Governance of POAs

Posts on HOA Talk

2009 May 05
See History for brief descriptions of changes and updates. 

    This writer has made a number of posts on HOA Discussions on HOA Talk which provide additional information on Governance or Property Owners Associations.  Click on HOA Discussions to access the discussions as a non-registered reader.  More privileges are provided if you sign up as a registered user. 

    The continuation of this post provides search information for the HOA Discussion Topics on which I have posted. 

Don Nordeen
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• History:  Changes are usually identified in the text with the date which facilitates searching by date.  Edits are usually noted by add and delete changes. 
  • 2009 May 05 — Initial Post
• Links:  Posts on HOA Talk at [http://swagman.typepad.com/poa_governance/2009/05/posts-on-hoa-talk.html]
• Key Words:  • Accounting Principles;  • Attorney Issues;  • Case Law, Michigan & Other;  • Common Interest Development;  • Community Associations Institute;  • Fiduciary Duty;  • Governing Documents;  • Legislation, CID & POA;  • Legislation, CID & POA Model & Content;  • Legislative Issues & Proposals;  • Nonprofit Corporation Acts;  • POA Board of Directors Issues;  • POA Governance;  • POA Members' Rights;  • POA Problems;  • POA Resources;  • POAs, General;  • Private Government;  • Reference Materials & Papers;  abuse; access; access to records; accountable; accounting; accounting principles; accounting standard; ADR; advocacy; AICPA; AICPA Audit & Accounting Guide; AICPA Audit & Accounting Guide for Common Interest Reality Associations; alternate dispute resolution; alternative dispute resolution; amendment; annual meeting; architectural committee; architectural control committee; architectural review committee; attorney; attorney client privilege; attorney general; attorney obligation; audit; bill of rights; board of directors; breach of fiduciary duty; business judgment rule; bylaws; CAI; case law; CC&R; CC&Rs; CID; CID/POA; CIDs/POAs; CIRA; client; client attorney privilege; client attorney privilege; client lawyer privilege; closed meeting; closed session; collection; common interest community; common interest development; common interest homeowners coalition; Common Interest Realty Association; community association; condo; condo ombudsman; condominium; Condominium Act; condominium association; condominium ombudsman; conflict; conflict resolution; consolidated financial statement; constitution; corrective action; Covenant; Covenants Conditions and Restrictions; CPA; declarant; democracy; democratic; depreciation; developer; developer control; development; director; directors’ obligation; disclosure; dispute; dispute resolution; due process; dues; duties; duty; duty of care; duty of loyalty; duty of obedience; duty to act; easement; election; enforcement; enforcing; engagement; engagement letter; excessive; executive; FASB; fiduciaries; fiduciary; fiduciary duties; fiduciary duty; financial statement; fine; foreclosure; freedom of information; GAAP; generic CC&Rs; glossary; governance; Governance of Not-for-Profit Organizations; governing; governing documents; grievance; harass; harassment; HOA; HOA abuse; HOA ombudsman; home owners associations; Homeowner Bill of Rights; homeowners associations; improvement; land development; law; laws; lawsuit; lawyer; lawyer client privilege; legislation; Legislation, CID & POA; Legislation, CID & POA Model & Content; legislative; legislative issues & proposals; legislature; limitations; lodging; meeting; members' meeting; members' rights; model act; model bylaws; model CC&Rs; model covenants conditions and restrictions; negligence; nonprofit; nonprofit corporation; non-profit corporation; Nonprofit Corporation Act; Non-profit Corporation Act; nonprofit GAAP; notice; obligation; oligarchy; ombudsman; open meetings; organization as client; owners' rights; planned communities; planned communityplanned unit development; POA; POA Act; POA Board of Directors issues; POA governance; POA members' rights; POA problems; POAs, general; preservation; preservation fund; Private Government; private government; problem solving; problems; property owners association; property rights; proxies; proxy; proxy vote; proxy voting; public policy; PUD; quorum; reference materials & papers; regulation; rental; reserve; reserve fund; restrictive covenantcommunity association; home owners association; homeowners association; property owners association; resources; restriction; restrictive covenant; roles and responsibilities; rule; rules and regulations; special meeting; statement of rights; subdivision; transparency; trustee; unreasonable; vacation rental; vote; voting

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Restrictive Covenants Must Be Enduring

2009 January 27
See History for brief descriptions of changes and updates. 

    Restrictive Covenants must be enduring, but not completely rigid.  This post currently consists of notes on the subject plus references to court opinions supporting the statements. 

