CAI lobbyist firm espouses HOA secessionist, un-American views

The recent article(1) by the hired-hand, paid, Arizona lobbying organization for the CAI chapter, DeMenna & Associates, contains many of the points that I’ve been arguing relating to the attitudes and views of CAI and die-hard, homeowner association true believers: anti-democratic principles, anti-individual rights, secessionist philosophies, and a corporatism promoting the HOA state above everything else that recalls fascist principles.

The article also contains a strong, but disingenuous, attack on the support by legislators for reforms to the extent that the reader comes away with the feeling that strong efforts by DeMenna & Associates is absolutely necessary to ward off these harmful reforms that seek to destroy HOAs. Talk about self-promotion!

Here are some of the rhetoric and extremist statements made in the DeMenna article, emphasis and commentary added:

[13] bills is a reduction in the amount of harmful or anti-HOA [please read: against the fictitious corporation that is legally independent from its constituent members, whose interest will differ] bills being considered before the Legislature. [Substantive reform bills, some 3 bills over 10 years, attempt to restore lost individual rights and freedoms taken away by the CAI influenced HOA statutes.]

However, the CAI LAC continues to fight as hard as ever to defeat a number of bills currently moving through the process. . . . . One such bill . . . would cripple the ability of homeowner associations to enforce parking and street restrictions in communities with roadways dedicated to cities and counties. . . . The reality is that a small group of hobbyists [ham radio operators] would like to impose their will upon the majority of their neighbors, compliments of the Arizona State Legislature.

[These bills] are symptomatic of a common problem surrounding most HOA legislation introduced at the Capitol: the Legislature’s continued attempt to interfere with the rights of willing parties to contract. New laws continue to be enacted and imposed upon the majority of homeowners because of the desires of a small and vocal minority.

If CC&Rs were easier to amend, homeowners who desire to change onerous provisions (whether it be parking, HAM radio towers, or acceptable house colors), could attempt to do so at the local level, and the Legislature should not feel obligated to interfere with private contracts between willing [and fully informed?] parties.

Each community’s needs are different and unique . . . . Until this larger concept or true “Power to the People” legislation is actualized, it is likely that we will continue to fight anecdotal, short-sighted, one-size fits all homeowner association legislation at the State Capitol.
[“Anecdotal”? What about fears spread by CAI about HUD not providing loans to HOAs if foreclosure rights are done a way with? Or, that Justice of the Peace courts would be swamped with complaints by homeowners seeking justice and fair trials, even though for years it had argued that these HOA problems were due to just a handful of troublemakers?]

Often, a developer will design communities with narrow roads in exchange for agreements to enforce CC&R parking restrictions on community streets [???] . . . Planned community associations inherit use restrictions from developers who draft the CC&Rs. [I thought these CC&Rs were contractually negotiated by willing and informed buyers.]

I got news for this lobbyist firm. First, in our democratic system of government, minority rights are protected from abuse against more powerful factions. It is an essential requirement of the social contract whereby consent to be bound by public government is given. In other words, majority rule is not without sensible constraints in order for society to function as intended, otherwise lynch mobs and other acts of local anarchy would be the rule of the land.

Second, what is implied here is the public domain argument that living in an HOA is implied consent to be governed, which completely ignores the contractual provisions of the CC&Rs. It ignores other contract law 101 requirements, the most abusive of all is the mere constructive notice doctrine to bind buyers to the CC&Rs and to the surrender of their rights and freedoms. Talk about unconscionable covenants, adhesion contracts, and being contrary to public policy! Funny, while the Restatement of Servitudes sets these tests for valid covenants, it then ignores the reality of the CC&Rs contract.

Third, recognition is given to the imposition of a “constitution”, designed to protect the interests of the Declarant, a profit seeking business, first and foremost — and that includes those covenants to protect the lenders needed by the Declarant to develop the subdivision — with an marked absence of concerns for adherence, as required by all other forms of governance, to the Bill of Rights or Constitution itself. For those with some knowledge, a direct covenant that “the HOA will be subject to and bound by the Constitution as if it were a public entity charted not under corporation law, but municipality law” is a simple statement that will do nicely. Otherwise, as implied and quite emphatically demanded by this article, private parties can establish a New America of independent entities, principalities in effect, that rejects and secedes from our system of government.

As to my arguments that HOAs are fascist based(2) , this article reflects 1) the corporation interests (and their membership national lobbying organization, CAI) to promote and protect the HOA legal scheme by lawyers and management firms that derive their income from being vendors to HOAs, 2) the denial of the individual and his rights and freedoms, 3) the preeminence of the “state”, the HOA, to which all members are expected to conform and owe a duty and obligation to support, first and foremost, and 4) ) the rejection of our democratic system of government. Is this America? Or, is this a New America?

Homeowners and legislators are being confronted with a decision that has the utmost consequences for America: To continue to support the Constitution and its fundamental principles, beliefs and values; or to support secessionist, authoritarian and private HOA governments.

Notes:

[1] “2009 Arizona Legislative Session”, Ryan Anderson,  Community Resource (CAI-AZ Issue 3, 2009).

[2] See, Is CAI seeking HOA – municipality synergies?   HOA Local Government, Sept. 2, 2009 (https://pvtgov.wordpress.com/2009/09/02/is-cai-seeking-hoa-municipality-synergies/).