At almost all levels of government, from the statehouse to the schoolhouse, the law encourages openness and transparency from the elected few who would govern different parts of our lives. The right to vote for those few, and the right to get information to cast an informed vote, are bedrock American principles.
Except when it comes to the most local of governments, the one having immediate control over one of the most important possessions many of us have: Our homes.
California has over 50,000 homeowner associations (HOA) and common interest development associations (CID). By law, HOAs and CIDs are quasi-government entities and subject to portions of California’s open meetings statutes. For good reason: Their controlling boards are elected and have extensive power over the homes of their members, including the ability ultimately to foreclose and take those homes away. That is why it was so surprising last week to see a well-paid, high powered group of lobbyists and lawyers descend on Sacramento to successfully cajole a committee of state legislators into turning their collective backs on homeowners and on those fundamental American principles.
The Assembly’s committee on Housing & Community Development held hearings on two bills dealing with the governance of HOAs and CIDs. The first bill it considered, AB 1799, permits governing boards to do away with pesky elections. Lawyers and lobbyists for the boards and their management companies argued that actual voting is not necessary if only a few association members are standing for election. In short, a member’s right to vote for a write-in candidate, or to simply refrain from voting for one or more of a slate of candidates in order to register a protest vote will no longer exist.
The bill is based on the argument that, if the election is a foregone conclusion, the associations can save money by just dispensing with elections entirely. But saving money, rather than allowing people a say in their governance, has never been the driving consideration in American democracy. Nevertheless, the bill passed the committee. If approved by the Senate and governor, HOA and CID boards can often just dispense completely with messy democracy. They will no longer have a need to hear from their members at the ballot box.
But the committee’s handling of the second bill was even worse. That bill, AB 1720 which I authored, would have restored the intent of the Common Interest Development Open Meeting Act and allowed homeowners to obtain information about what their elected associations are actually doing with the power they have been granted. Unfortunately, in the face of vehement, dishonest, and self-serving opposition from HOA lobbyists and lawyers, the committee killed the bill.
AB 1720 would have effectively overturned the 2013 case of SB Liberty LLC v. Isla Vista Inc., which gutted the open meeting act by eliminating the homeowners’ right to bring anyone – a friend, family member, interpreter, or attorney – to advise or assist at a meeting of the association board. It would have helped individuals better understand what these quasi-public entities were doing. But, sunshine and the free flow of information were exactly what HOAs and CIDs do not want. At the hearing, one of their lobbyists even testified that the associations’ attorneys object to having other attorneys in the room on behalf of homeowners. Of course they do! But what a betrayal of fundamental principles of fairness for a government committee to go along with that abuse of due process.
Prior to the SB Liberty decision, decades of case law had held consistently that CID/HOA boards were quasi-public entities, and that homeowners were entitled to obtain needed information from them, without unreasonable restrictions. With SB Liberty, though, secrecy became possible and the HOA lawyers and lobbyists have embraced it.
I am afraid that continued secrecy was the real goal of the opposition to AB 1720. It was extraordinary to hear a lobbyist actually admit that, though. Indeed, the opposition was so vociferous that every effort at compromise was quashed, meaning, for example, that even a homeowner with language or physical difficulties cannot have a representative assist in the management of their affairs before the HOA board.
For most people, their homes are their most significant possessions and the source of most of their wealth. Homeowners deserve to have access to any information that may affect their homes. After all, home ownership is a keystone of the American dream. Apparently, the lawyers and lobbyists for HOA’s do not share that dream.