Wednesday, December 23, 2009

The Meadow Report

I recently had the honor of attending Tony Robbins' Date With Destiny in Scottsdale. I've been a few times before, of course, but this time was a little different. Robbins presented some new content, that, well, just makes alot of sense and is also pretty amusing. At least to me...

Back in the day, we were all part of hunter-gatherer societies. The men were the hunters, the women were the gatherers. Men generally went out with a spear, or a club, took care of business, and drug the carcass back to the cave, and were done. Someone else dealt with it then. So men are wired to go out, solve a problem, take care of business, and be done. We do lots of things that way.

Women, being the gatherers, would go out into the meadows, find the ripe berries, roots, leaves, whatever, and bring them back to the cave. But then they also needed to share the information about where the berries were located with the other gatherers in the tribe; "Go out to the second meadow past the stream, by the big rock, and then there is this bush, about 30 paces past the little ant hill, and then you want the berries from the bush on the left, not the right, and be sure to get the ones that are just the right shade of red ..." you get the idea.

So women are wired to go out and observe all sorts of things, and make sure they have every detail, and then bring the information back and share it with everyone.

In both cases, high degrees of each skill, male and female, related directly to the prosperity, and even survival, of the clan. The best hunters, the best gatherers, led to the strongest and most successful tribes. So, ladies and gents, we are genetically wired to be this way. Men are not hairy women, and women are not hairless men who can multitask. We are very different.

What does this mean -- how can this information be useful today?

Gentlemen, how often does your woman come home and want to share every ridiculous detail of what she went through to find a parking place at the mall? And ladies, how often does your man communicate with you in monosyllables, how often, when you want to tell a story, is he searching for some point to it, when you have none? And how often does he yearn to just fix some problem you have? That's what we do: Women give meadow reports and men want to fix problems.

Gentlemen, two things: The Meadow Report does not have any point; and, she doesn't care whether you remember it or not. She needs to share it with you. You must listen to it, but she expects no action from you as a result (usually -- your mileage may vary).

Ladies, we men sometimes forget that you are delivering a Meadow Report and we will try, in vain, to solve some problem we perceive you have; understand it is how we are wired. We are here to solve problems, break through, and have peace. We are not designed to listen. Your survival depended on listening and sharing; our survival depended on hunting down and killing things.

The vestiges of these behaviors still affect us today. Understanding a little more of why we do what we do (thank you Tony Robbins) can help us live happier, more understanding lives.


Lis Pendens Sanction Illumination

On December 15, 2009, the Arizona Court of Appeals published its opinion in Lebaron Properties, LLC v. Kaufman, which sheds new light on statutory sanctions and that may presage the final outcome in the pending appellate matter of Galeb-Miller Development v. Markham Contracting, mentioned in two previous blog posts. The briefest summary of the facts pertinent to the disposition of this most recent appeal is this: Kaufman, a Scottsdale attorney, represented five defendants in a lawsuit over a busted realty contract. Before filing an answer and counterclaim on behalf of his defending clients (a violation of the Court of Appeals “choate claim” rule established in Santa Fe v. Bartschi discussed elsewhere on this blog), and, apparently without consulting the defendants, Kaufman filed a lis pendens describing the busted-contract land in the Maricopa County Records, and then refused to quash it upon demand from Lebaron.

Lebaron sued under A.R.S. §33-420, seeking $25 thousand in damages since Kaufman represented five defendants in the dispute – the statutory threshold $5 thousand per violation, multiplied by five. The trial judge found that only Kaufman was “to blame,” as there was no evidence that the defendants were in league with the attorney in his decision to file the lis pendens. Nonetheless, the trial judge interpreted the statute to mean that 5 defendants X $5,000 per “violation” entitled Lebaron to $25,000 in statutory damages. Kaufman appealed.

The Court of Appeals disposed of the argument that everyone named in the caption of the lawsuit leading to the lis pendens is per se a “violator”; it cited to the statutory language that a violator must be, at some level, a person “who causes” the filing, meaning an active participant in the lis pendens filing, at least to the extent of knowing (or having reason to know) of one’s attorney’s intended recording of the lien against the other camp’s property. In short, merely being a party to a lawsuit that precipitated the lis pendens lien is not, alone, a sufficient showing of a principal’s scienter (intent or knowledge of wrongdoing). So the Court reasoned that 1 X 1 X 1=1 (single violator, single instrument recorded, single landowner means only one statutory damages award is appropriate).

