by
Donie Vanitzian
Arbitrator
September 30, 2006
2006(c)Vanitzian

American Association of Retired Persons (AARP)
601 E Street, NW
Washington, DC 20049

AARP, Public Policy Institute
ppi@aarp.org; http://www.aarp. org/ppi
Tel: 202-434-3840

Re: Boycott of AARP; opposition to AARP's proposed homeowner bill of rights aka, the "Impostor"

Dear AARP and AARP Public Policy Institute,

This letter is in response to ARRP's apparent support of Mr. David A. Kahne's proffered "bill of rights." I intentionally do not capitalize those sacred words, because in my view and in the view of millions of deed-restricted titleholders, there is only ONE Bill of Rights.

I oppose the document AARP apparently supports. It is not good for seniors, it is not good for residential deed-restricted titleholders.

Note: Sections or issues not addressed or mentioned in this letter of opposition are not to be construed as the author's agreement.


SLEEPING WITH THE [AARP] DEVIL?
Why would homeowner advocates do a deal with the devil? I still talk to people who remember when AARP charged an affordable $5.00 for membership--and members actually GOT SOMETHING for their belonging. Since that time, AARP has changed. It pushes political and social agendas and ideology at the cost of its membership.

AARP's own public policy referred to the "Uniform Condominium Act" (1977). That act was consolidated by the National Conference of Commissioners on Uniform State Laws in 1980 and then re-consolidated yet again in 1982 into the Uniform Common Ownership Interest Act (UCOIA).[FN1] WHY would owners, let alone purchasers, want THAT? It should be noted, that UCOIA has not been adopted in all the states.

In 2002, AARP's policy manual continued to state it's longtime belief:

"States should enact laws protecting the rights of condominium purchasers in accordance with the findings and proposals of the National Conference of Commissioners on Uniform State Laws."


Many union activists are pushing that tax and spend ideology where all the owner's rights are stripped from them and turned over to bigger boards of directors on the corporate front. Those corporate directors then decide what's good for you. Do you REALLY want THAT? Do you really want to fund a LOBBY in the pocket of the unions or one that kisses the feet of corporate millionaires?

Titleholders: If your state adopts UCOIA you will no longer be able to go to your legislator and complain, because he'll send you to the corporate board of lawyers who dictate what those uniform laws are. How scary is that?

Do owners want to support a lobby that has already let its own membership down?


WHAT'S IN THIS FOR AARP?
What's in this for AARP? Everything. Especially money through the guarantee of a newly acquired, hands-down, no questions asked, paying membership that will in turn fund AARP's lobby. No different than a Union.

AARP's membership is disillusioned and hopping mad, and who could blame them. After watching CEO, William D. Novelli, on CSPAN playing the all-so-important nonpartisan service organization while smirking through the entire interview, I realized the members of AARP were patsies, just like sitting ducks at a homeowner association board meeting, there only for the purpose of paying membership fees.

AARP has been blasted time and again for its blatant conflict of interests, [FN2] involvement in Social Security for the purpose of selling its own securities products to its members, for partnering with businesses who will provide those commodities, for endorsing and/or co-branding insurance and financial products, travel services, and more, all made available to its "members."[FN3]

AARP takes in hundreds of millions of dollars, yet it is no secret that AARP has been successful in avoiding the type of scrutiny other corporations have been subjected to. [FN4]

AARP endorses, co-brands, and promotes health insurance, financial products, travel services, and more, while selling all these same products to its members. Where's the CHOICE in that?


AARP'S FEIGNED INTEREST IN HOMEOWNER ASSOCIATIONS
It is disingenuous for AARP to feign interest in that document when to date, AARP has refused to (1) take a stand with regard to common interest developments, (2) assist seniors in such developments, (3) recognize the problems associated with homeowner associations and residential deed-restricted properties.

Presently, AARP's policy recognition of property falls under its heading "types of property ownership." [FN5] There, AARP discusses community property, tenancy in common, and so on--but not common interest developments. Perhaps the reason for not discussing this type of property ownership is because it is not ownership of "property."


THE IMPOSTORS
While wagging their tails in seemingly uncontrollable excitement, and so eager to put their names to a document riddled with more holes in it than Swiss Cheese, those so-called "hardworking advocates" (their words, not mine) forgot to include the very titleholders they arrogantly presume to represent in the impostor document.

