Homeowners Associations: the Second American Experiment

 

Historians have referred to the American Revolution as the “American Experiment”,[i] because it introduced a modern, as of that time, form of a democratic republic.  Would such a government based on the principles, beliefs and values of our Founding fathers survive the passage of time? 

 

The new constitutional government met for the first time in 1789, the same year that saw another experiment in democracy, this time in Europe: the French Revolution.  The French Revolution ended with the establishment of the Napoleonic Empire in 1804, and with further bloodshed for over 11 more years during the Napoleonic Wars.  In contrast, the American Experiment has endured for some 219 years and has proven to be quite successful.

 

However, over the past century there has been a slow but steady erosion of the American Experiment.  We have witnessed the Supreme Court view the Constitution, that contract between the people and the federal government, as a “living document” subject to its interpretations, such as adding “privacy’ as a new fundamental right[ii], ignoring the Ninth Amendment,[iii] and redefining the meaning of “public use” to mean “public purpose”.[iv] 

 

In 1964, with the publication of the Homes Association Handbook[v], Technical Bulletin #50, by the Urban Land Institute, and with the support and funding of private interests and federal agencies, the birth of the Second American Experiment went largely unnoticed.  Under an unspoken alliance, the public was not informed of this experiment in the privatization of government.  The special interest promoters have described this second Experiment, boastfully, not as a revolution, but as “The Emergence and Acceptance of a Quiet Innovation in Housing”.[vi]  This second experiment was not a strengthening of democracy, but one that promoted and established, with the support and cooperation of the state legislatures, private, contractual, authoritarian government regimes.

 

The profound impact that this Second American Experiment has had, and continues to have, on public policy goes unnoticed by the public at large.    Our legislators believe in this experiment, and so do special interests and the big media corporations that have failed to inform the public.  This impact on public policy is reflected in the following recent incidents. 

 

1.      In California, a rewrite of its HOA laws contains an empty chapter for a homeowners’ bill of rights. 

 

2.      In New Jersey, its Supreme Court believes that the business judgment rule is sufficient to protect homeowners’ fundamental rights. 

 

3.      In Arizona, the only two important HOA reform bills that would provide substantive due process protections were either killed or delayed by the actions of the Rules Committee chairmen. 

 

4.      The common law authority on covenants and homeowners associations, The Restatement of Laws (Third), Property: Servitudes, states that “The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, not of constitutional law.”

 

This second experiment is creating and establishing a New America, an America quite distinct and contrary to the America of our Founding Fathers. 

 
 

 

 

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