1. Creation of the Ombudsperson for Homeowners. The state Office of Ombudsperson for Homeowners shall have powers and duties provided in this model statute.

a. Each association annually shall register with the ombudsperson, providing its name and contact information; the same information for each management company; the location of each recorded governing document; the number of the association’s homeowners; and other information required by the ombudsperson.

b. With the annual registration, each association shall pay to the ombudsperson $_ for each home in the common-interest community. [180]

2. Investigation and Oversight. The ombudsperson shall investigate alleged denials of homeowner rights under this model statute, the Non-Profit Corporation Act, or other statute by associations, their current or former directors, officers, employees, managers, or other agents and, where authorized by law, shall oversee elections and other ballots.

a. The ombudsperson has subpoena power for investigations, and shall provide petitioning homeowners and responding associations a statement of facts and legal conclusions, to be completed within 90 days, unless the ombudsperson expressly finds a need for up to twice that time.

b. The ombudsperson shall expedite investigations concerning supervised elections or other ballots and arbitration of recalls, to be completed within 15 days, unless the ombudsperson expressly finds a need for up to twice that time.

3. Enforcement. If the ombudsperson advises the attorney general to pursue litigation concerning an association, the ombudsperson shall so advise all petitioning homeowners and all directors of the association. However, the attorney general, local governments (if otherwise authorized), and homeowners may seek judicial relief with or without such recommendation.

a. In addition to enforcement of subpoenas for the ombudsperson, the attorney general shall seek judicial enforcement of the ombudsperson’s decisions regarding supervised elections or other ballots, arbitration of recalls, and findings that specified intentional violations of this model statute or other law justify removal of a director, officer, manager, or other agent. With or without a referral from the ombudsperson, upon finding actual or threatened violations of homeowner rights, the attorney general may seek temporary, preliminary, or final injunctions, independent audits, removal of directors, statutory penalties, and other lawful relief. If the homeowner agrees, the attorney general also can present individual claims for relief with government claims.

b. If a local government agency has power to enforce governing documents, it also has power to enforce the model statute and other rights for homeowners.

4. Optional Mediation and Supervised Voting. The ombudsperson may offer to participate in any mediation, or to supervise any election or other ballot, even where not required by law. No such offer, whether or not accepted, disqualifies the ombudsperson from exercising any power or duty under this model statute; provided, by agreement in writing, the ombudsperson and parties can specify confidentiality or other condition on agreed action by the ombudsperson.

5. Licensing Managers. The ombudsperson shall license qualified association managers,

with tests to confirm knowledge of the law and, for managers who seek to handle association funds, to confirm knowledge of accounting. The ombudsperson may set requirements for managers to be bonded.

6. Forms Updated, Mediators Listed and Homeowner Education. The ombudsperson shall keep current the information statement and other disclosure forms that sellers must give to buyers as provided in Section 104, The Right to Be Told of All Rules and Charges, the Notice of Foreclosure Rights, the Notice of Foreclosure Filing, the Notice of Right of Redemption, and other forms that may assist homeowners. The ombudsperson also shall be required to maintain lists of available no- or low-cost mediation programs, publish and promote educational materials to secure homeowner rights, and accredit programs to license association management. All such documents prepared by the ombudsperson shall be translated into any language used at one or more polling places during elections, and also made accessible to persons with disabilities.

7. Rulemaking. The ombudsperson shall adopt rules governing investigations, oversight, licensing of managers, and its other functions as appropriate to implement this model statute.

8. Annual Reports. The ombudsperson annually shall publish information on

a. the number, kind, and size of associations in this state;

b. how state law affects operation and management of associations;

c. known violations of this model statute;

d. homeowners’ use of options for mediation and arbitration, costs incurred, and the decisions and awards made by mediation and arbitration procedures;

e. the number of foreclosure cases filed, the number completed, and the reasons for such cases; and

f. other issues the ombudsperson considers of concern to homeowners.

Between homeowners and associations, disputes happen. The frequency and wide range of focal points for conflict underscore the need for fair, rapid, and cost-effective ways to resolve such disputes. The ultimate goal remains to strengthen rather than divide communities. Homeowners typically have neither support, time, money, skills, or experience to enforce, or even to fully understand, their rights. As stated in a recent California study, “[a] homeowner who believes that a community association is violating the law or has otherwise breached its duties has no effective remedy other than civil litigation.… Many homeowners cannot afford to bring a lawsuit, especially in cases where money damages are not at issue.” [181]

Having an independent ombudsperson offers a neutral, prompt, low-cost forum for homeowners to learn and protect their rights. Directors, being homeowners, can seek advice from the ombudsperson. This provides well-meaning directors with an alternative to consultation with association attorneys. The ombudsperson also enables better managers and disclosures for homeowners.