Talk is cheap, and that impostor document talks a lot but says little. It rehashes what already exists piecemeal. Big deal! Yet conspicuously absent is a mechanism to ipso facto protect titleholder interests and assets.

The impostor prejudices titleholders because it sets a benchmark for mediocrity. The document repeats the obvious, such as "increasing concern for denial of homeowner rights." And what is it about THAT--that we don't already know?

By sprinkling horror stories throughout and utilizing quotes from articles with angry, catchy titles about protests of rules and foreclosure, the impostor manages not to let its audience down--but falls short of delivering what titleholders expect and demand.

Tragically, the impostor document minimizes the seriousness of what is happening today to residential deed-restricted titleholders, most especially the elderly. California has penal codes for violating and/or abusing seniors, why didn't the impostors include those penal code violations in their document?

The word that all titleholders "hate" is promulgated throughout the document. That word is: "reasonable. " Without a definition for that term, ALL titleholders are right back where we were before this bogus imposter hit the airwaves. But, ONE thing the impostor appears to have done well, is confuse potential buyers just enough to not buy in a common interest development.

That is NOT a compelling document by any means. In my view, it is pedestrian and bad for titleholders.


RIGHTS? WHAT RIGHTS?
While the so-called purported "rights" might look good on paper or sound good to those espousing its virtues, they are in fact, meaningless and unenforceable. EVEN IF ADOPTED, the proposals set forth are riddled with legal loopholes and crossover laws that I believe will result in the further disenfranchisement of residential deed-restricted owners.

The impostor document begins by saying, "Rather than assert a one-size-fits- all uniform act, the model statute applies the principles of its bill of rights to highlight important aspects of legal protection that homeowners need."

Problem? The impostor proceeds to deliver just that: a one-size-fits- all document. The very thing it says it won't do, it does. It provides no solution to the problems and it fails to provide something that can be used substantively as law.

It makes the situation worse by incorporating some UCOIA language while borrowing words and phrases from other statutes.

By using the word "homeowner" and not the recognized legal definition of "titleholder" the document creates an unintended consequence resulting from its poorly written montage. It manages to encourage rental and investor restrictions thus giving boards the covert idea to limit what titleholders can and cannot do with their property.

Readers of the document are faced with a growing theme throughout. It consists of the misnomer that a chosen few hardworking advocates sought to provide consumer protection to homeowners. Without describing precisely what those consumer protections are, that is a fatally flawed concept.

Titleholders want to protect their own property without having to rely on outside forces. Titleholders want the LAW to protect them not a bunch of wannabee politically motivated AARP groupies. Drafters of the impostor document haven't seemed to grasp that concept yet. We don't want consumer protection, we want the ability to be self-sufficient, independent, and protect our own property and assets. We want equal protection under the laws. We want what all other real property owners get. We want OUR "bundle of sticks" to include all the sticks that a real property owner is afforded at transfer of title.

The impostor's whine fest appears to be reduced to putting forth a "model", that is, ANY model while referring to "communities" -- these are NOT communities.


THE IMPOSTOR'S PROBLEMS PILE UP
As the impostor's problems pile up, their document morphs into the "Headbanger' s Ball."

Though "some" definitions were provided, other key definitions were omitted. Decidedly missing are the terms, "exclusive use," "deed-restriction, " and "equitable servitude." The omission of such words keeps owners in the dark and holds them hostage to industry terminology.

By defining "some" but not "all" aspects, the imposter omits key elements that would otherwise benefit titleholders.

The impostor document "offers no new process other than the hearing, but allows challenges in small claims court." That seemingly innocuous statement is lethal to all titleholders.

The impostors failed to address the most fundamental and growing problem arising today: electronic communications as a failure to deliver notice.

Also shocking, were the omissions of the biggest problems plaguing owners, such as where the h--l are the penalties against the board?

Finally! There is a reference to penalties on page 50: "immediate injunction, a penalty of $500. . .". But that is not a novel concept--it already exists in many state laws. Worse, instead of strengthening that penalty, the impostor encourages a "court's discretion."

