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 Dispute Resolution in Owners Associations

2008 December 29
See History for brief descriptions of changes and updates. 

     The continuation of this post was written by Shu Bartholomew, host and producer of On The Commons, a weekly radio show dedicated to discussing the many issues surrounding mandatory membership common ownership developments.

Don Nordeen
==========
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• History:  Changes are usually identified in the text with the date which facilitates searching by date.
  • 2008 Dec 29 — Initial Post
• Links:  Comments on Dispute Resolution in Owners Associations at [http://swagman.typepad.com/poa_governance/2008/12/comments-on-dispute-resolution-in-owners-associations.html]
• Key Words:  Legislative Issues & Proposals;  POA Governance;  POA Members' Rights;  POA Problems;  Private Government;  dispute resolution

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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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Meetings, Information, Proxies and Voting

2007 January 10
Last edit:  2009 Jan 23.  See History for brief descriptions of changes and updates. 

    Election laws in most states are comprehensive, and are undergoing change as problems and abuses are discovered.  No part of democratic principles is more fundamental than guaranteeing the right the vote. 

    The voting and election laws for property owners associations are minimal.  In most states, they probably have evolved from corporation law to nonprofit corporation law to laws specific to property owners associations (POAs) in some states.  In Michigan, the voting and election provisions are in the Michigan Nonprofit Corporation Act, and are minimal.

    The continuation of this post discusses the various considerations, the potentials for abuse, the need for a fair method for informed absentee voting, and a recommendation for a "two-meeting" process (similar to the concept of three readings) to ensure fair and informed voting. 

Don Nordeen
==========
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• History: 
  • 2009 Jan 23 — Text from Proxies and Proxy Voting added as new section
  • 2007 Jan 10 — Initial Post
• Links:  Meetings, Information, Proxies and Voting at [http://swagman.typepad.com/poa_governance/2007/01/meetings_inform.html]
• Key Words:  • Fiduciary Duty; • Governing Documents; • Legislative Issues & Proposals; • Michigan; • Nonprofit Corporation Act; • POA Governance; • POA Members' Rights; • Private Government; democracy; democratic; meeting; members' meeting; members' rights; Michigan; proxies; proxy; proxy vote; proxy voting; vote; voting

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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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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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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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New Jersey Twin Rivers Ruling

2006 February 10
Last update:  2007 Aug 11.  See History for brief descriptions of changes and updates. 

• Use your browser's search command to search for the date in the above form, or just the year and month to search more broadly, to locate text that has been added or updated. 

    A ruling by the New Jersey Court of Appeals in the Twin Rivers case was issued on 2006 Feb 7.  (added 2007 Aug 05)  The NJ Supreme Court (full opinion at Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Association (A-118-122-05)) overturned the Court of Appeals, or maybe only part, and added a number of general considerations/requirements concerning owners associations.  This may well be a landmark case in that it is a first to rule that certain constitutional rights, namely free speech and expression, extend to common interest developments and to property owners associations (POAs). 

    The case was brought by a few members of the Twin Rivers Association against the Twin Rivers Association.  The plaintiffs were assisted by the Rutgers University Law Center and the New Jersey chapter of the ACLU.  Based on information available on the internet, the combined legal costs (plaintiffs and defendants) may well be in excess of $500,000.  Along with the five-year court battle, the high cost illustrates why many of the fairness and justice issues for POA members are not litigated.  Individual members of property owners associations just don't have that kind of money, and consequently actions of boards of directors remain unchecked.

    The continuation of this post provides further discussion and links to various articles and other information on the case. 

Don Nordeen
===========
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• History:  Changes are usually identified in the text with the date which facilitates searching by date.
  • 2006 Feb 10 — Initial Post
  • 2006 Mar 3, 16, 25, and 26
  • 2006 Apr 6 — updated URL for opinion updated. Added text concerning expressive rights from opinion.
  • 2006 May 5 — link to discussion forum on this lawsuit added.
  • 2006 May 8 — link to law review article on this lawsuit added.
  • 2006 Jun 12 & 13 — added brief discussion and links to articles concerning appeal to the NJ Supreme Court and related legislative activity
  • 2006 Nov 04 — link to Mr. Staropoli's post on the AARP Amicus Brief added
  • 2006 Dec 30 — added discussion of the case that was submitted to a law weblog, and and a link to the related news article
  • 2007 Jan 14 — added recent news articles and link to Mr. Staropoli's post summarizing the case
  • 2007 Feb 10 — added link to New Jersey law blog post
  • 2007 Aug 05 — added several links concerning the decision by the NJ Supreme Court
  • 2007 Aug 11 — added comments re need to address legislatively
• Links:  New Jersey Twin Rivers Ruling at [http://swagman.typepad.com/poa_governance/2006/02/new_jersey_twin.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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Fiduciary Duty

2005 November 30
Last update: 2006 Mar 01. See History for brief descriptions of changes and updates. 

     This post is work in progress, and may be nearly completed.  The continuation now contains excerpts from the Michigan Nonprofit Corporation Act, excerpts from the ABA Model Nonprofit Corporation Act of 1987, excerpts from case law, one paper on the subject, and numerous references available on the internet.  At this time, I believe that most of the concepts are in the continuation. 

    Your questions and comments are welcome. 

