express himself at length, without the risk of being quoted out of context. He asks that his prolific writings on the CCLG website speak for him, although a week or two later he sends an "open e-mail questionnaire to CAI" containing four questions that sprout from CCLG's mission, which reads in part: "To inform the public (a) of the private government nature of HOAs and their governing bodies, the homeowners association; (b) of the restrictions on homeowners' civil liberties; and (c) of the lack of effective enforcement of state laws and the governing documents under the 'private contract' interpretation of HOAs." It's unclear how many members Staropoli has attracted to CCLG—Carpenter calls him a "lone ranger"—but certainly his approach is more philosophical than other advocates'. Says Carpenter: "George Staropoli believes he's leading a revolution.... To him, this is a struggle against tyranny. And he uses that word all the time."

According to the website, Staropoli—who launched CCLG in 2000—at one time served as treasurer of an HOA in Pennsylvania. Nothing more is written about his personal experience with associations, but today, he clearly thinks they go about things the wrong way. Or, rather, that they're permitted to go about things the wrong way, free from the constitutionally imposed checks and balances that bind municipal governments. "When the board fines you, where do you go for your due process?" he said in a recent interview with the Middletown (Ohio) Journal. "You go right back to the same people who fined you."

Like Staropoli, representatives from C-IHC and THAG both declined to be interviewed for this article after concluding that it would dismiss all homeowner advocates as "anti-HOA." (See "'Anti' Matter," at right.) But, like other people in the movement, their advocacy seems to stem directly from negative personal experience. According to THAG's website, the group was founded 10 years ago by Johnnie and Harvella Jones "after their $90,000 homestead property in Kingwood, Texas, was maliciously foreclosed for $184.92." THAG concentrates on legislative activity. Its current target is the Texas Uniform Planned Community Act (TUPCA), a sweeping proposal to standardize oversight of associations across the state that was drafted by the Texas College of Real Estate Attorneys and is being considered by the Texas legislature. THAG has even started a blog devoted specifically to the measure, which CAI's Texas LAC supports except for several provisions that are the subject of ongoing discussions. In a single-spaced, 14-page letter THAG recently sent to 18 state legislators, Harvella Jones singles out a TUPCA provision that would uphold Texas HOAs' current right to judicial and nonjudicial foreclosure: "We suggest you take this piece of garbage called TUPCA and send it back to the trash where it belongs and let the CAI cottage industry know by passing bills to stop and forever eliminate homeowner association foreclosures of any kind in this state."

Similarly, C-IHC's current president, Margaret Bar-Akiva, is no stranger to association run-ins. In fact, she and her husband were among the plaintiffs in Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Association, the groundbreaking appeal that Frank Askin just won in New Jersey. (See "Twin Rivers Revisited," p. 13.) Bar-Akiva declined to talk to Common Ground, but an editorial she co-wrote for Newark's Star-Ledger newspaper in February suggests what changes she—and her organization—would like to effect: "[Association homeowners] who depart from governing strictures can be punished severely, subjected to onerous fines, costly litigation and even foreclosure. Homeowner associations finance litigious strategies with residents' money, paid into annual dues and fees." The editorial notes that CAI filed an amicus curiae brief on behalf of the Twin Rivers HOA, and dismisses CAI as "the monolithic national lobbying organization that provided attorneys to argue the case against residents in the Twin Rivers case"—which presumably means the attorneys were members of CAI, as in fact they are, and not actually on CAI's payroll, which they aren't.

AHRC, meanwhile, seems less oriented to lobbying and more like a clearinghouse, with original articles and columns as well as links to pending legislation, other advocacy sites, and what seems like every newspaper article ever written that reflects poorly on the industry. An AHRC representative originally agreed to answer questions for this article, then stopped responding to requests for an interview, apparently for the same reason Jones and Bar-Akiva said no. But, in an initial e-mail reply to Common Ground, the representative—never identified by name—wrote that "AHRC is not an advocacy group but a publishing group," which seems disingenuous considering that the group's stated mission is "to help citizens in homeowner associations to take back their homes from the two generations of crooked lawyers, politicians, judges and vendors who have stolen them." Among the documents posted on its sprawling website is a copy of testimony that AHRC Executive Director Elizabeth McMahon gave before the Texas Senate Committee on Intergovernmental Relations in Houston. In the testimony, which is dated Jan. 16, 2002, McMahon says: "The law should clearly recognize that homeowner associations are another layer of government, and make them comply with state law regarding elections, disclosure and non-discrimination." She concludes: "I know that the collapse of Enron has caused much pain and suffering in Houston. Hence, I do not lightly make the following comparison. Unless the issue of homeowner associations is comprehensively tackled, there will be many future Enrons within them also."

But Enron is among the least-sensationalist comparisons AHRC has made. Articles and columns have compared the plight of association homeowners to slaves, Native Americans slaughtered by the U.S. government, and torture victims at Abu Ghraib. They've alleged that an industry-sympathetic California legislator's "indifference and callousness" contributed to the suicide of a homeowner advocate two years ago. They've spoken sympathetically of Richard Glassel, who murdered two people during an HOA board meeting in Arizona: "[D]id he feel that there was no way out of the situation in which he was in—his home had been foreclosed on—and that violence was the only way to gain some measure of retribution?" Never mind that Glassel's disagreements with his association had to do with landscaping and other mundane operations, or that it was the bank that foreclosed on him.