    Your comments are invited. 

Don Nordeen
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• History: 
  • 
    
  • 2009 Jan 27 — Initial Post
• Links:  Restrictive Covenants Must Be Enduring at [http://swagman.typepad.com/poa_governance/2009/01/restrictive_cov.html]
  
• Key Words:  KeyWords

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Comments on Illinois Condo and HOA Council

2008 December 27
See History for brief descriptions of changes and updates. 

    Illinois has organized a Condominium Advisory Council to advise the legislature "as to necessary changes and new laws needed to improve the quality of life of residents of condominium and homeowners associations."

     The continuation of this post is an email to one of the members of the Council providing comments for consideration by the Council.  The work of the Council is really generic since the laws needed apply to all states.  

Don Nordeen
==========
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• History:  Changes are usually identified in the text with the date which facilitates searching by date.
  • 2008 Dec 27 — Initial Post
• Links:  Comments for Illinois Condo and HOA Council at [http://swagman.typepad.com/poa_governance/2008/12/illinois-condo-and-hoa-council.html]
• Key Words:  Model Legislation, dispute resolution, democratic principles, abuse by boards

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Statement of Rights

2006 October 15
Last update:  2009 Jan 22.  See History for brief descriptions of changes and updates. 

    The most important concept in legislation concerning Common Interest Developments (CIDs) and Property Owners Associations (POAs) is the definition of the rights of owners of property in a CID who are also members of the governing POA.  It is the owners who provide all of the money through their purchase of property and ongoing payment of annual and special assessments for the CIDs and the function of the POAs. 

    The term, Statement of Rights, is used rather than Bill of Rights [footnote 1] to give deference to the federal Bill of Rights.  The definition of rights in the state constitutions is typically called a Declaration of Rights.  Much of the literature on this subject refers to Homeowners Bill of Rights. 

    The continuation of this post is a Statement of Rights for owners/members in a CID/POA.  Combined with the notes and comments, this Statement of Rights basically defines the content for CID/POA law for mature CIDs/POAs.  Your suggestions, recommendations and concerns are requested and are welcome.  Just add a comment.  Thanks. 

Don Nordeen
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Footnote 1 — Bill of rights is over-used, apparently to claim increased importance.  Consider a few examples of claimed bills of rights:  Library Bill of Rights, DigitalConsumer.org Bill of Rights, Academic Bill of Rights, Bill of Rights for Scientists and Engineers, Donor Bill of Rights, Patients' Bill of Rights, another Academic Bill of Rights,  Consumer Bill of Rights and Responsibilities in the Health Care Industry, another Consumer's Bill of Rights, Mortgage Consumer Bill of Rights, Cable Consumer Bill of Rights, ... .  There are literally thousands and thousands.  <Use your browser's back button/arrow to return to previous location>

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• History:  Changes are usually identified in the text with the date which facilitates searching by date. Edits are usually noted by add and delete changes. 
  
