September 1, 2003
Article Courtesy of LA
TIMES.COM
A trio of bills in Sacramento would strengthen
the rights of people ruled by homeowners association boards in California,
the latest sign of a growing rebellion against restrictive codes affecting
nearly one in four state residents.
These private neighborhood associations
have become the first level of government for an estimated 50 million Americans,
regulating such things as how homes are painted, the condition of lawns
and the placement of flowerpots.
In California and elsewhere, a growing
number of angry homeowners are pushing for legislation to rein in perceived
abuses by their associations.
"It's like being under a Gestapo," said
Maurice Carmeli of Corona, a townhouse owner who was fined $100 last year
for feeding stray cats. "They said they were worried about [attracting]
pests — but you know, I saw all these cats and they looked hungry, so I
fed them It's crazy."
That kind of resentment is sparking action
by lawmakers around the nation, said Evan McKenzie, an University of Illinois
political science professor and author of "Privatopia," a book about the
rise of homeowners associations. "Legislatures are seizing on the issue
because it is a hot one."
In Sacramento, homeowners have made inroads
in recent years with laws that limit association powers to foreclose on
homes and give members better access to board meetings.
This year, two bills have passed key hurdles
in the Legislature and another is awaiting the governor's signature. If
approved, they would strengthen homeowner rights to scrutinize association
finances, appeal board decisions and fly flags and banners that are usually
prohibited in such communities.
Trade groups that represent associations
and private community managers — companies and individuals hired by associations
— say more laws will lead to more conflict and litigation. They point out
that people choose to live in neighborhoods controlled by homeowners associations
and they say the great majority of residents get along. They argue that
a handful of high-profile cases have painted a distorted picture of widespread
discord.
But critics of the current system say it
is ripe for abuse because, unlike government, there is little in the way
of checks and balances, even if association directors are elected by homeowners.
Some boards act like military regimes,
the critics say, issuing judgments based on whim and fining residents for
innocuous violations such as owning oversized pets or flying flags without
authorization. The flag issue, in particular, has sparked criticism in
many private communities after the terrorism of Sept. 11, 2001.
After the terrorist attacks on the East
Coast, some homeowners "found that they could not express their patriotism,
and that's ridiculous," said Elizabeth McMahon, director of the American
Homeowners Resource Center, a clearinghouse for those battling their associations.
"It was a relatively minor issue that helped expose a pervasive problem."
Homeowners associations began to multiply
in the late 1970s as a means to maintain the character of each newly minted
condo project or suburban tract. Many homeowners like them because they
protect property values. Cities like them because they pick up much of
the burden of code enforcement and infrastructure maintenance.
According to the state-run California Research
Bureau, the number of homeowners associations in the United States was
less than 500 in 1964. Industry estimates put the number at 250,000 today.
In California, 34,000 such communities are home to 8 million people, according
to the bureau.
The increasing popularity of such developments
has meant more conflicts, and homeowner rights activists say the issue
is reaching a critical mass that cannot be ignored by legislators.
"So many more people are affected by these
mini-governments, on which there are no restraints," said Marjorie Murray,
legislative committee member of the Congress of California Seniors.
Last year, the group sponsored a successful
bill that requires homeowners associations to give 30 days' notice before
putting a lien on a member's home over unpaid dues and fines, something
they were not required to do before.
Dozens of other bills regulating homeowners
associations have been proposed around the country in recent years. After
the terrorism of Sept. 11, states from California to Florida passed laws
making it illegal for homeowners associations to ban the flying of U.S.
flags.
In May, Arizona passed a law that prohibits
homeowners association boards from meeting out of state, a practice that
critics said was meant to keep association members from voting in community
decisions.
This year, Texas debated a package of bills
aimed at weakening homeowners association powers, including a bill that
would have made it easier to dissolve such groups. Though most of the bills
were defeated, one of them, a law giving homeowners more leeway in choosing
how to maintain their lawns, passed.
On Thursday in California, where homeowners
association-type developments now spring up at an estimated rate of 2,500
a year, the Legislature passed a bill that gives homeowners the right to
more closely inspect how their boards spend association dues, including
the salary of property managers and other hired staff. Under current law,
the boards are required to disclose only their general budget, but not
the details. The bill awaits the governor's signature.