Don Nordeen
   
P. S.  Please be advised that I am not an attorney.  This post is concerned with governance and management issues arising out of attorney-POA relationships.  Any analyses or opinions expressed or inferred are those of a lay person and are not legal advice.
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• History: 
  • 2005 Nov 31 — Initial Post/li>
  • 2006 Jan 10 — added discussion and reference that courts tend to apply fiduciary duty for business corporations to nonprofit corporations
    
  • 2006 Mar 01 — Added excerpts concerning fiduciary duty from Michigan Nonprofit Corporation Act and the Revised ABA Model Nonprofit Corporation Act of 1987, and revised other discussion. Use your browser's search on the date to identify the added/revised text.
• Links:  Fiduciary Duty at <http://swagman.typepad.com/poa_governance/2005/11/fiduciary_duty.html>
  
• Key Words:  fiduciary duty 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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Legislation on CIDs and POAs

2005 November 19
See History for brief descriptions of changes and updates. 

    There is much evidence that improvements in legislation concerning common interest developments (CIDs) and property owners associations (POAs) can and should be improved in all states and in the Uniform Common Interest Ownership Act (UCIOA).  Generic or common problems have been identified that can be traced to the existing governance model for POAs — which I call the "Developer's Model for Governance".  This obviously occurs since the initial governing documents are written by the developers or jointly with their attorneys.  Accordingly, those governing documents reflect the developer's interests. 

    Many have advocated more democracy in POAs, but a clear description of how to accomplish this in CIDs with their associated POAs has not evolved.  It is likely not possible to amend the "Developer's Model" to address the generic issues.  Thinking "outside the box" with a "Democratic Model" for governance is required — a "clean sheet of paper."

    The continuation of this post describes some of the principal references based on an extensive internet literature search of the governance issues.  Some of the elements of a "Democratic Model" are clearly indicated in that literature search. 

    I would appreciate your comments, additions and suggestions.  Thanks. 

Don Nordeen
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• History: 
  • 2005 Nov 19 — Initial Post
• Links:  Legislation on CIDs and POAs at <http://swagman.typepad.com/poa_governance/2005/11/legislation_on_.html>
• Key Words:  KeyWords

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Ombudsman for Florida Condominiums

2005 October 03
Last update:  2005 Jun 07.  See History for brief descriptions of changes and updates.  

    In 2004 in response to numerous complaints from individual property owners in property owners association, the Florida legislature enacted a series of reforms to the Florida HOA law.  One of these reforms was the establishment of the Office of Ombudsman to handle complaints from individual condo owners. 

    The Ombudsman for Condominiums was appointed in 2004 December.  The continuation of this post highlights a few of the findings in the Condominiums Ombudsman's Report for 2005 Second Quarter.  Also included are internet links to other quarterly reports. 

Don Nordeen
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• History: 
  • 2005 Oct 03 — Initial Post
  • 2006 Jun 06-07 — added information that then-current ombudsman was terminated and replaced
• Links:  Ombudsman for Florida Condominiums at [http://swagman.typepad.com/poa_governance/2005/10/ombudsman_for_f.html]
• Key Words:  KeyWords

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Proposed Amendments to UCIOA

2005 September 30

    The Uniform Law Commissioners, formally the National Conference of Commissioners on Uniform State Laws (NCCUSL), drafted an existing model law for POAs called Uniform Common Interest Ownership Act (UCIOA) in the mid 1990s.  They have recently undertaken a project to draft amendments to the UCIOA.  Incorporation of governance provisions for POAs is one of the areas under consideration. 

    The continuation of this post is an email to the Uniform Law Commissioners on their work to draft amendments to the Uniform Common Interest Ownership Act (UCIOA).

Don Nordeen
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Michigan POAs & Legislation

2005 September 15
Last update:  2009 Jan 19.  See History for brief descriptions of changes and updates. 

    Work in progress.  When completed, this post will contain  information about Michigan POAs, and links to the various Michigan laws that apply to POAs

Don Nordeen
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• History: 
  • 2009 Jan 19 — added link to the Land Sales Act
  • 2007 Dec 05 — added internet link to References on Michigan
  • 2006 May 07 — added discussion and links to Michigan laws and regulations concerning CIDs and POAs
  • 2005 Sep 15 — Initial Post
• Links:  Michigan POAs & Legislation at [http://swagman.typepad.com/poa_governance/2005/09/michigan_poas_l.html]
• Key Words:  Michigan, legislation, Condominium Act, Land Division Act, Land Sales Act, Nonprofit Corporation Act, Planned Unit Development, Summer Resort and Parks Association Act

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POA Legislation at Crossroads

2005 September 14
Last update:  2006 May 29.  See History for brief descriptions of changes and updates.  

Work in Progress (posted for interest and comments)

    This post attempts to define some of the history of POAs and why that history has led to a number of problems with many similarities across the states.  Many of these problems are inherent in the way in which property owners associations have been authorized under the various state laws, and further defined in governing documents that have been drafted by real estate developer.  (added 2006 May 29)  Still others are related to the economic interests of the developers and the assumptions in drafting the initial governing documents and in the various state laws. 

    This history is very pervasive, and has resulted in many people thinking that what has existed in history is the only way for the laws to be.  Moreover, trying to address problems and improve the law is very difficult if one believe that the way of the history is the only way.  Thinking "outside the box" is required. 

    Developers, attorneys, accountants, banks, insurance companies, and others involved in community associations all have their lobbies.  The rank-and-file property owners must depend upon the elected legislators to be their advocates.   

Don Nordeen
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• History: 
  • 2005 Sep 14 — Initial Post
  • 2006 May 20 — added more information on legislators being advocates for individual POA members
  • 2006 May 29 — major revision
• Links:  POA Legislation at Crossroads at [http://swagman.typepad.com/poa_governance/2005/09/poa_legislation.html]
• Key Words:  KeyWords

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