But contributors to AHRC seem to reserve most of their vitriol for CAI, which AHRC calls a "trade lobby group for homeowner association foreclosure lawyers and their litigation support groups." Industry attorneys are routinely dismissed as "equity stripping CAI lawyers," whether they're members of CAI or not. Responding to a request for an interview with Common Ground that AHRC posted online, Jan Jackson—identified as a homeowner activist in Colorado and the editor of AHRC's Colorado Homeowners News service—left this comment: "The only words any HOA/CIC homeowner needs to speak to any CAI member are the following: YOU CAN GO STRAIGHT TO HELL, AND YOU CAN TAKE ALL OF YOUR SOCIETALLY AND FINANCIALLY DESTRUCTIVE POWER-AND-MONEY SEEKING CAI LAWYER BUDDIES WITH YOU!!!!!" Most other comments, in this thread and others, are anonymous, but similarly volatile.

"They're probably the single most anti-HOA trade organization group," says Jill Van Zeebroeck, CMCA, PCAM, who chairs CAI's California Legislative Action Committee (CLAC). "Some of the other [advocacy] organizations that from time to time we may come up against, we can usually work out our differences.... This organization is absolutely awful. They put hyperbolic jargon on there to simply incite and anger homeowners who don't know any better."

It's tempting to see homeowner advocates as belonging to a single body—one mind, one purpose, many arms. They link to each other's websites, after all, and leave comments on each other's blogs, and quote each other constantly, and appear as guests on each other's talk shows. But, actually, the movement is more diverse than that.

Some advocates talk to Common Ground, for example, while others don't. And some participate in panel discussions about foreclosure at CAI national conferences, as CHORE's Haruff did in May 2005, while others don't. And, boy, did Haruff take some heat for that—sitting on a panel that included Scott Carpenter, of all people. AHRC's Arizona Homeowners News service wrote: "[The panel] will present different views in spite of the fact that CHORE claims to be a coalition of homeowners, even though it is a private email group." The item went on to blast Haruff for not opposing an amendment that "removed all the 'guts'" from a foreclosure bill in the Arizona legislature the year before. The only other group that didn't oppose the amendment, according to AHRC, was CAI.

"I get a lot of criticism," Haruff says. "I get criticized all the time for how I handle situations. I'll get criticized for talking to you." She says: "Nothing will get settled if we don't talk. If we don't compromise, we're going to be at this battle forever." When she puts it that way, it doesn't sound like she and her sparring partner are so far apart. For his part, Carpenter would just like to see a break in the flood of legislative proposals coming from CHORE and other advocates. "The challenge here is, the circle never stops," Carpenter says. "Every year, there's some problem. My dream is eventually some legislator, or Pat Haruff and her group, will stop and say, 'Enough is enough.'"

COMING NEXT ISSUE: You've met some of the country's more outspoken homeowner advocates and learned where they came from. In Part II of our special report, find out what they want, why they don't consider themselves anti-HOA—and how industry representatives, including CAI, respond to their criticisms, proposals, and calls for action.


What's in a headline? You have no idea.

In quantum physics, the Heisenberg Uncertainty Principle holds that the act of observing something inherently changes it. I experienced a journalistic version of this phenomenon when I was trying to line up interviews with as many homeowner advocates as I could for this article.

I had already spoken at length to advocates in Virginia and Florida, and was setting my sights on groups in Arizona, California, New Jersey, and Texas when I started hitting brick walls. The problem? Months ago, when we were creating the 2006 editorial calendar for Common Ground, I threw down a placeholder headline for this article: "Fear and Loathing: Inside the anti-HOA movement."

According to the American Homeowners Resource Center (AHRC) website, "New Jersey activists" discovered the proposed headline on a copy of the editorial calendar that was posted on Common Ground's homepage. That was enough to scuttle at least three interviews.

AHRC, which had agreed to answer some questions, now scoffed on its website: "Durso's questions clearly showed he wanted to find fodder for his pre-conceived conclusions that homeowner advocates were 'anti-HOA, anti-goverment [sic], and condoned violence.' In general Durso was trying to do reconnaissance for a hit piece on homeowner advocates on behalf of the equity stripping CAI foreclosure lawyers who employ him. Clearly his piece should be buried in common ground."

Likewise, Harvella Jones, president of the Texas Homeowner's Advocate Group, who'd also said yes to an interview, did an about-face. "It is my opinion that everything I say will be misconstrued and underreported," Jones wrote in an e-mail. "It is also my opinion that anyone, including you, that is employed by the CAI is unable to report an unbias [sic] account of a telephone interview or any kind of interview for that matter."

And Margaret Bar-Akiva, president of New Jersey's Common-Interest Homeowners Coalition, wrote: "Some time in the future, when you learn how to represent your intentions more honestly, I will be happy to answer your questions. And some time in the future, when you understand that advocates and reformers of HOAs are actually pro-HOAs, you will then be qualified to write a well-balanced article on the subject."

I tried to explain that "Fear and Loathing: Inside the anti-HOA movement" was a draft headline that reflected a simple desire to get people's attention. Surely AHRC, which routinely publishes headlines like "Americans Battle the Slavery of Homeowner Associations," would understand. Plus, I said, my article was a work in progress—it was evolving as I interviewed advocates, and, for what it was worth, I would be writing a different headline that better reflected my conversations with them.


But it was too late. Those eight words were enough to confirm the preconception some advocates had of CAI—and of me as a CAI employee—as arrogant and close-minded. What might they have told me? I guess I'll never know. —C.D.

Christopher Durso is the editor of Common Ground.