Take a look at 3(b) page 61: "If a local government agency has power to enforce governing documents?". Understand that the word IF is misplaced here.

While reading the impostor, there were times when it was hard to take it seriously, I literally rolled over laughing when I got to page 66: "homeowner education." I thought, did I read that right? Did it say, h-o-m-e-o-w- n-e-r education?! ROTFLMAO! Is this the SAME "homeowner" that has to come up with $50,000, $100,000 for a down payment that needs to be educated? How do the impostors propose to educate potential buyers without imposing mandatory timely disclosures by the board of directors? Hell-oooooooo out there.


WHERE THE H__L ARE RESPONSIBILITIES FOR DISCLOSURES! ?
The impostor pushes an Ombudsman's office. Never mind that nearly every common interest development ombudsman's office across the nation has sunk faster than the Titanic. Just like the porked-up Ombudsman's office that rolled over in California [THANK GOD!] the impostor creates yet another maze of reports, websites, more rules, more regulations, more fees. Titleholders are hostages all over again.

Section 101: Here, arguably the most important of all complaints, the impostor FAILS to deliver the goods. It leaves gaping loopholes that are laughable and way too time consuming to address here.

The Section goes on to state, "the assessment past due on the date of the vote exceeds $2,500." WHY? Wouldn't it be a better practice to make the assessment amount that is owed, commensurate to what the association takes in? After all, the traditional industry argument has been that the association cannot continue to function without this owner's payment. I say: PROVE IT! The impostor further ties the owner's hands by placing a dollar amount in the document. How stupid is that?

The impostor repeats obvious and existing phraseology, for instance take a look at this embarrassing and totally meaningless phrase: "Nothing prohibits the directors from approving an installment plan more lenient than provided by existing rules, in which case the directors shall amend the existing rules so that all homeowners shall receive fair notice and equal treatment."

With nothing more, that statement presumes that every board does not give fair notice and homeowners are not treated equally. How FAIR is THAT? -- EVEN THOUGH most believe it. Assuming arguendo that the quoted statement above is true, why do WE have to fund amendment after amendment? Why encourage the wholesale rewriting of such documents?


CALIFORNIA ASSEMBLY BILL 2031
Not too long ago, when AARP was really AARP, its board of directors supported my Assembly Bill 2031 proposal to protect titleholder rights. This bill incorporated a bill of rights-type of proposal and provided that a homeowner who was damaged by a board's failure to keep the records could sue for up to $5,000, the jurisdictional limit of small claims court. That was the LAST time AARP supported any bill regarding a common interest development in California.

There is nothing in the impostor's document that addresses the board's failure to keep records.


THE IMPOSTORS COULD NOT POSSIBLY HAVE BEEN LISTENING TO THE TITLEHOLDERS
Of the boxes and file cabinets of complaints and concerns I have from readers to my co-authored Los Angeles Times column, Associations, the complaints are clear. They are unambiguous. They are straightforward.

But, the impostor document, problems complained of by the masses, are reiterated and utilized in such a way so as to create yet other problems.

On page 17 the impostors discuss installment plans that a board of directors can extend to the titleholder. However, what is omitted, is the expense of that installment plan. First, every time a board provides a lien installment plan the association spends money, hires a lawyer, and amends rules, and bills the titleholder. Second, the titleholder gets blessed with a lien on his property. This is no better than the industry's porking up our existing state laws.

That document also states, "shall receive fair notice and equal treatment." What does that mean?

Right of redemption: While the thought of redemption in this vein is laudable, the write-up is embarrassing and fails to deliver the necessary statute language. Already I see the mortgage and real estate lawyers laughing their heads off at the language in that section as it is unenforceable.

Without explanation and a bunch of hoops to jump through, giving the titleholder the right to resolve issues without litigation as impostors write, is meaningless. Frankly, I'll take litigation any day over arbitration and mediation and most especially before a hearing before board of directors.


DID YOU SAY CONFIDENTIAL MEDIATION? HA! HA! HA! HA! HA! HA!

Right to confidential mediation: Give me a break. Only a lawyer could have written that.

Confidential mediation? Look what that section talks about: MONEY and the OWNER paying 50% of the FEES. The "right to confidential mediation" section admittedly defaults to the state law--what good is that?