  • 2009 Jan 23 — Added more information on and references to democratic principles
  • 2009 Jan 17 — Additional information about an office of ombudsman and/or equivalent and use of specific courts for resolution of various issues
  • 2009 Jan 16 — Further editing on prohibiting fines by the POA and use of courts. 
  • 2009 Jan 15 — General editing
  • 2009 Jan 14 — Edited language concerning the meaning of "amend" and included reference to NC Supreme Court opinion in Armstrong v. Ledges which limits the scope of amendments to the CC&Rs in Rights #5, #7 and #9. 
  • 2009 Jan 13 — added new Right #3 on limitations of CC&Rs and associated notes and justification
  • 2009 Jan 12 — added text to Right #1 to allow exceptions to preservations of rights under the federal and state constitutions and to extend rights to federal and state laws
  • 2008 Sep 28 — added note that TUPCA is no longer active
  • 2007 Mar 09 — The explanation for Right #1 edited to include more discussion on the balance that must be struck between strict application of individual rights and common interests.
  • 2006 Oct 21 — Right #10 edited by add and delete language to show right with and without fines that may or may not be constitutional.
  • 2006 Oct 15 — Initial Post
• Links:  Statement of Rights at [http://swagman.typepad.com/poa_governance/2006/10/statement_of_ri.html]
• Key Words:  • Legislation, CID & POA Model & Content; • Legislative Issues & Proposals; • POA Governance; • POA Board of Directors Issues; • POA Members' Rights; • Private Government; access to records; ADR; alternate dispute resolution; alternative dispute resolution; annual meeting; arbitrary; arbitrary and capricious; Armand Arabian; attorney; attorney client privilege; attorney general; attorney obligation; audit; bill of rights; board of directors; board of trustees; board of stewards; CC&R; CC&Rs; closed meeting; closed session; common interest community; common interest development; community association; Covenants Conditions and Restrictions; democracy; democratic; dispute; dispute resolution; executive session; fair election; freedom of information; GAAP; governance; governing documents; Homeowner Bill of Rights; homeowners associations; land development; Legislation, CID & POA Model & Content; legislative issues & proposals; meeting; members' meeting; members' rights; model act; nonprofit corporation; non-profit corporation; obligation; ombudsman; open meetings; planned communities; planned unit development; POA governance; POA members' rights; POA problems; POAs, general; preservation; preservation fund; private government; property owners association; property rights; proxies; proxy; proxy vote; proxy voting; public policy; reference materials & papers; reserve; reserve fund; special meeting; statement of rights; transparency; trustee; vote; voting

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Outline of Dispute Resolution Recommendations

2006 August 13
Last edit:  2008 Dec 27.  See History for brief descriptions of changes and updates. 

    This post provides an outline of dispute resolution recommendations for common interest developments (CIDs) and property owners associations (POAs).  The recommendations provide practical, effective, certain, timely and low-cost means of enforcement and dispute resolution for individual POA members. 

    This is work in progress.  It is being posted at this time for comment and suggestions.  Most of the background is well developed and shows the need for reform.  The concepts of Enforcement Considerations and Dispute Resolution Considerations are closely linked.  Various alternatives for reform for listed with a few notes regarding each.  Previously, the outline in this post was included in the post on Dispute Resolution Considerations. 

Don Nordeen
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• History: 
  • 2006 Aug 13 —Initial Post
    
  • 2006 Aug 17 —added alternative of ordinance to use the municipal court for dispute resolution concerning alleged violations of CC&Rs
  • 2006 Aug 26 —added information concerning pattern of litigation involving POAs
  • 2008 Sep 29 — internet links checked and updated
  • 2008 Dec 27 — addition recommendation for ombudsman office in Office of Attorney General and recommendation on allocation of total legal costs
    
• Links:  Outline of Dispute Resolution Recommendations at <http://swagman.typepad.com/poa_governance/2006/08/outline_of_disp.html>
  
• Key Words:  • Attorney Issues; • Common Interest Development; • Fiduciary Duty; • Governing Documents; • Legislation, CID & POA Model & Content; • Legislative Issues & Proposals; • Michigan; • POA Board of Directors Issues; • POA Governance; • POA Members' Rights; • Private Government; abuse; ADR; alternate dispute resolution; alternative dispute resolution; attorney; common interest community; common interest development; community association; complaint; democracy; democratic; dispute; dispute resolution; enforcement; governance; home owners association; homeowners association; Legislation, CID & POA Model & Content; legislative issues & proposals; ombudsman; planned communities; planned development; planned unit development; private government; problem solving; property owners association; public policy; statement of rights

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Email to UCIOA Chair

2006 August 09

    Maryland has recently enacted legislation setting up a Task Force on Common Ownership Communities to recommend legislation concerning common interest developments (CIDs) and property owners associations (POAs).  Maryland uses somewhat different terms.  The purpose of the enabling legislation states in part:

"FOR the purpose of creating a Task Force on Common Ownership Communities; ... requiring the Task Force to submit a certain report to the Governor and the General Assembly on or before a certain date; ... and generally relating to the Task Force on Common Ownership Communities."

In addition to scheduled hearings, a discussion forum — which includes the enabling legislation — has been established to allow broad participation. 

    The continuation of this post is an email to the "UCIOA Chair" — an individual included in the forum member list — concerning creating similar and additional means for individual owners and others to contribute to the activities to draft amendments to the Uniform Common Interest Ownership Act (UCIOA) being done under the auspices of National Conference of Commissioners on Uniform State Laws (NCCUSL). 

