Category Archives: Housing

Homeless is a national problem, needs a national response

Watching and reading news from other parts of the country, I’m reminded that homelessness is something we are grappling with at the local level, but it is really a national problem with national roots. How else do you explain that the same thing is repeated in city after city across this country?

And if it’s a national problem, it is something that is going to take national resources to address in more than band aid fashion.

The roots? Here are two suggestions.

• The dramatic rise in economic inequality and the hollowing out of the middle class since the 1960s.

• The impact of Reaganism and the decline in federal funding for mental health services and other “social safety net” services over the past four decades.

The decline in available community mental health services in Hawaii contributes not only to homelessness but also to the costs of imprisonment.

More communities are realizing that homelessness is a form of emergency that needs an emergency response. Now Congress has to get the message that local communities need federal resources they would be eligible for if this were a natural disaster like a hurricane or tsunami.

See: You can easily find lots of examples in recent news stories, but here are a few.

What Don’t We Understand About Homelessness in Portland?

Searching the stories of the homeless for meaning and understanding about how it happens

“State of Emergency”: Special Report on California’s Criminalization of Growing Homeless Encampments

Historical statistics of Hawaii

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I have a simple recommendation. If you ever find yourself wondering what Hawaii was like in the “old” days and how it changed over time, an extremely useful reference is Robert Schmidt’s “Historical Statistics of Hawaii.”

Schmidt compiled the book when he was serving at state statistician. The book has 26 chapters covering different aspects of the community and economy, each with an introduction that surveys the history of the collection of data on that particular subject. It’s really a treasure trove of fascinating bits and pieces of history, although you’ll have to get comfortable looking at data presented in table form.

This is a huge printed book, running nearly 700 oversize pages. I once found a used copy in a thrift shop, and used hardcover copies can be found for about $25 from Amazon or the independent bookstores that sell via Alibris.com.

This weekend I was looking for data to illustrate the changes in post-WWII Hawaii. I ended up using data showing how the population shifted from rural to urban areas from the 1800s through to the late 1960s, and showed how the number of private cars doubled between 1945 and 1950, and then doubled again by 1962. Another chart that I used traced the changes in retail sales as both downtown Honolulu and small mom & pop stores were overtaken and overshadowed by Ala Moana Center, Kahala Mall, and other regional malls during the 1950s and 1960s.

In any case, an extremely useful and interesting resources.

But here’s the big hint. It’s also available for free as a 22MB pdf file from the Department of Business, Economic Development, and Tourism.

I’ve downloaded a copy and filed it for quick future reference.

You might want to do the same.

The housing search as musical chairs

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Laulani Teale is a Hawaiian activist and peacemaker who I greatly admire, sometimes agree with (I’m not sure how else to say that!), and who always shares provocative thoughts.

I’ve taken the liberty of lifting this from a Facebook post of hers this morning.

If you sitting at home, or looking forward to getting home after work today, wrap your head around this view of how the housing “market” looks from her perspective. Then consider the reasons why she might feel this way, and how we might usefully respond.

She writes:

Colonial displacement is basically like musical chairs from hell. That is the simplest way I can think of to explain it. They tap you with eviction, displacement from what is yours and then force you to race them in circles to have a place to be. Then you are either out, totally lost, or you have to displace someone else. Meanwhile the cheesy music is controlled by someone with authority who seems to think that it is all in fun. Someone who keeps removing the chairs, raising the stakes, making the game harder for their own benefit, so that they can have a relaxing break when everyone is displaced, because that is the ultimate goal.

I think we need to control the music, and make a new game.

Keep this in mind the next time the legislature or a county council debates what priority to put on affordable housing for regular people.

Disagreement remains over nonjudicial foreclosures by condo associations

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When Senate Bill 551 CD1 became law on July 12 as Act 282 without Governor Ige’s signature, there appeared to be hope that the legality of condominium associations’ use of nonjudicial foreclosure procedures had been settled.

But the issues will be considered again in a case scheduled for oral arguments before the Hawaii Supreme Court on September 19, which will test whether or not the new law retroactively legalizes all prior condominium foreclosures, or only those of those conducted in accordance with alternative procedures for condominiums adopted into law in 2012.

I’ve been following the condominium foreclosure issues for years, beginning when I served on the board of a condominium association trying to steer its own legal approach. The issues are complex, and I hope that my explanations below don’t cut too many corners in an effort to make it somewhat understandable.

The case before the court is a challenge brought by Gilbert and Daisy Malabe to the legality of the nonjudicial foreclosure brought by the condominium association of the Executive Centre condominium in downtown Honolulu.

The Malabe lawsuit was one of several that attacked nonjudicial foreclosures brought by condominium associations prior to the 2012 rewrite of the law. Those foreclosures utilized what was known as Part 1 of the foreclosure law, which allows mortgage holders to pursue foreclosure without court supervision if their mortgages contain an explicit provision authorizing the “power of sale” in the event of defaults.