Where is the penalty for BREACH of the CONFIDENTIALITY? See my numerous comments to the California Law Revision Commission. I am sorry, but the impostor is ridiculous.

Thank you impostors, for giving us additional rights to petition an ombudsman that we don't even want.

Go to Section 9, look at the mess created by this maze of confusion: then if NO, go to Section 11, if NOT, then . . .".

The impostor document willy-nilly (probably to cover its sorry a_s) inserts "including statutory rights and any others available under Sec. 11." Titleholders have complained about Senators and Assemblymen writing half-a__sed proposals that look just like that.


WHO DO TITLEHOLDER' S CALL WHEN THE BOARD DISTRIBUTES THE WRONG LAW, GHOSTBUSTERS?
Did the Impostors run out of steam? On page 23, please explain what the h__l "any others available," means. What if there are NO statutory rights, and what if there are? The document appears to impose a duty on the association to become the bearer for distributing the law? The last person I would take the law from is my board.

There is no protection for the titleholder if the laws that board distributes are bad, old, wrong, or parsed. That leaves us wide open to fraud and dependent on what an association board of directors tells us. We don't believe the board NOW, why would we believe them later?

The impostor document does not breed independence for the owner, it breeds dependence on the board of directors in power at any given time. That is just what the owners do not want.

There isn't a statute in any state that does not give any titleholder the right to bring a derivative action against the homeowner association to protect the interest of the common interest development, yet this document makes that look like a novel idea, yet they short change the titleholder by not referring to its legal definition. Owners are NOT stupid--they are just TREATED as if they are!


THERE'S NOTHING "SIMPLE" ABOUT IT!
Take a look at page 28. Explain, HOW does a homeowner "SIMPLY" refuse to pay assessments? It is irresponsible for the drafters to use language like that; do they realize how lethal that language is? Why would they encourage that to happen KNOWING the stakes are so high. No owner that I know SIMPLY refuses, there is always a prelude to that situation arising. The impostor's write-up dilutes the seriousness of this matter.

Section 104, states, "right to be told of all rule changes." PUH-LEEZE! This bogus imposter document relies on yet another unverifiable and bogus document called the "governing documents."

Calling all homeowners. Remember these words? Check this out: "available upon request. . .". Are you rolling on the floor yet? Are the Impostors serious?

Here's a profound awakening: "Default or implied powers can surprise homeowners, who typically do not study case law. . ." Did anyone out there NOT know that?

SO WHERE ARE THE MANDATORY BOARD DISCLOSURES? ????????

Section 105: This is really getting painful reading this, I don't know how much more of it I will be able to endure.

Section 106: This section is supposedly headed with "right to individual autonomy." So, what do the impostors discuss in arguably what should be the most important section in the imposter bill: signs and flags. For which a federal statute already exists.

The document says, "no association may force a homeowner to join a separate organization. " blah, blah, blah. Problem: The association doesn't force you to do that, the board does through majority rule!

The document continues, "no MANDATORY charitable or political funding": what is it that these drafters don't get! T he hypocrisy of majority rule allows charitable and political funding and waste.

The impostor drafters have no problem telling you how to spend your money. Perhaps one of most egregious flaws of the Impostor's document exists on page 69: "Small charges for each home should provide sufficient funds for an ombudsperson, including the charge for filing a petition to investigate. See Section 102 (para 4), The Right to Resolve Disputes without Litigation."

Rather than INCREASING our rights, the brilliant chosen drafter-advocates DECREASE OUR RIGHTS. Worse, they look to the California Law Revision Commission (a wholly incompetent, bloated, and inadequate entity on the government payroll) for pricing on how to accomplish that feat without "dipping into the state's general fund."

At the very end on page 65, it all comes together what this is really about. Check out the AARP CEO's background before you read this. Look at his specialty, then read this from the Impostor's document:

"All homeowners should pay this nominal charge as a form of insurance and because they all benefit by promoting this office, even if they do not directly ask the ombudsperson for help."

Who the h__l do these so-called advocate-drafters think they are volunteering money from me to fund this crap? They want a form of insurance--you mean like the kind AARP sells?

