Twenty Percent Of US Population Live Under HOA Rules

Here is an interesting stat:

“Today, according to the Community Associations Institute, nearly 60 million Americans live in a planned development, condominium complex or some other form of housing governed by an association.

The number continues to grow. Firm statistics are hard to come by, but anecdotal evidence suggests that 80 percent of new housing being built in urban and suburban areas is in common-interest developments governed by covenants, conditions and restrictions, said Frank Rathbun, a spokesman for the institute.”

With this kind of growth, it is easy to see that HOA communities will quickly go from the current 20% – to a majority of households in the next decade or so.  With that many more folks subject to the kind of HOA Board abuse that we see at Deer Ridge, there are an increasing number of new laws being passed by states to protect the people who live under HOA regimes.  Tennessee just updated their condominium laws in 2008.

Part of our current legal investigations includes whether GGRC, Gatlinburg Golf and Racquet Club, is in compliance with these new condo laws.

As more folks tap the power of the blog and the Internet, these petty tyrants who attempt to usurp the power of HOAs will be publicly exposed for their violations of controlling property documents – and violations of state and federal laws.

Recording Board Meetings

As readers already know, several of us want to have the all board meetings for Deer Ridge Mountain Resort recorded so that all owners have a right to hear everything that ACTUALLY happens at those meetings – instead of the sanitized and biased “minutes” that are sent to owners.

As other owners who have reported here on this blog, when they read the minutes that are sent to all owners – they have commented that those minutes in no way reflect what actually happens at board meetings they attended – completely leaving out topics that are discussed for hours – and touting what might have been a minor discussion as a major part of the minutes as long as it might advance the bias of the board and Joe Thomas’ agenda.

I am receiving email from folks all over the country supporting our efforts to finally return the power of decision making to ALL owners at Deer Ridge.  One reader just sent me a link to a Chicago newspaper article about a HOA there that wanted to stifle First Amendment Rights by trying to fine owners $10,000 for recording their board meetings.

While the following reflects Illinois law, I think it is probably indicative of our own legal rights in the upcoming lawsuits against GGRC and the individual board members and Joe Thomas.

Marina City News – MTCA Bans Recording Of Board Meetings – Article on November 12, 2008

• Resolution “unlawful on several grounds,” says attorney
• “Gross dereliction of fiduciary duty,” says former MTCA president
• Unit owners not allowed to comment before rule is put into effect
• Board members again exposed to lawsuit and personal liability

12-Nov-08 – In defiance of state law and the First Amendment, Marina Towers Condominium Association has banned “taping, filming or recording“ of its board meetings.

The resolution was announced at the September 24 meeting and put into effect immediately. A tape recorder in use at the time was then confiscated.

Recording would only be allowed if the unit owner signed a written agreement. The recording could only be for the owner’s personal use. The recording could not be given to anyone else. And the condominium association would retain ownership of the recording.

Violation of the rule would result in a $10,000 fine – against either the unit owner recording the meeting or any “unit owner, tenant or resident” who publishes, rebroadcasts or distributes the recording.

While acknowledging the right of unit owners under the Illinois Condominium Property Act to record the open portion of a condominium board meeting, subject to reasonable rules and regulations, the resolution points to other parts of the Act that says only unit owners may attend meetings and obtain meeting minutes.

A Chicago attorney who specializes in real estate law says the resolution violates the Condominium Property Act, Illinois Constitution, and the First Amendment of the United States Constitution.

According to R. Kymn Harp, an attorney with Robbins, Salomon and Patt, Ltd., “Although the MTCA board…purports to rely upon Section 18(a)(9) of the Condominium Property Act for authority to restrict the recording of the open portion of board meetings and the dissemination thereof, the…interpretation [of the section] is not based upon sound legal grounds.”