Two other bills addressing homeowners associations
cleared the state Senate Judiciary Committee last month. One would give
homeowners the right to challenge a board's decision and put it to vote
at a meeting of members. The other, sponsored by the American Civil Liberties
Union of California, would make it illegal for homeowners associations
to forbid the display of noncommercial flags, banners and other signs.
The issue gained publicity most recently
when Bill Durston, a doctor and Vietnam War veteran, clashed with his Gold
River neighborhood association in the Sacramento area over a United Nations
flag he was flying in front of his house to protest the war in Iraq.
"These associations can't enforce any covenant
contract that violates public policy," said Francisco Lobaco, legislative
director for the ACLU of California. "When you move into these developments,
you don't waive your constitutional rights to free expression. Period."
The new bill, Lobaco said, expands on a
law, passed last year, that prohibits homeowners associations from banning
the U.S. flag. The author of that bill was not pleased.
"I believe the American flag, the symbol
of our nation, should not open the door to showcase anyone's cause," said
Dick Monteith, the 71-year-old former state senator from Modesto who proposed
his law as an act of patriotism after Sept. 11. "My bill was never intended
to be abused for political advantage and as a result trash up the neighborhoods."
And it is the neighborhood, those who support
the current system say, that needs to be protected.
"People move into a private community because
they want a certain lifestyle," said Karen Conlon, president of the California
Assn. of Community Managers. "They give up certain things to gain others,
but they don't always realize what they are giving up. They don't realize
they must follow the pack."
Conlon and others say the associations
and the rules that govern them — called CC&Rs, for "covenants, conditions
and restrictions" — are there to protect community interests from individual
caprice. All homeowners signed them and should have read them.
Disputes often arise not because the associations
prohibit a certain activity, they say, but because members do not bother
to follow procedures. Many of the clashes over flags, for example, were
not because they were not allowed but because residents ignored rules stipulating
how and when flags can be flown.
And for the most part, cooler heads prevail
and conflicts are resolved without much ado, they say. But rules have their
place.
If U.N. flags are allowed, "what is going
to keep a homeowner from posting 50 pictures of a scantily clad Britney
Spears on his garage door?" said Robert Browning, a trustee with the national
Community Assns. Institute, an industry lobbying group. But many technical
violations, such as a "Welcome Home" sign for a new baby, are routinely
allowed, he said. "Every day, homeowners and boards of directors come to
reasonable decisions."
Browning said the industry is already heavily
regulated and that new laws would lead only to costly lawsuits and add
administrative costs for associations. "If you don't like what your board
is doing," he said, "you can vote them out."
Browning's group also opposes AB 104, the
bill that would make salary information of those employed by the associations
available to the homeowners.
"What good purpose does it serve to know
how much employees make? It is private information," he said. Homeowners
already have access to budgets and audits, and can see if their dues are
being properly spent, he added.
But some argue that the associations function
like governments. As with taxes, they collect dues to maintain common areas.
As with traffic citations, they have the power to fine those who do not
follow the rules. And therefore, they argue, the associations should be
scrutinized much as public agencies are.
"They are functioning in lieu of local
government without the constraints, without the controls we expect of local
government," said Murray, the Congress of California Seniors representative.
"They make the rules, they enforce the rules, and nobody can challenge
them."
Pending legislation
Three bills in Sacramento would give homeowners
broader rights to challenge their associations:
• AB 104, introduced by Assemblyman
Alan Lowenthal (D-Long Beach), would require associations to provide more
detailed information on their finances to members upon request, including
salary of community managers and how much contractors and vendors are being
paid. Currently, associations are required to provide only general budgets
and audit reports. The bill passed a final vote in the assembly Thursday
and is awaiting the governor's signature.
• AB 512, introduced by Assemblywoman
Patricia Bates (R-Laguna Niguel), would create a process for homeowners
to appeal decisions by their boards. Members of an association could vote
as a group to reverse a board's ruling, for example. Currently, members
elect their boards but have little recourse to challenge directors' decisions.
The bill cleared the Senate Judiciary Committee on Aug. 19. The Legislature
must vote on a final version and the governor must sign it.
• AB 1525, introduced by Assemblymen
John Longville (D-Rialto) and Darrell Steinberg (D-Sacramento), would make
it illegal for homeowners associations to ban residents from flying noncommercial
flags, posters and banners. Most associations have rules restricting what
homeowners can display on their property. The bill cleared the Senate Judiciary
Committee on Aug. 19. The Legislature must vote on a final version and
the governor must sign it.
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