Hmm. If that’s going to be the Court of Appeal’s perspective, then how will that view affect the Motion for Reconsideration now before another panel of that court in the long-running saga of Galeb-Miller Development v. Markham Contracting? I notice that one of the parties filed a “Supplemental Citation of Authority” with the Court of Appeals on December 18, three days after Kaufman’s slip opinion was issued. I’m guessing that the party doing that filing is reminding the court that the conservative approach – dictated by “episodes” of groundless filing, instead of numbers of lien instruments recorded by the wrongdoer – should determine the size of the statutory damages. (See the August 17th post here for further details.) In other words, your honors if a number of groundless liens contemporaneously are recorded, kindly ignore that, so long as it’s all part of the same episode of groundless liens being impressed against the land of a single owner.


Saturday, December 5, 2009

Co-Housing - Part 5: Matters of Stakeholder Governance

Neighbors in the U.S. decided to take community-based matters into their own hands beginning in the 1900s (one of the first POAs being in Kansas City, in 1905), when they realized that governments, no matter how well-intentioned, can’t handle the variety and number of grievances owners have against their fellow owners in a subdivision or condominium project. Sounded like a good idea; but eventually, POAs (my initial-ism for property owners’ associations, a generic term for the several types of organizations of property owners) began to feature, in too many instances, direction by little tin gods who behaved in more draconian fashion than any government bound to recognize its citizens’ constitutional rights. POAs lately are not turning out to rule with sensitivity and benevolence as they initially were envisioned to do. John Uhri of Indiana heard enough of their narratives to start a blog called “Neighbor Revolution,” in which he writes, plaintively enough: “We want to get to know our other neighbors better and turn into a true community. We’d rather have our neighbors stop by and say they wished we’d cut our grass more often instead of sending out a HOA bully to do the job. Is this possible? I don’t know. But I think we should try.”

Amen, John. I got nauseated, as legal counsel, sending demand letters to owners over placement of basketball hoops and holiday-season lights on their buildings and grounds, so I stopped representing POAs decades ago; and I’ve never missed a moment of the bickering. This landscape of micromanagerial silliness is not susceptible to repair by state government. The most Arizona’s legislature has been able to do is to safeguard persons expressing their patriotism to fly certain flags and to post certain political-and-candidate affinity signs. And that legislative effort was agonizing enough. Time to wipe clean the slate of overbearing self-governance in a new environment of co-housing. But how shall you proceed afresh?

First, I think that a new community, especially one that comes on-line in haste, should begin the organization of mass behavior through a constitutional convention. Seriously. I mean in town-hall fashion, the folks committed to purchase their dwelling units – but hold the land on that sale, please - should sit down together and decide what matters to them as a community. What really matters, I mean; not micromanagement of the operation of the project in perpetuity. And a part of that community effort entails doing the same thing, repeatedly, minimally each seven years after the original constitution is adopted. One of the stupidest parts of current POA self-governance is the notion that a development (or public taste) is immutable, and that the neighbors will always hold onto the same “community values.” (Query: Would you rather have the skateboarder using those noisy ramps in his/her parents’ driveway – or in the street?) Truly, later “generations” of owners bring different expectations for the form and appearance of their dwellings and the overall project, and are stuck with the declaration of restrictions from 30 years past that never can be amended or terminated without a unanimous vote of the 48 subdivision lot owners - as if that’s ever going to occur. (You remember the CCRs containing the clauses about the garage or carriage-house that can’t be built until the primary dwelling is erected, coupled with far less kinder restrictions on the races of people who can and can’t live in them.)

But in new co-housing projects with aggregated amenities, the owners begin their engagement with the community under the assumption that cooperation and distinctiveness are themselves virtues, not the ingredients of a recipe for continual contention. And since a property devised co-housing constitution is an organic document, the project is not undergirded by mutual distrust but by respect. Additionally, since the co-housing project may feature movable dwelling units, if there is discord sufficient to fry the “good vibrations” of the community, the folks finding themselves on the “outs,” as they say, can pick up and leave with less difficulty, headed for a more empathetic community of kindred spirits. Here’s a few suggestions on how to prevent that from happening – inserts for the new constitutions.