Nothing in the entirety of the impostor document prevents amendment of governing documents from converting fines, penalties, attorney costs to assessments. Assessments are foreclosable; in the majority of states, fines, penalties, attorney fees, are NOT.


BILL OF RIGHTS? NOT!
This imposter document appears to be proudly hailed as the answer to all of our problems. But, what the imposter COULD HAVE DONE, was to make a pool of pro bono attorneys available 24 hours around the clock to all titleholders for free in every state.

Where are the laws that unequivocally say that the association MUST KEEP RECORDS? There aren't any. Let alone TRUTHFUL records? Where are the mandatory state audits of those records?

Come on impostors, you had your chance, why did you give us the fluff? We're sick of the hot air.


TRY THIS FOR A REAL STATUTE:
1) Introduce the Residential Judgment Rule. [FN6] Get rid of the business judgment rule along with indemnification for association board of directors. The business judgment rule relies on mouthing the words good faith. "Despite the typical association rhetoric espousing good faith, titleholder disenfranchisement is premeditated because it entails a conscious effort to operate around the law."[FN7]

2) Institute enforceable penalties against boards that break the law.

3) Give buyers 25 days to back out of the purchase with no questions asked and no damages to seller. Time-shares in most states already offer this kind of lemon law.

4) Place the burden of document production and disclosures on the board of directors with penalties for breach.

5) Do not leave attorney fee awards to judges and courts. When a titleholder wins their case against a homeowner association, the titleholder gets attorney fees.

6) Mandate unlimited access to association books and records the breach of which mandates thousands of dollars in penalties made payable to the titleholder whose assets are at risk.

7) Mandate that the board must keep records. Many states may give owners the right to look at records, but if the records do not exist because there is no law mandating boards to keep records, the owner is back to square one.

8) Codify Vested Rights [FN8] for titleholders. That which the titleholder has paid for cannot be taken from him by fines, penalties, interest, attorney fees, etc.

9) Return unused reserve account money to the seller that has not been used by the association at time of sale.

10) Reinstitute the homestead exemption (by federal statute) for ALL residential deed-restricted titleholders. This federal homestead pre-emption will eliminate foreclosures.
............ ......... ......... .
[1] The absolute worst law on the planet.
[2] See http://propagandama chine.com (AARP's plan to save social security).
[3] See Progress for America, Inc., (report, March 14th, 2005) raising questions about AARP's conflict of interests. See also http://www.aarpfore most.com "We are proud to be the company AARP chose to create a special insurance program for members who live in mobile homes [...] We're proud to offer AARP members two superior AARP-endorsed insurance programs."
[4] A BusinessWeek analysis revealed that many of the products AARP endorses and markets only provide average performance, low returns, and considerably less benefits than seniors would otherwise obtain on their own. See Scudder Investments, a unit of Deutsche Bank (markets funds through AARP). See also Lipper Inc. (mutual-fund researcher). See also Morningstar Inc., Standard & Poor's (part of the McGraw-Hill) and BusinessWeek.
[5] See http://www.aarp. org/money/ financial_ planning/ estate_planning/ a2002-08- 12-EstatePlanningOwnership. html.
[6] See Vanitzian & Glassman, Villa Appalling! Destroying the Myth of Affordable Community Living, (2002).
[7] Vanitzian, Common Interest Development - Homeowner's Guide, at 2:30 (Thomson-West 2006).
[8] See Vanitzian & Glassman, Villa Appalling! Destroying the Myth of Affordable Community Living, (2002).

By
Harvella Jones
President – The National Homeowners Advocate Group, LLC©

Texas - The original Homeowner Bill of Rights which is a compilation of the blood, sweat and tears from advocates and homeowners across the country that posted on the website of AHRC (American Homeowners Research Center) is the product of Elizabeth McMahon, Executive Director of the American Homeowners Resource Center and consumer member of the Senate Housing Task Force to Revise the Davis Stirling Act on July 24, 1997. To quote from her website, “This (the Homeowner Bill of Rights) is a compilation of ideas and suggestions by homeowners who either live or have lived in homeowner associations.”
http://www.ahrc.com/oldoldahrc/HOAorg/Billrights/bill.html
You may have to sign up to read the link but it is worth it. If you need to sign in, search for “Bill of Rights/AHRC”.