    I urge you to write to the UCIOA Chair at <nccusl@nccusl.org> (Please include the UCIOA in the Subject line of your email.) endorsing such opportunities for individual members to contribute.

Don Nordeen
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Letter to UCIOA Chairman — 2006 Jun 30

2006 June 30
See History for brief descriptions of changes and updates. 

    The continuation of this post is a letter to the Chairman of the Drafting Committee for the Uniform Common Interest Ownership Act (UCIOA) developed by the National Conference of Commissioners on Uniform State Laws (NCCUSL), often referred to as the Uniform Law Commissioners. 

    The drafting of amendments appears to have started in early 2005.  Some of the resource information for possible amendments is posted on the NCCUSL/UCIOA website, but most is only listed by title, and does not even include the name of the person and organization submitting the information.  Four drafts of successive proposed amendments are available at the website.   

    To date, almost all of the discussion and effort appears to be focused on the property law issues with very little on governance, constitutional rights, other rights, democratic principles.  My letter to the chairman was written with that perspective. 

    This letter is perhaps a milestone in my research on legislative issues concerning Common Interest Developments (CIDs) and Property Owners Associations (POAs).  An Outline of Legislation for Democratic Governance of CIDs/POAs has just been posted.  I now consider this work sufficiently developed for publication as work in progress, and solicit you suggestions for improvement.  Please add your comments. 

    More letters to the UCIOA Drafting Committee are needed to clearly express the view that it is the purchasers/owners/members who provide all the money to fund the CID Industry (developers, attorneys, builders, other real estate interests, insurance, mortgage, accountants, reserve specialists, association managers, maintenance companies, repair companies, etc.), and that the members' interests must be represented in the drafting of amendments to UCIOA. 

Don Nordeen
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• History: 
  • 2006 Jun 30 — Initial Post
• Links:  Letter to UCIOA Chairman — 2006 Jun 30 at <http://swagman.typepad.com/poa_governance/2006/06/letter_to_ucioa.html>
  
• Key Words:  KeyWords

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Outline of Legislation for Democratic Governance of CIDs/POAs

2006 June 29
Last update:  2008 Dec 27.  See History for brief descriptions of changes and updates. 

Work in Progress — Posted at this time for use and comment.

• 2006 Jul 21 — Description of legislation for governance at maturity is nearly complete.  Remaining work should only concern refinements. 

    Every common interest development and property owners association may have different governing documents.  However, a pattern of content has evolved for many reasons.  A general analysis of the many factors and aspects for current practice is presented in outline form in Outline & Analysis, CID & POA Issues.  The outline provides links to other posts at this weblog and on the internet to provide more depth supporting the analyses.  The analyses of the various aspects of the governance of most common interest developments (CIDs) and property owners associations (POAs) provide: what works well; what does not work well; what problems exist; and what problems can potentially exist — in short, what is working well and should be preserved, and what is not working well and should be discarded or improved. 

    While reactive improvements can be made by detail amendments to the appropriate legislation or governing document, the resulting patchwork may create additional problems.  A general proactive approach requires a "clean sheet of paper" and "out-of-the-box" thinking — a synthesis to create something new that moves the governance definition to a new, higher level. 

    The continuation of this post is an outline of a Democratic Model for Governance of CIDs and POAs as a broad-based, proactive approach. 

Don Nordeen
===========
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• History: 
  • 2006 Jun 29 — Initial Post
    
  • 2006 Jul 08 — added brief description and outline of the phases in  a CID from inception to maturity
  • 2006 Jul 21 — added outline elements:  overview of legislation, difficulty of including a social contract in the CC&Rs, additional  description of enforcement and dispute resolution
  • 2006 Jul 30 — added and integrated section on superordinate (transcendent  principles for private government, also expanded material on liens, foreclosures, fines and other charges
  • 2006 Nov 27 — added reference and link to Statement of Rights 
  • 2008 Dec 23 — added discussion on interfaces with constitutions and laws
  • 2008 Dec 27 — revised minimum requirements for amendment of CC&Rs
    
