CAI CT - Common Interest Articles One Hour Board Meeting

A revolution is brewing in condominiumland. Unit owners are banding together and demanding that their state legislatures enact a bill of rights to protect homeowners. A major proponent of this movement is the AARP whose Public Policy Institute released its own version of a bill of rights for homeowners in associations in July 2006. See http:www.aarp.org/ppi (referred to here as the “AARP Bill of Rights”).

So what is wrong with homeowners rising up against a centralized government? Isn’t that what Americans are hard-wired to do? This article will argue that homeowners would be better served using a paradigm which focuses on the rights and responsibilities of all stakeholders in a common interest community: board members, developers, unit owners, developers, and lenders. Focusing on just one constituency results in the same lopsided perspective the bill of rights approach seeks to redress.

The AARP Bill of Rights sets forth in a 65 page publication entitled, A Bill of Rights for Homeowners in Associations: Basic Principles of Consumer Protection and Sample Model Statute was authored by David A. Kahne a Texas attorney who represents homeowners and has “actively promoted homeowner rights in the Texas state legislature.” The publication is dedicated to Geneva Kirk Brooks and “those who stood with her, and to all other homeowners who seek the truth and fight for their rights.” It is evident from the outset that this treatise was not the efforts of a balanced group. The voice and experience of board members, homeowners, developers, managers, attorneys and other stakeholders in common interest communities from states other than Texas does not appear to have been included. At a recent seminar at the University of Connecticut, Attorney Kahne acknowledged that his experience was primarily with large scale Texas homeowner associations in detached single family style communities. The ten principles addressed in the report range from security against foreclosure, developing alternatives to litigation, autonomy, document changes, actions of board members, elections and the role of the government in overseeing associations. These are topics which should be of concern to everyone who lives in and works with common interest communities. A meaningful and effective discussion of these topics requires the inclusion of all the constituencies.

For example, the AARP document reiterates over and over again the need to be fair to homeowners. Who can argue with fairness? The problem is that the document is nearly silent on the parallel responsibility of homeowners to treat board members, managers and fellow homeowners with respect and fairness. What sanctions are appropriate against homeowners who intentionally misrepresent association finances, mislead homeowners on petitions, continuously disrupt meetings and libel board members? Kahne ignores this problem. While Kahne, as he should, extorts the abuses committed by associations and their attorneys in collection actions for unpaid common charges no where does he give equal emphasis to the homeowner’s obligation to meet his or her financial obligations to the association. In Kahne’s world it appears that board members are the only ones who understand the communities’ operating documents. What happened to the educated electorate, the foundation for a democratic institution according to Thomas Jefferson.

In contrast to the AARP, CAI National, in a single page, sets forth suggested principles for homeowners and community leaders to follow to create better communities. See www.caionline.org/rightsandresponsibilities/index.cfm
The rights and responsibilities of both homeowners and community leaders are enumerated. Don’t homeowners need to participate in the governing of their communities and live within the established standards for a community to be successful? Missing from both the AARP and CAI documents are the rights and responsibilities of developers. Perhaps that is an article for a different day.

Thankfully, Connecticut communities are developed under a statute which is based on the Uniform Common Interest Ownership Act (“UCIOA”). This uniform act draws upon the wide range of experiences and expertise of individuals from across the country who have endeavored to create a fair and balanced law for all the constituents who have an interest in common interest communities: developers, lenders, unit owners, association boards and even municipalities. Many of the issues raised in the AARP Bill of Rights have been addressed in this law and the Connecticut statute. Many homeowners do not realize that substantial protections of their interests already exist in their communities’ governing documents. A comprehensive review of UCIOA is currently underway and it is evident from draft reports that additional provisions protecting homeowners will be included in a manner which balances the rights and responsibilities of all who dwell in community associations.

Connecticut, as one of my colleagues is fond of saying, is the “land of little condominiums.” We do not have the large scale 1000 plus developments which are prevalent in Texas and other places in the country. Arguably, our smaller communities are in a better position to self-govern. Nonetheless, abuses of board power are the fertile ground upon which efforts to promulgate bills of rights for homeowners grow. Competent fair leadership should be the goal of every community. The abuses described by Kahne in the AARP report should be reviewed closely. If you are a board member in a community where homeowners do not have access to association records, are denied the use of clubhouses for meetings to discuss their concerns, where elections are “rigged” and the board uses its power to “get even” with homeowners they do not like, a bill of rights is probably in your future. Alternatively, expect your community to take a hard look at your leadership decisions and seek to replace you with directors with a fairer balanced hand .

The best way to create balanced communities is to have an open dialogue with all the constituent groups and enact policies, document changes and, where appropriate, support legislative changes that meet community objectives. This process requires homeowners and boards alike to educate and listen to each other’s concerns. Where appropriate, an association can retain the assistance of a trained facilitator to guide them in these discussions. Connecticut communities should be able to self govern without turning to the legislature to enact partisan objectives.

Lisa J Anderson is a founding partner of Bender, Anderson and Barba, PC., a Hamden-based law firm. Her firm has represented Connecticut homeowner associations for over 25 years. She is a founding member of the CAICollege of Community Association Lawyers. Attorney Anderson is a trained mediator and facilitator and is frequently retained by clients and non-clients alike to facilitate difficult association meetings and to mediate disputes between unit owners and associations.