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USA HR-4969
On Monday, August 18, 2014 2:45:35 PM UTC-5, Phil Kane wrote:
I would never advise a client to knowingly violate a law or breach a contract obligation on the basis "they'll never know the difference". No smart lawyer would tell his client that it was OK to proceed to violate the terms of a contract. If I was advising somebody, I would say the same as you and add that they might want to get legal advice from an attorney before doing anything rash. Whether such law or provision is "reasonable" or not is a different matter. In this case, I don't think my "it's unreasonable" claim would carry much weight. If we got to the imposition of a fine stage for this, I'd be unlikely to prevail in court. I know that. One thing to consider about whether "they" will catch you or not - it depends on how much money the HOA wants to invest up front (they can recover the costs of enforcement after litigation) and the companion reason - depends on how bad they want to get you. The process the HOA usually goes though is to 1. send a warning letter giving me 30 days to "fix" any problems. 2. Sending the "official" notice that they intend to fine me, setting the "final" deadline. 3. Then, they can start assessment of fines and/or fix the problem themselves at my expense. All this costs them $$ up front as the management company bills them at each stage. My general plan is to comply with all warnings I receive within the specified time. To this end, my current plan is to put up antennas I don't mind taking down and doing my best to not draw too much attention to what I'm doing. This means using "natural" supports (trees, house, fences etc) to hold up some cheap wire and trying to keep things out of sight as much as I can. Where I am knowingly violating the terms of the CC&R's (BTW something that is open to some debate as the Antenna policy is not in the deed restrictions directly, but in a separate Architectural document which has not actually been attached to my deed) I am not taking much of a risk, unless they decide to abandon their standard process for me and go straight to imposing fines without first requesting that I comply. Firms like ours and our competitors are in the business of determining whether antennas are active and on what frequencies. With modern technology there is little need for the extended "stakeouts" of yore. I'd like to hear about the equipment used for what used to take a physical presence to figure out. |
#2
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USA HR-4969
On 8/19/2014 6:28 AM, KC4UAI wrote:
Where I am knowingly violating the terms of the CC&R's Ok, I'm a little unclear on the concept here. What is your basis for knowing violating the terms on a contract you signed? -- Jeff-1.0 wa6fwi http://www.foxsmercantile.com |
#3
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USA HR-4969
On Tue, 19 Aug 2014 17:28:56 EDT, Foxs Mercantile
wrote: Ok, I'm a little unclear on the concept here. What is your basis for knowing violating the terms on a contract you signed? For a contract term to be valid and enforceable, it must, among other things, be clear, be reasonable, not contrary to public policy, and the contract cannot be a "contract of adhesion" where the affected party has no other choice but to accept the terms rather than negotiate them. Does that sound familiar? 73 de K2ASP - Phil Kane ARRL Volunteer Counsel |
#4
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USA HR-4969
On Tue, 19 Aug 2014 07:28:35 EDT, KC4UAI wrote:
The process the HOA usually goes though is to 1. send a warning letter giving me 30 days to "fix" any problems. 2. Sending the "official" notice that they intend to fine me, setting the "final" deadline. 3. Then, they can start assessment of fines and/or fix the problem themselves at my expense. All this costs them $$ up front as the management company bills them at each stage. I am very familiar with this process because, inter alia, my sister-in-law's "s.o." is an attorney that represents HOAs in collecting those fines. We have had interesting discussions. In California at one time, the burden was on the HOA to show that the restriction was reasonable. While we were in the process of taking a significant CC&R case to retrial (Hotz v Rich, San Mateo Country, CA 1993) the California Supreme Court shifted the burden to the respondent (in this case, Jimmy Rich, the ham operator) to show that the restriction was "unreasonable". We tried very hard to do that because the restriction was totally unreasonable but the judge was unimpressed, and Jimmy had to take his 75 foot crank-up tower down. This in spite of the (pro bono) work of four attorneys, a professor of electromagnetic at a major university, and several neighbors and dignitaries testifying to the need for such an antenna height. When one starts with court trials, it's a crapshoot. 73 de K2ASP - Phil Kane ARRL Volunteer Counsel |
#5
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USA HR-4969
On 8/20/2014 7:22 AM, Phil Kane wrote:
the California Supreme Court shifted the burden to the respondent (in this case, Jimmy Rich, the ham operator) to show that the restriction was "unreasonable". We tried very hard to do that because the restriction was totally unreasonable but the judge was unimpressed, and Jimmy had to take his 75 foot crank-up tower down. and previously in response to me: For a contract term to be valid and enforceable, it must, among other things, be clear, be reasonable, not contrary to public policy, and the contract cannot be a "contract of adhesion" where the affected party has no other choice but to accept the terms rather than negotiate them. So apparently, that one with the 75 tower was enforceable. This leads back to my original question then, what part of having a FCC grant of license gives amateurs the right to violate the terms of a contract they signed? -- Jeff-1.0 wa6fwi http://www.foxsmercantile.com |
#6
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USA HR-4969
On Wed, 20 Aug 2014 11:29:43 EDT, Foxs Mercantile
wrote: So apparently, that one with the 75 tower was enforceable. The restriction said that no antenna may exceed the height of the one-story building that it is associated with or attached to. That in itself is unreasonable, and we had technical testimony to back it up. Dear Mrs. Hotz had none to refute that. The judge was dumb and blind, but that's another story. This leads back to my original question then, what part of having a FCC grant of license gives amateurs the right to violate the terms of a contract they signed? A contract of adhesion has a high barrier for enforcement to take place. Note that the justification for PRB-1 and the impending extension to private contracts is the exercise of Federal interest in amateur radio, hence limited pre-emption. We tried to get this under _Shelley_ where the SCOTUS ruled that contract terms that were against public policy were unenforceable no matter if the affected party signed it but the California Court of Appeal sent it back to the Superior Court for trial. That's when the burden shifted. The neighbors couldn't win at the city level, so they had to resort to the CC&Rs of a development that was co-terminus with the city and whose officers were the city council members. They actually passed the hat for this lawsuit after we won at the city level. This nonsense will disappear when the bill becomes law. "Reasonable accommodation" is not total pre-emption. Nothing is stopping any ham from not claiming the benefit of the limited (PRB-1 style) pre-emption. 73 de K2ASP - Phil Kane ARRL Volunteer Counsel |
#7
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USA HR-4969
On 8/20/2014 3:33 PM, Phil Kane wrote:
A contract of adhesion has a high barrier for enforcement to take place. Whether it's enforceable or not isn't the question Phil. The question is what part of an FCC license gives you the right to knowingly violate a contract you signed. -- Jeff-1.0 wa6fwi http://www.foxsmercantile.com |
#8
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USA HR-4969
On Wednesday, August 20, 2014 10:01:19 PM UTC-5, Foxs Mercantile wrote:
Whether it's enforceable or not isn't the question Phil. The question is what part of an FCC license gives you the right to knowingly violate a contract you signed. Which is, in fact, the very logic the FCC used to justify not preempting CC&R's for hams. There isn't any part of your license grant that makes me entitled to break a private contract. It does entitle you to reasonable antennas, which may violate local and state laws, they just said no to the private contracts, at least for Hams. Of course, you can violate that private contract and put up a TV antenna, no license required, and that's by FCC rule. HOWEVER, that's what it is now. If HR 4969 becomes law, then getting an FCC license WILL make parts of some private contracts illegal to enforce, just like the FCC already did for TV reception antennas... -= Bob =- |
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