• Links:  Outline of Legislation for Democratic Governance of CIDs/POAs at <http://swagman.typepad.com/poa_governance/2006/06/outline_of_legi_1.html>
  
• Key Words:  KeyWords

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Democratic Principles for CIDs and POAs

2006 June 12
Last update:  2008 Jun 30.  See History for brief descriptions of changes and updates.  

    I am finding that more and more references to democratic principles are required to address the fundamental flaws in the concept of common interest developments (CIDs) and property owners associations (POAs).  Rather than just including the democratic principles in other posts, the continuation of this post lists some of those principles in bullet form.  Many of us take many of these principles for granted.  Electing directors is only one part of a democracy.  There are many countries that have elections which we don't consider to be democracies.  Please add your additions with comments. 

Don Nordeen
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• History: 
  • 2006 Jun 12 — Initial Post
  • 2006 Jul 04 — added language from Arizona constitution re the fundamental democratic principle
  • 2008 Jun 30 — added link to Statement of Rights post
• Links:  Democratic Principles for CIDs and POAs at <http://swagman.typepad.com/poa_governance/2006/06/democratic_prin.html>
  
• Key Words:  KeyWords

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New Money for Aging Amenities

2006 May 23

    Facilities age and become run down.  Those same facilities helped the developer to sell the property units in the common interest development (CID).  Should the owners have an ongoing obligation to set aside the money for those inevitable repairs, replacements and renovations?  After all, the current property owners received the benefit this year from the wear and tear this year?  Shouldn't the property owners pay this year for that wear and tear?  Keeping the facilities in top shape enhances the property values high. 

    Read how two communities in Virginia are addressing the problem of run down facilities:  charge the new buyers.  Pass the bill to the grand kids!  The aging of the older CIDs brings this important financing issue into the public policy arena. 

Don Nordeen
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Developer's Model for Governance of CIDs/POAs

2006 April 02
Last update:  2006 Aug 23.  See History for brief descriptions of changes and updates. 

    Many commentators have observed that governance of common interest developments (CIDs) and property owners associations (POAs) has a similarity from development to development and state to state.  Logically, there are valid reasons for these similarities.  Developers tend to copy what has worked well for others.  Developers don't want to invest the time and effort into development of unique governance for a new development.  The standardization has also occurred as a result of recommended practices from trade associations and agencies of government as described by Dr. Evan McKenzie in Privatopia. 

    It may be important to understand the history and reasons for the development and use of the Developer's Model for Governance to effectively address the issues and problems that are integrally related to the Model.  A Democratic Model for Governance addresses the issues and problems and is the focus of the information in this weblog. 

    This post is work in progress, but is needed at this time to provide necessary references in other posts. Please post your comments at the end of this post.  Thanks. 

Don Nordeen
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• History: 
  • 2006 Apr 02 — Initial Post
    
  • 2006 May 6 — added links to CAI's documents that support the developer's model
  • 2006 May 20 — added more information on legislators being advocates for individual POA members
  • 2006 Aug 23 — added reference to the Homes Association Handbook and brief discussion of its effect on CID/POA governance
  • 2006 Dec 11 — added and revised discussion about the influence of the Homes Handbook on the developer's model
    
• Links:  Developer's Model for Governance of CIDs/POAs at <http://swagman.typepad.com/poa_governance/2006/04/developers_mode.html>
  
• Key Words:  KeyWords

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Public Policy Issues for CIDs & POAs

2006 April 01
Last edit:  2006 Jul 09.  See History for brief descriptions of changes and updates. 

    Work in progress.  This post is a start for assembling articles and thoughts on public policy issues for common interest developments (CIDs) and property owners associations (POAs).  Given that CIDs/POAs are either outside of or in addition to municipal government largely run by volunteers, CIDs/POAs have limited capability for performing private government functions. 

    Your thoughts and ideas are most welcome.  Please add a comment or send an email.  Thanks. 

