Category Archives: Housing

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.

See also:

“Ian Lind: Hawaiian Activist Was Right All Along, Supreme Court Rules,” Civil Beat, May 15, 2017.

“Hawaii Supreme Court narrows definition of “disorderly conduct” in case of Hawaiian activist,” iLind.net, May 15, 2017.

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.

The pets and homelessness connection

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I recently ran across a very interesting little article about the role of pets in the creation of homelessness (“Renters fight back to keep their pets—and homes”).

The article describes how two legal programs in Los Angeles—one addressing landlord-tenant issues, the other providing aid to people trying to keep their pets—found they were dealing with two pieces of the same overall issue.

Los Angeles-area courts hear some 54,000 eviction cases each year, and no one knows how many more move “voluntarily” at the first landlord threat. Pet issues — sometimes legitimate, often not — are high on the list of why: Evoking a previously unenforced “no pet” clause is one good way for property owners to empty a building before it’s put up for sale, or to push out low-rent tenants in a gentrifying area.

Pets also hamper tenants from finding any housing at all — about half of Los Angeles’ rental units and most homeless shelters don’t allow them. The federal Fair Housing Act requires landlords to make “reasonable accommodation” for tenants with physical or mental disabilities, a requirement that includes accepting certified service or emotional support animals. But tenants can’t insist on rights if they don’t know they have them.

Enter Prado’s public interest law firm, the Housing Equality and Advocacy Resource Team (HEART), and the legal services offered by the Inner City Law Center via DDR’s Pet Resource Center on Skid Row. These parallel efforts may represent the first time no-cost attorneys have focused solely on pets as the driver of housing problems. They also mark a powerful merger of movements: the struggles for social justice and for animal welfare.

Seeing how many of Hawaii’s homeless have pets suggests that these same issues play a role in at least a significant part of Hawaii’s problems.

It makes me wonder whether any of Hawaii’s animal welfare organizations, including the Humane Society and SPCA, facilitate access to legal assistance and other types of general support?

And do those dealing with housing issues keep track of the proportion of cases that revolve around pet-related issues?

It’s the connection between pet and housing issues that’s important here.

Over time, intervention program counselors have repeatedly seen families forced to choose between their housing and their animals’. The problem is widespread. A survey by the National Council on Pet Population Study and Policy found the top two reasons for surrender of both dogs and cats were “moving” and “landlord not allowing pets.” In a 2015 motion, Los Angeles City Councilmember Paul Koretz noted that “since 2011, at least 22.6 percent of relinquished dogs and 18.6 percent of relinquished cats” had been turned over to city shelters because of tenancy restrictions.

And this:

Humans evicted because of animals face predictable financial and emotional consequences, including job loss, depression, poverty. Eleven percent of Los Angeles County’s unsheltered homeless directly cite eviction or foreclosure as responsible for putting them on the street. Animals made homeless when their people lose housing face life in a shelter cage. Keeping dogs out of shelters and keeping people off the street are part of the same fight.

Anyway, I thought it would be worth sharing.

If you’re active on animal welfare or housing issues, please share your perspective on this.

A picture of Inequality

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This was the scene at the end of Kahala Avenue in front of Waialae Beach Park this morning. It was a very typical morning.

The house in the background, which sits on about 1/3-acre of land, sold at the beginning of 2019 for a reported $5,283,000. The buyer is a Japanese company based in Hokkaido, Japan. The company director who signed the deed made the news less than two years earlier by paying $22 million for a condominium in the Park Lane condominium at Ala Moana Center.

The house boasts two floors with total living area of 9,351 square feet. It has 14 rooms, including four bedrooms, five bathrooms, and two half baths, according to real estate records. It seems to be a corporate investment in Hawaii real estate.

Back to the beach park. The small red car has been parked across the street in front of the $5.28 million house for months. It is home to a man who would otherwise be considered homeless. It’s his bedroom, his living room, his storeroom, and his workshop. I’m not at all sure how he survives. I can’t say he has nothing, because his car appears to be stuffed with, well, stuff. But I think it’s fair to say he has very, very little. He moves the car from one parking space to another in the same short block to avoid being ticketed by police. But he is somehow surviving.

The Yin and Yang of our modern life.