• Encourage youth to address the periodic community meetings (conventions); they are both more intuitive than adults and less subtle in means of their expression, thus increasing the odds that the truth will be spoken in these meetings,

• Allow the constitution to be amended by something far less than 100% affirmative vote but something more than a simple majority of the voting community members (2/3rds),

• Articulate a dispute resolution process as between individual dwellers; what about this, assuming the instance of a community established via a land trust and having a sole Trustee charged with the daily administration of the land trust:

a. In the first stage, the disputants meet face to face, in an unsupervised conciliation meeting. Conciliation occurs when the parties agree on concessions each to be made to the other’s point of view, sometimes achieved by a change in behavior of a party, and at other times by specific actions of one or both parties to the dispute. If the concessions are sufficiently substantial, the dispute ends there. Accordingly, the most efficient means to curtail expending personal or community resources is to train community members in conciliation processes at the outset of the community.

b. During the second stage, the parties meet in a mediation setting with a neutral person from outside the community. The objective at this stage is to identify the divide between issues that are resolvable and irresolvable without further processes. If sufficient issues are mediated to a reasonably satisfactory result, the next stage of the disputant’s conversation may be a. above or c. below.

c. At the third stage, remaining disputes following steps a. and b. above (if there is no further conciliation process) are arbitrated by a neutral unaffiliated with the community. At the conclusion of this stage, one party has prevailed in its position concerning each issue not earlier resolved; and the arbitrator’s decision is binding, by prior agreement of the parties to the arbitration.

(The fourth stage described in d. below is not technically a dispute resolution step; instead, it is “aftermath adjustment” of the attitude of the non-prevailing party in the arbitration.)

d. In the aftermath phase, a party still aggrieved (due to an adverse outcome on an issue) may elect to meet with the Trustee of the land trust or her representative, likely a member of the community, to discuss the terms under which the griever will sell back to the Trustee her ownership interest in the community. This meeting does not address the merits of the disputants’ positions in the now-resolved dispute, nor the decision of the arbitrator. The sole issue is allowing the griever the opportunity to depart the community – hopefully with some dignity – since the non-prevailing person feels unable to continue her daily interactions with her former adversary (ies) or other persons aligned with the adversary’s viewpoint in the recently-resolved dispute. There would need to be a time limit upon the exercise of this prerogative by the grieving party. (Whether the Trustee would be bound by the same time limit is a decision point; if a disgruntled community dweller spends all her time “poisoning the community well,” this might be form the basis for the Trustee’s requesting purchase of the griever’s property interest for the sake of deescalating conflict.) This is a meeting for economic discussions only pertaining to the value of the griever’s property interest and the terms and timing of that interests’ acquisition by the Trustee.

Above, I chucked in a reference to a land trust. In a future post, I’ll address that and other possible models of co-housing ownership that are pragmatic, not utopian.


Tuesday, December 1, 2009

Co-Housing, Part 4: Matters of Sharing

If less is more, than what can the co-housing dweller shed in the way of individually-controlled amenities? Take this inventory: How would you survive, if you had to share some of these with your neighbors, while getting something of value in return? Imagine sacrificing exclusive control of these items of luxury:

Swimming pool

Recreation room

3-Vehicle Garage

Boundary walls

Storage closet

Front lawn


Any reason an owner has to have a 20 X 40 foot pool all his/her own? Surely it isn’t a burning desire to sweep/brush/resurface cool deck/chemically treat the soup. Of course, privacy is lost when you have to share, unless you alone among the inhabitants swims at middle of the night-type hours. But who in a conventional single family subdivision demands, or feels comfortable, skinny-dipping in their private yards today? Common green spaces save on gas or electricity (grass/shrubbery maintenance power), water and perhaps fertilizer, compared to segregating their use on a per-unit basis. Cement driveways leading to each garage or dwelling entrance add little to the aesthetic experience of a development. Garages have become storage units in their own right, and they add building mass in a project – so consider this: does every owner need a 2-3 car garage? If storage units can be aggregated in a single building in a co-housing project, garages can resume the scale they occupied in the 1950s – a “side” building, rather than a bookend rivaling the mass of the main structure. In fact, the need for multi-car garages may be impacted by aggregating parking areas in co-housing development.

What kind of recreation facilities can be aggregated in co-housing environments? This hardly is new from the perspective of multifamily or attached housing developments, but why does the concept need to be uniquely a trait of attached housing? A multi-purpose building, with flexible design and ample storage space incorporated in its design, can be used alternatively for meetings, receptions and parties, card games, physical workouts, crafts, fire – pits and barbeque islands, and manual-arts workshops – even, perhaps, day-care/child-sitting (why would you prefer leaving your child at the school campus instead of inside your community, unless you don’t like the folks in your community?). The roof of the structure could be incorporated into the community garden space or solar power collection points for the project, and the structure, like the pool and the storage unit building (and so on) could be maintained by a single owner with the accompanying economies of scale.

I suspect most Americans today use much of our interior living space for storage of personal effects, or “stuff.” Achieving efficiencies in living space invites adoption of an attitude of inventorying our personal property requirements, and possibly shedding some less useful trappings of our affluence. My hunch is that this is related to reducing our familial carbon footprint.