Don Nordeen
===========
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• History:  Changes are usually identified in the text with the date which facilitates searching by date.
  • 2006 Apr 01 — Initial Post
  • 2006 Apr 24 — Results of Reston, VA, vote added
  • 2006 May 07 — added more discussion on public policy considerations; list of public policy questions greatly expanded; search for 2006 May 7 date to locate added text
  • 2006 May 22 — added discussion re retaining constitutional rights in CIDs/POAs and using governance based on democratic principles
  • 2006 Jul 09 — added question re some CIDs/POAs required to become unincorporated towns or villages
• Links:  Public Policy Issues for CIDs & POAs at [http://swagman.typepad.com/poa_governance/2006/04/public_policy_i.html]
• Key Words:  KeyWords

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Interview on "On the Commons" 2006 Jan 7

2006 March 25

    The organization, On the Commons, broadcasts an hour-long program over cable and the internet at 2:00 p.m. on Saturday afternoons covering a variety of issues concerning common interest developments (CIDs) and property owners associations (POAs).  Their webiste On the Commons is also listed near the end of the lower left column.  For information on the broadcast for the current week, scroll down to bottom part of the page, read the description of the interveiw, and click on "Listen" to listen. 

    I was interviewed on 2006 Jan 7 concerning the broad issues for CIDs and POAs.  You can listen to that interview at Shows by clicking on Jan 7 under the year 2006.  Read the description if you like.  Click on "MP3 audio" to listen to the interview.

    The continuation of this post contains feedback from listeners. 

    Audios for other interviews are also provided at the "Shows" webpage.  The "On the Commons" internet site provides other information on CIDs and POAs. 

Don Nordeen
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Dispute Resolution for CIDs/POAs in Maryland

2006 March 15
Last edit:  2008 Jun 03.  See History for brief descriptions of changes and updates. 

    Complaint and dispute resolution in common interest development (CIDs) and property owners associations (POAs) are an important part of governance.  In the middle 1980s, Montgomery County, Maryland, enacted legislation that established a Commission of Common Interest Communities to provide alternate dispute resolution that has the force of law. 

    The continuation of this post provides some information on this legislation and subsequent activity.  Analysis and other discussion may be added if time permits. 

Don Nordeen
===========
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• History: 
  • 2006 Mar 15 — Initial Post
  • 2006 Mar 18 — added statistics concerning results
    
  • 2006 Mar 19 — added information on CCOC and the mediation process
    
  • 2006 Jun 16 — added short discussion and link to Maryland Task Force  concerned with CID and POA issues
  • 2008 Jun 03 — added link to Washington Post article on a major dispute resolution case
• Links:  Dispute Resolution for CIDs/POAs in Maryland at <http://swagman.typepad.com/poa_governance/2006/03/dispute_resolut.html>
  
• Key Words:  KeyWords

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Nevada CIC Law and Ombudsman

2006 March 09
Last Update:  2009 May 02.  See History for brief descriptions of changes and updates. 

    Nevada is one of the states with many Common Interest Development (CIDs) governed by Property Owners Associations (POAs).  And the number is growing.  There has been substantial legislative activity since 1991, but the POA problems continue to grow. 

    The continuation of this post briefly describes the legislative history (from internet sources), and references a Nevada television report on continuing problems within POAs and the Nevada Law, and my comments on the Office of Ombudsman established in Nevada law. 

Don Nordeen
===========
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• History: 
  • 2009 May 02 — Added another example of ineffectiveness of Nevada's Ombudsman concept. 
    
  • 2006 Jun 21 — added reference to definition of ombudsman
    
  • 2006 Jun 12 — added references to TV report and newspaper article on backlog of complaints from homeonwers
  • 2006 Mar 31 — added comments concerning the March Meeting of the Nevada Commission for Common Interest Communities
  • 2006 Mar 15 — added information on complaint and dispute resolution and CID/POA law
    
  • 2006 Mar 12 — added information on the Nevada CIC Act and the Office of Ombudsman and amended legislation creating the Commission for Common Interest Communities
  • 2006 Mar 09 — Initial Post
    
• Links:  Nevada CIC Law and Ombudsman at <http://swagman.typepad.com/poa_governance/2006/03/nevada_cic_law_.html>
  
• Key Words:  • Common Interest Development;  • Legislation, CID & POA;  • POA Governance;  • POA Members' Rights;  • POA Problems;  • Private Government;  alternate dispute resolution;  alternative dispute resolution;  common interest community;  common interest development;  governance;  Nevada;  ombudsman;  POA governance;  POA members' rights;  POA problems

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Dispute Resolution Considerations

2006 February 16
Last update:  2006 Aug 26.  See History for brief descriptions of changes and updates. 

    This post is a discussion of dispute resolution considerations in common interest developments (CIDs) and property owners associations (POAs).  See Enforcement Considerations for a discussion of the linked concepts of enforcement and dispute resolution. 