The model statute provides for the attorney general to enforce the ombudsperson’s determinations of who are the directors, because courts and others need to know who speaks for the association. Otherwise, the attorney general (and local governments, where authorized) have enforcement discretion. [182]

The choice of where, within state agencies, to locate the ombudsperson also will influence the ombudsperson’s effectiveness. On this, the model statute makes no recommendation because the best location will vary from state to state.

County attorneys and district attorneys also might investigate or prosecute violations, and in some cases already have authority to enforce governing documents against homeowners. [183]

The model statute does not promote use of local governments as a primary means for enforcement, but recognizes that if local government power exists to prosecute homeowners, then that same government also should have authority to enforce the law regulating associations.

[180] As discussed below, the charge should not be large, with many factors determining the amount.

[181] California Law Revision Commission, Common Interest Development Ombudsperson at 1–2 (Preprint Recommendation, March 2005) (“Cal. Ombudsperson Proposal”). Thus, homeowners can be “effectively denied the benefit of laws designed for [their] protection, and “[t]he absence of an affordable remedy limits accountability for wrongdoing, creating an atmosphere in which some may choose to cut corners or abuse their power.” Id. at 2. In her Study, supra n.39, at 5, Professor French likewise identified the lack of a “regulatory agency charged with overseeing” associations as a central reason for the critical problem that she states “Securing Compliance with the Law Is Difficult.” See also NJ Assembly Task Force, supra n. 111 (recommending oversight, as noted in Committee for a Better Twin Rivers, supra n.6, 890 A.2d at 956).

[182]  Under current practice, even attorneys general with such powers almost never use them. See Alternative Dispute Resolution in Common Interest Developments, 33 Cal. L. Rev. Comm’n Reports 689, 698-99 (2003) (Cal. Corp. Code 8216 provides limited power, but the attorney general’s role usually ends after sending an inquiry letter); accord “Cal. Ombudsperson Proposal,” supra n.181, at 1 n.5; see also State Assistance to Common Interest Developments (staff draft), Memorandum 2004-39 (Calif. L. Rev. Comm’n 8/9/04), Exh. at 1–2 (as a matter of policy, California’s “Attorney General does not pursue legal action”).

[183]  E.g., Tex. Prop. Code 203.003(a).

Whether or not an agency chooses to proceed based on the ombudsperson’s findings,

homeowners can do so themselves. Hopefully, in most cases, clear findings by the ombudsperson should persuade associations to terminate unlawful practices or, regarding permitted practices, persuade homeowners to terminate challenges, avoiding litigation.

In addition to providing investigative and enforcement power, the ombudsperson licenses managers, can mediate, and maintains a list of mediators and arbitrators as well as gathering and disseminating other information. [184]

Public education would include publication of answers to frequently asked questions, such as

Florida has done, as well as other training materials. [185] The ombudsperson also would have an 800 number to assist homeowners. Rather than employ outside trainers, ombudsperson employees should conduct training sessions for homeowners and directors who seek unbiased information. Outside training programs to license managers would need to be accredited by the ombudsperson.

An oversight agency such as the Ombudsperson for Homeowners may benefit from “authority to adopt regulations to define its own operations.” [186] The model statute does not provide more general rule-making power, because the relative newness of the issues suggests a need for more legislative involvement. The model statute focuses on having the ombudsperson as problem solver. This encompasses promoting homeowner rights with clear and concise forms to be given to potential buyers of homes in associations, and promoting education about associations.

Several state legislatures recently have recognized the advantages of an ombudsperson or other government overseer, and others have the issues under close consideration. [187] Statutes provide for one or more of the following activities: information and advice, state-assisted mediation or arbitration, informal intervention, and law enforcement.

Providing all of these, Nevada first created an Ombudsman for Owners in Common Interest Communities, [188]and later created the Commission for Common Interest Communities. [189]

The Nevada ombudsman can investigate alleged statutory violations, attempt resolution, and, if that fails, prepare a report stating relevant facts. [190] Nevada then uses a complex administrative system to resolve disputes, [191] including subpoena power. [192] The administrative rights supplement other rights that exist at law or in equity. [193] This model statute does not recommend such an active administrator, but Nevada’s approach merits further consideration as experience increases.