Now that I have established that Atty. David Kahne’s AARP Bill of Rights for Homeowners was mainly lifted from the website of AHRC, let me explore why Atty. Kahne would take this document from a site where the creators could access it and copy at will and convert it to a copyrighted PDF form that cannot be reprinted without the approval of AARP. Let me repeat, Kahne literally re-arranged a document that was not created by him from someone else’s website into a document that cannot be recreated without permission from an agency that has never shown interest in homeowner issues such as property rights.

Now that it has been firmly established that Kahne did in fact create the guts of his AARP Homeowner Bill of Rights from the site of AHRC, please note the lawyer’s touch in AARP’s version of the bill—the foreclosure for “significant unpaid assessments”. Ah, yes, a foreclosure. Whereas in the original Bill of Rights for Homeowners, in every instance in which foreclosure is mentioned, it is urged not to foreclose:

19. Small Claims court should be used instead of non-judicial foreclosure to collect delinquent assessments.


41. 1. Eliminate the non-judicial foreclosure powers of homeowner association boards 2. Use the small claims process without involvement of attorneys to collect dues and assessments 3. Allow homeowner association to lien after a favorable small claims judgment and collect on the lien at the time of refinance or sale of home. 4. Reinstate the homestead exemption 5. Re-state that no CID law overrides state and federal constitutional protections 6. Cap attorney fees at twice the amount of the delinquencies 7.. Cap attorney fees for enforcement of ARC regulations to no more than $5,000. 8. Set up a reserve fund to enable the association to meet it's obligations when there is a shortfall due to non payment of dues by members. 9.. Forbid the use of the homeowner association reserves to fund litigation 10. Forbid associations to cover non-association entities such as management companies under any of their insurance policies.


43. Associations will not have any foreclosure power nor shall they be permitted to seek foreclosure in any court or any other type of institution.


These are the words from the original Homeowner’s Bill of Rights currently still posted on the AHRC website for homeowners to be able to add to this work in progress.. Real 100% advocates for homeowners do not put their name to any document that promotes homeowner association foreclosures of any kind. There is no homeowner living in a master-planned community or any community for that matter that would become a part of this bogus shameful piece of garbage that Kahne has put together. The only type of homeowner or advocate that would support Kahne’s AARP Bill of Rights are people who believe in compromise. Did Kahne have the right to compromise homeowners’ property and Constitutional rights? Did other advocates have the right to compromise all the work of other advocates? Did other homeowners have the right to compromise all the work of other homeowners? I think not.

Did AARP have the right to take the work product of a group of advocates and homeowners and make it their own? I think not. Several years ago, I tried to get AARP interested in property rights for homeowners. Thinking that the recently foreclosed senior citizen Winona Blevins would help them to become interested, I approached it from the aspect that many senior citizens are being abused just like Winona was in their homeowner associations because they are old and sick and cannot defend themselves against the strength of their own homeowner association who oftentimes has become insensitive to the frailty of its members. It had been noted by me that AARP had taken on some high profile issues for its members although property rights had not yet been one of them and I mistakenly thought they would be interested in this one. Needless to say, I was unable to put a dent into the apathy that surged from the officials of AARP. Now here we are, fast forwarded to 2006, and this great bill suddenly appears with AARP’s name preceding it.

Could it be that AARP also see homeowners as the next best thing to Christmas as so many others do? AARP, a failing and struggling organization out of touch with the times, and with so many baby boomers on the horizon, has now decided to be an advocate for homeowners and why not ensure its success by bringing in a high-profile ACLU attorney like David Kahne to do it with.

Being a firm believer in the rights of others, I propose and support and request that we, the people of the United States, start showing AARP and others, that we still care about what happens to us and better than that, we are still in charge of our lives and refuse to turn our lives into a master-slave community. We wrote the “original” bill of rights and we are the ones who will decide how we live in our communities and we are extremely sick and tired of being an open check book for any and every special interest group that decide they need a shot of advocacy to increase their bottom line.

Now that you know what, why and how, it is time to protest in a way so simple—do not join AARP and if you are a member, cancel your membership and join another senior citizen organization. Do not let AARP redefine how you live. harvellajones@yahoo.com