    This is work in progress.  Most of the background is well developed and shows the need for reform.  Various alternatives for reform for listed with a few notes regarding each.  It is being posted at this time for comment and suggestions.  The various notes will be converted into appropriate text.  (revised 2006 Aug 13) Previously, this post included an Outline of Dispute Resolution Recommendations which is now a separate post. Included are recommendations to provide practical, effective, certain, timely and low-cost means of enforcement and dispute resolution for individual POA members.   

Don Nordeen
===========
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• History:  Changes are usually identified in the text with the date which facilitates searching by date.
  • 2006 Feb 16 — Initial draft
  • 2006 Mar 19 — Updated and first posted:
  • 2006 Mar 19 — Virginia Supreme Court case added and discussed
  • 2006 Mar 19 — outline and notes for recommended dispute resolution added
  • 2006 Jun 21 — dictionary definition of ombudsman added
  • 2006 Jul 23 — title changed from Enforcement Considerations, various editing
  • 2006 Aug 13 — outline of recommendations moved to a separate post; added references to alternative dispute resolution for POAs within governmental units
  • 2006 Aug 14 — added discussion re current practice in POAs
  • 2006 Aug 26 — added discussion re litigation between POA and owner/member and potential conflict of interest for attorneys involved in such litigation
• Links:  Dispute Resolution Considerations at [http://swagman.typepad.com/poa_governance/2006/02/dispute_resolut.html]
• Key Words:  KeyWords

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Enforcement Consideratons

2006 February 16
Last edit:  2006 Aug 13.  See History for brief descriptions of changes and updates. 

• Use your browser's search command to search for dates as shown above, or just search for year and month, to locate text that has been added or revised.

    This post is the enforcement part of a discussion of enforcement and dispute considerations in common interest developments (CIDs) and property owners associations (POAs).  The Dispute Resolution Considerations are in a separate post and refer to recommendations to provide practical, effective, certain, timely and low-cost means of enforcement and dispute resolution for individual POA members.

    This is work in progress.  Most of the background is well developed and shows the need for reform.  Various alternatives for reform for listed with a few notes regarding each.  The various notes will be converted into appropriate text.  It is being posted at this time for comment and suggestions. 

Don Nordeen
===========
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• History:  Changes are usually identified in the text with the date which facilitates searching by date.
  • 2006 Feb 16 — Initial Post
  • 2006 Jul 24 — post split into two posts:  Enforcement Considerations and Dispute Resolution Considerations
  • 2006 Aug 13 — added more discussion about the lack of separation of powers in a POA as related to enforcement and dispute resolution
• Links:  Enforcement Consideratons at [http://swagman.typepad.com/poa_governance/2006/02/enforcement_con_1.html]
• Key Words:  KeyWords

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Obligations and Authorities for the Board of Directors

2006 January 08
Last update: 2007 Feb 08. See History for brief descriptions of changes and updates. 

    Typically, the nonprofit corporation law and the governing documents in common interest development (CID) managed by a property owners association (POA) concentrate the powers and authorities with the board of directors.  When "things go wrong", an inevitable and predictable division and distrust develop between the board and the members.  The problems the POA then has are the direct result of the actions of the boards of directors.  The decisions and actions are those of the board or recommendations of the board approved by the members.  One can argue that members are not given full and accurate information, but regardless the actions taken were those recommended by the board. 

    There are many principles for democratic organizations which include:  rule of law, separation of powers, limited powers in any single group, independent judiciary, due process, independent press, fair and disciplined processes for elections and votes by members, freedom of information, open meetings, ... . 

    Part of a philosophy of "Building Community into the Community" is for the members to limit the powers of the board of directors (stewards is a better name) with more involvement and decisions by the members.  Rather than a broad authority for the board "to manage the affairs" of the associations (which attorneys at the board's request will gladly interpret to mean the board has virtual total power), the bylaws and other governing documents should define specific and enumerated Obligations and Authorities. 

    The continuation of this post is a straw man for defining limited Obligations and Authorities for the board.  The limitations also make the task of being a board member easier, which may create a willingness on the part of more members of the POA to serve the community. 