Florida so far has rejected most state oversight for single-family homeowner associations. [194]

However, recently proposed legislation would have changed that, and Florida uses an ombudsperson for condominiums, in addition to providing oversight including enforcement of statutes by the Division of Florida Land Sales, Condominiums and Mobile Homes. [195] Florida also mandates nonbinding arbitration for disputes involving condominiums, but not for associations--except making ADR mandatory for election disputes. [196]

Hawaii’s Real Estate Commission lists centers under contract to mediate condominium disputes, with some mediation subsidized by the state, and provides information and advice. [197]  The Commission also can investigate and administratively enforce some statutes, mostly relating to development and sale but also including homeowner rights of access to records. [198]

Montgomery County, Maryland, provides for non-judicial dispute resolution based on a 1991 study finding “inequality of bargaining power and the need to provide for due process in fundamental association activities.” [199] The complex administrative remedy includes optional mediation, is subject to judicial review, and can provide attorney fees to homeowners. [200] Small charges for each home should provide sufficient funds for an ombudsperson, including the charge for filing a petition to investigate. See Section 102 (¶ 4), The Right to Resolve Disputes without Litigation. [201] Advantages of this approach, noted by the California Law Revision Commission, include (1) sharing costs among all homeowners, allowing low-cost investigation to those who need help; (2) avoiding dipping into the state’s general fund; and (3) piggy-backing on existing collection mechanisms, sparing the ombudsperson the costs and hassles of collection. [202] All homeowners should pay this nominal charge as a form of insurance and because they all benefit by promoting this office, even if they do not directly ask the ombudsperson for help.

[184] See, e.g., Nev. Rev. Stat. 38.300-38.360, 116.745 to 750 (similar powers); see also Va. Code Ann. 55-530 (does not intervene in disputes but provides nonbinding interpretation of laws and referrals for ADR, as well as other information and educational opportunities); Common Interest Development Law: CID Information Center, Memorandum 2003-40 (Calif. L. Rev. Comm’n 11/7/03), at 1 (California Department of Consumer Affairs maintains a list of ADR programs).

[185]  See www.state.fl.us/dbpr/lsc/condominiums/information/faq.shtml, last visited 11/6/05;

www.state.fl.us/dbpr/lsc/condominiums/index.shtml, last visited 11/6/05.

[186] State Oversight of Common Interest Developments (Discussion of Issues), Memorandum 2004-20 (Calif. L. Revision Comm’n 3/30/04), at 20; see also Nev. Rev. Stat. 116.625.

[187] See generally “Cal. Ombudsperson Proposal,” supra n. 182 (discussing several state programs and seeking comments).

[188]  Nev. Rev. Stat. 116.625.

[189]  Nev. Rev. Stat. 116.600.

[190]  Nev. Rev. Stat. 116.745, 750 & 765.

[191] Nev. Rev. Stat. 116.745 to 795.

[192] Nev. Rev. Stat. 116.660.

[193] Nev. Rev. Stat. 116.755(1).

[194] Fla. Stat. Ann. 720.302(2).

[195] For condominiums, see Fla. Stat. Ann. 718.5011 & 720.5012 (reports and recommendations, liaison to associations, educational material, monitoring of disputes concerning meetings and elections, neutral resource for dispute resolution). For associations, see Fla. SB 2498 (Garcia, 2004) (proposing an ombudsperson to investigate homeowner complaints, did not pass).

[196] See Fla. Stat. Ann. 718.1255 (condominiums); Fla. Stat.Ann. 720.311(1) (association elections).

[197]  “Cal. Ombudsperson Proposal,” supra n.181, at 9.

[198] Id.; see Haw. Rev. Stat. 514A-46 to 49 & -83.5.

[199] “Cal. Ombudsperson Proposal,” supra n.181, at 8-9, citing Montgomery County Code, Chapter 10B.

[200] Id.

[201] “Cal. Ombudsperson Proposal,” supra n. 181, at 5–10 (Nevada program funded by charge of $3 per home, expected to increase to $4, Montgomery County, Maryland, program funded by $2.25 per home plus a $50 fee to file a petition); Hawaii charges $4 per home; Virginia charges each association $25 for less comprehensive services); Fla. Stat. Ann. 718.501(2)(a) ($4 per home); see also id. at 4 ($5 per home charge proposed in pilot project, plus up to $25 filing fee for formal mediation).

[202] “State Oversight of Common Interest Developments”, supra n.186, at 21; see also id. at 22 (recognizing benefits “to have a homeowner pay for some or all of the services provided by the agency”).