Harp says there are six criteria that must be used to make a rule enforceable. For example, the rule must be reasonably related to the purposes for which the association was formed and necessary to protect a legitimate association interest. The rule must not conflict with the Condominium Property Act. And the rule must be adopted by proper board action and made public to all owners and residents before its effective date.

“Additionally, Illinois case law requires that rules adopted by the board must be objective, evenhanded, nondiscriminatory, and uniformly applied,” says Harp. (Left) R. Kymn Harp

The resolution claims it would be circulated to unit owners prior to a vote on its inclusion in MTCA rules and regulations. However, with the rule in place now, it’s been seven weeks since it was announced and unit owners still have not received a copy of the resolution.

Rule stymied by First Amendment

The First Amendment is troublesome for the MTCA ban. The Illinois Condominium Property Act says that “no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States of America or Section 4 of Article I of the Illinois Constitution.”

Besides the U.S. Constitution, freedom of speech is protected by the Illinois Constitution.

Two other attorneys, who did not want to be identified, have said the resolution violates the First Amendment. The resolution has been described as “over-the-top,” adopted improperly, and unconstitutional, with the obvious purpose to suppress dissent.

The $10,000 fine, says Harp, is not reasonable or proportionate to the severity of the violation.

“The proposed rule of the MTCA board is unlawful on several grounds. It appears to serve no legitimate association interest; is not narrowly drafted; conflicts with Section 18 of the Condominium Property Act in that it violates Section 4 of Article I of the Illinois Constitution; purports to impose a fine that is not proportionate to the violation; and is not reasonably related to the purpose for which the condominium association has been formed.”

Harp also maintains that the rule appears to conflict with the responsibility of the board to act in a manner reasonably related to the exercise of its fiduciary duty – to the association as a whole and to individual members. “The rule is a clear attempt to chill the free and open discussion and criticism of board actions in violation of the free speech rights guaranteed by the First Amendment to the Constitution of the United States of America.”

Harp says if challenged, the proposed rule would be found in court to be invalid and unenforceable.

“It may also form a basis for board member liability for seeking to deprive citizens of their constitutional right to free speech and dissent.”

Marina City Online to blame for this one

The resolution refers indirectly to Marina City Online. We have obtained recordings of MTCA meetings from unit owners, written a news article about each meeting, and then made available on our web site the original audio. MCO provided the only timely coverage of MTCA board meetings. It can take months for the MTCA’s coverage of its board meetings to appear in the MTCA newsletter. As of November 12, for example, on the MTCA web site the current newsletter is dated June 2008.

Although MTCA claims this hinders people attending board meetings from expressing their opinions, comments from audience members at condo board meetings have not been allowed for the past year.

Former MTCA board president Dr. Martin Flynn says recordings are permitted. “You do not need advance permission. I suppose they can have you sign a form that you will not disrupt the meeting or walk around, or intimidate, and that they have a record of who recorded the meeting but other than that I can’t think of any restriction that does not infringe on your right to record a meeting.”

Dr. Martin Flynn

Flynn, who was on the board from 2000 to 2002, is dubious of MTCA claims that it would own the recording. “Are they laying claim to notes that might be written? Also, state law only addresses the recording of meetings. It does not state, nor can one infer, that the board can determine what is done to the recording afterwards. Would they deny publication of a transcript? And finally, the fine itself is so large as to be egregious and again, cause pause and therefore hinder an owner from even attempting to record. It is a gross dereliction…of their fiduciary duty.”

Flynn recalls that in the 1990s, all board meetings were recorded and transcribed at a cost of $15,000 to $20,000 per year.

If you click Recordings you can read the article at their web site.

No More Trampled Rights At Deer Ridge

It is past time that Deer Ridge was properly managed by property owners who care about the rights of ALL owners.  It is past time to FIRE every current board member and General Manager Joe Thomas – and elect owners who will run Gatlinburg Golf and Racquet Club in compliance with the Master Deed and Bylaws of our property – and in compliance with our First Amendment Rights.

Please leave YOUR comments below.