    Please provide your thoughts and ideas. 

Don Nordeen
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• History: 
  • 2006 Jan 08  — Initial Post
    
  • 2007 Feb 08 — general description of the limited authorities for the board added
• Links:  Obligations and Authorities for the Board of Directors at <http://swagman.typepad.com/poa_governance/2006/01/obligations_and.html>
  
• Key Words:  KeyWords

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Democratic Model for Governance of CID/POA

2005 December 09
Last update: 2006 Jul 04. See History for brief descriptions of changes and updates. 

    Work in Progress. 

    For many reasons, the various state laws and governing documents for common interest developments (CIDs) and property owners associations (POAs) are based on what I call the "Developer's Model for Governance".  The various state laws appear to have been influenced by the common interest development and community associations industry without much influence from individual property association members who likely would be advocates of members' rights and application of democratic principles. 

    Amendments to the various state laws are now occurring in many states.  These amendments add democratic principles and make changes toward municipal law.  The "Democratic Model" develops a governance model beginning with democratic principles.   

    The continuation of this post describes the broad aspects of a Democratic Model.

Don Nordeen
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• History: 
  • 2005 Dec 09 — Initial Post
    
  • 2006 Jan 10 — added discussion about a way of organizing and thinking about governance of POAs and Cids
    
  • 2006 Jan 11 — specific list of democratic principles added
  • 2006 May 20 — added more information on legislators being advocates for individual POA members
    
  • 2006 Jun 12 — list of democratic principles edited
    
  • 2006 Jul 04 — added language from Arizona constitution re fundamental democratic principle
• Links:  Democratic Model for Governance of CID/POA at <http://swagman.typepad.com/poa_governance/2005/12/democratic_mode.html>
  
• Key Words:  KeyWords

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Legislative Activity — CID & POA

2005 December 8
Last update: 2005 Dec 22. See History for brief descriptions of changes and updates. 

    This post provides internet links to articles on legislation concerning common interest developments (CIDs) and property owners associations (POAs).  This list is not complete, but provides links to articles that come to my attention.  Most of the new legislation concerns amendments to existing law in response to complaints from POA members. 

    The continuation provides those links in "bullet format" together with a one-or two-sentence summary for a quick read. 

    Please provide links to other articles concerning new legislation on CIDs and POAs.  Thanks. 

Don Nordeen
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• History: 
  • 2005 Dec 08 — Initial Post
    
  • 2005 Dec 22 — added information re state laws providing access to records
    
• Links:  Legislative Activity — CID & POA at <http://swagman.typepad.com/poa_governance/2005/12/legislative_act.html>
  
• Key Words:  KeyWords

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Community Associations Industry

2005 December 04
Last update:  2006 Mar 14.  See History for brief descriptions of changes and updates. 

• Use your browser's search command to search for above dates or just year and month to locate added and/or revised text. 

    Terminology is an ongoing issue with regard to Common Interest Developments (CIDs) and Property Owners Associations (POAs).  Various states use different terms for essentially the same definitions of real estate developments and organizations of owners.  Another informal organization that is significant in both is the "community associations industry" — sometimes called the "common interest development industry" which is use in California and other western states. 

    The continuation of this post describes these two informal organizations, their content, and their interests.  Regardless of what may be stated, individual homeowners are not significantly represented in either. 

Don Nordeen
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• History: 
  • 2005 Dec 08 — Initial Post
  • 2006 Mar 14 — added internet search information to show interest of the industry in itself vs. owners who provide all the funds
    
• Links:  Community Associations Industry at <http://swagman.typepad.com/poa_governance/2005/12/community_assoc.html>
  
• Key Words:  KeyWords

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Definitions for Common Interest Developments

2005 November 27
See History for brief descriptions of changes and updates. 

    The content in this post was previously included as part of Definitions/Glossary.  However, expansion of the subject matter with more discussion has been added to meet other needs.  Accordingly, a separate post has been created for definitions of common interest developments (CIDs), which is the continuation of this post. 

Don Nordeen
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• History: 
  • 2005 Nov 27 — Initial Post
• Links:  Definitions for Common Interest Developments at <http://swagman.typepad.com/poa_governance/2005/11/definitions_for.html>
• Key Words:  KeyWords

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