Michael Reardon's 2007 May 29 Letter to MA Legislator

2007 May 29
See History for brief descriptions of changes and updates.

    The continuation of this post is a letter from Mr. Michael Reardon to Representative Kevin Honan of the Massachusetts Legislature discussing a number of problems concerning property owners associations — particularly the lack of democratic principles. 

    His letter describes how elections are not enough to produce democratic governance.  Many writers have concluded the same.  Conduct a Google search with the phrase with quotation marks in [  ] — ["elections are not enough"].  You will get over 50,000 hits. 

Don Nordeen
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• History: 
  • 2007 May 29 — Initial Post
    
• Links:  Michael Reardon's 2007 May 29 Letter to MA Legislator at <http://swagman.typepad.com/poa_governance/2007/05/michael_reardon.html>
  
• Key Words:  • Legislative Issues & Proposals; • POA Members' Rights; • POA Problems; abuse; common interest development; community association; democratic; directors obligation; excessive; governance; legislative issues & proposals; obligation; oligarchy; POA governance; POA members' rights; POA problems; property owners association; public policy

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Michael Reardon's 2007 May 29 Letter to MA Legislator (continued)

Representative Kevin Honan
Chair, Joint Committee on Housing
Room 38
State House
Boston, MA 02133

May 29, 2007

Dear Representative Honan,

    You may remember that I testified in support of Representative Matthew Patrick’s bill, House number 1273 to limit Common Interest Development’s (Homeowner and Condominium Associations) to Fifty Dollars in Fines levied against community members, and that a 2/3rds vote of community members approve any legislative changes to the community's governing documents.

    I told the story of my 92 year old neighbor, Walter Liston, who was threatened with fines (in spite of prior agreements with the Association), and the resulting forced sale of his home at a steep discount relative to its market value. The Association ignored its own governing documents and the General Laws of the State, yet Mr. Liston had no other option but an arduous and expensive foray into the civil court system. Mr. Liston, like many Massachusetts  Community Association residents, was not financially or physically capable of this poor choice.

    I suspect that you have heard from several groups with a financial interest in this and any other Association matters, who “cry havoc” at any bill that would limit the authority of Association boards. I would like to explain why this misguided, and why Associations and their residents would instead thrive in more democratic communities.

    Association boards have the power to tax, legislate and judge and punish the residents of their communities, yet these private governances are not subject to the most basic constraints that public government must abide. James Madison wrote that the accumulation of all powers in one body of governance, whether self appointed or ELECTIVE, is the very definition of tyranny.

    Ideally, the legislature will recognize and correct the absence of checks and balances in Association governance. Until that time, Associations must be limited in their legislative, judicial and punitive powers.

    A limit on fines would protect the rights of Association residents and provide some predictability in the conflict resolution process, which heavily favors Associations at this time. One only needs to imagine that a resident is “innocent” to understand the injustice of appealing to ones accuser for relief of unlimited and unrelenting fines.

     An “innocent” resident must hire an attorney and spend tens of thousands of dollars and years in court to defend against an Association persecution. The Association trustees risk nothing financially, and spend Association funds (paid for in part by the resident under attack!) to defend their case. In my Association, the Board President was quoted as saying “go ahead and sue, we have insurance.”

    Association persecutions are not required to be conducted publicly, and residents are intentionally kept ignorant not only of the details, but of the fact that a persecution is being conducted at all.

    Another argument against State intervention in Association governance is this:  Members vote in Associations, so therefore they are democratic, and the State should hesitate to interfere with a democratic process.

    This argument is false as is the premise upon which it is based; elections in Associations so fundamentally depart from our understanding of elections in a Constitutional democracy, that they cannot be viewed as the same process at all.

    In every Association that I am aware of, there is a single party system. Far from the existence of a “loyal opposition”, opposition is rarely tolerated in Associations, if at all. 

    In every Association I am aware of, there is no “free press”.

    In my Association, incumbent members “nominate” future candidates. The community newsletter is prohibited to members who wish to announce their candidacy independent of the Board. The newsletter aggrandizes the Boards accomplishments, while denouncing the platforms of any (rare) opponents. Members who wish to be elected independent of the Board and communicate with the community must go to the public tax records to discover community member names and addresses, and mail those members at their own expense. The incumbent Board uses Association funds to publishing the community newsletter and has sole access to members names and addresses.

    Ballots are not secret, and the counting of ballots is done unsupervised by Board members or their spouses. Association managers, who have a financial interest in the outcome, may also count ballots.

     In every Association I am aware of, there is no independent judiciary.

    Judge Egan Goff, in a letter to the California Law Revision Commission wrote the following:

“If the directors write a rule governing the association and decide to accuse any owner, do you truly think they will not interpret a rule, even a vague one, in a way consistent with the owner’s guilt? Or even to permit the owner to argue its vagueness? And if the directors decide the owner is guilty, who is to decide the issue of the penalty? The directors, of course. IS THIS BASIC JUSTICE? Clearly the directors are judges in their own punitive proceedings against any owner. This is exactly like having the State Prosecutor sit as judge at a criminal trial, Soviet style. Yet California courts appear to be heavily prone to enforce such decisions.”

    Representative Honan, it is very clear that serious fundamental flaws exist in the governance of Homeowners and Condominium Associations, and that your most vulnerable constituents (the elderly, financially distressed, racial and religious minorities) are the most at risk.  Representative Patrick's bill elegantly provides a measure of financial safety to Common Interest Development residents, and a measure of the checks and balances that have proven indispensable to our own democracy. Please consider House 1273 so that some margin of safety and democracy is restored to residents of common interest communities.

Sincerely,

Michael Reardon
East Falmouth, MA

cc. Joint Committee on Housing, Representative Matthew Patrick,
      Boston Globe, Boston Herald, Cape Cod Times, Worcester Telegram,
      Boston Business Journal

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