Over several years prior to 2012, a handful of law firms took the position that condominiums could also utilize this part of the law to streamline their foreclosure actions, thereby making the procedure less costly. These law firms sold their legal theory and legal services to cash-strapped condominium associations, although other lawyers specializing in condominium law were advising that the strategy was risky at best.

The 2012 amendments to the law created a specific procedure for condominiums to follow when pursuing nonjudicial foreclosures which provided additional safeguards for apartment owners in financial distress, and it was presumed that foreclosure actions filed under that new law would be legal and avoid the legal challenges aimed at Part 1 foreclosures.

However, the Intermediate Court of Appeals, in its 2018 decision in the case of Sakal v. Assn of Apartment Owners of Hawaiian Monarch, held that even those foreclosure actions under the new 2012 law would be legal only if the condominium’s declaration and by-laws contained explicitly provided for the power of sale.

Act 282 (2019) was the legislature’s attempt to overturn the Sakal decision by giving all condominiums the power of sale as a matter of law.

Now in the Malabe’s appeal, the Supreme Court has specifically asked attorneys for the two sides to file legal briefs regarding the impact of the new law on this case.

Here’s the case summary from the Supreme Court’s website.

No. SCWC-17-0000145, Thursday, September 19, 2019, 8:45 a.m..

GILBERT V. MALABE and DAISY D. MALABE, Respondents/Plaintiffs-Appellants, vs. ASSOCIATION OF APARTMENT OWNERS OF EXECUTIVE CENTRE, by and through its Board of Directors, Petitioner/Defendant-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for petitioner:

David R. Major, Jai W. Keep-Barnes, and James G. Diehl of Bays Lung Rose & Holma

Attorneys for respondent:

Steven K. S. Chung, Michael L. Iosua, Timothy E. Ho and Li Li of Imanaka Asato, LLLC

NOTE: Order accepting Application for Writ of Certiorari, filed 05/23/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

On December 13, 2016, Respondents/Plaintiffs-Appellants Gilbert V. Malabe and Daisy D. Malabe (collectively, “Malabes”) filed a Complaint in the Circuit Court of the First Circuit (“circuit court”) against Petitioner/Defendant-Appellee Association of Apartment Owners of Executive Centre, by and through Its Board of Directors (“AOAO”). The Complaint asserted claims for wrongful foreclosure and unfair or deceptive acts or practices (“UDAP”) based on the AOAO’s nonjudicial foreclosure and December 17, 2010 public sale of the Malabes’ apartment due to unpaid assessment fees, which were purportedly conducted pursuant to Hawai i Revised Statutes (“HRS”) § 514B-146 (Supp. 2010) and HRS § 667-5 (Supp. 2010). On February 17, 2017, the circuit court filed an order granting the AOAO’s motion to dismiss the Complaint and entered final judgment.

The Malabes timely appealed to the ICA. In relevant part, the ICA concluded that for reasons explained in Sakal v. Association of Apartment Owners of Hawaiian Monarch, 143 Hawai i 219, 426 P.3d 443 (App. 2018), cert denied, SCWC-15-529, 2018 WL 6818901 (Dec. 28, 2018), the circuit court erred in granting the AOAO’s motion to dismiss Count I, the wrongful foreclosure claim, as the AOAO lacked a power of sale and none was granted by statute. See Malabe v. Ass’n of Apartment Owners of Executive Ctr., CAAP-17-145, at 7 (App. Nov. 29, 2018) (SDO).

On appeal, the AOAO asserts the ICA erred in vacating the circuit court’s judgment with respect to Count I, the wrongful foreclosure claim, primarily arguing that the ICA erred in its statutory analysis and its application of the law to the AOAO, which is a nonprofit. Moreover, the AOAO suggests that SB551, CD1 of 2019, A Bill for an Act Relating to Condominiums, should be considered in any statutory analysis.

As to the sixth question presented regarding SB551, CD1 of 2019, A Bill for an Act Relating to Condominiums, which became law on July 12, 2019, the parties were ordered on July 16, 2019 to file supplemental briefs addressing the following issue:

What effect, if any, does SB551, CD1 of 2019 have on this case?

See:
Supplemental Briefs Re: The Effect of SB 551, CD1 of 2019 on this case.

Plaintiffs supplemental brief

Defendant’s supplemental brief

Also see:

“Court deals major setback to condominium associations, attorneys,” ilind.net, Sept 26, 2018.

“Ian Lind: Why Condo Associations Are Sweating After A Judge’s Ruling,” Civil Beat, April 12, 2017.

“Ian Lind: Wrongful Foreclosure Claims Rock The Condo World,” Civil Beat, August 31, 2016.