CAI asks why the government won’t let HOAs do as they please

 Under the slow awakening of state legislators across the country, Community Associations Institute (CAI) finds it necessary to remind the faithful followers and public policy makers of the grand and immense contributions that HOAs make toward our society and system of government[1]. So it claims in its “Why HOAs?” article.

 

In article’s second paragraph the writer recites the history of the “master” land owner who sets forth the use and control over the land forever in what we know as covenants running with the land, or CC&Rs.  He then speaks of the value of such CC&Rs, in his next paragraph, bypassing any mention of duly elected government of the homeowners and democratic functions of the HOA. No, you get the HOA constitution from the profit-seeking developer and his attorney written, almost boiler-plate, CC&Rs. So much for a democratic government.

 

Holmgren, the writer, continues to properly inform the reader that local governments like this – a privatization of government services onto you, the homeowner. But, there is one major problem not mentioned. He does not mention that  the protections of your rights and freedoms under the Constitution does not apply to these private contractual HOAs. No, it’s definitely not mentioned, not even hinted.

 

In an abrupt about face, Holmgren then speaks of “why government is so rarely a friend to homeowners associations,” and “they [government] believe homeowners associations are an untoward restriction on individual freedom.”   The issue is one of power – the writer, following CAI policy, firmly believes that HOAs are indeed independent principalities not to be regulated as any other entity, especially as a private government.  He plays to the simplistic dogma that the people can do anything they like, and regulation to protect one faction against the evils of another doesn’t apply to these principalities.

 

The writer then directly attacks the legislatures across the country that have over the years enacted pro-HOA laws. Holmgren blames the government as being opposed to HOAs. Did he fall off a turnip truck and hit his head? In Arizona where he performs, and as reflected in the pro-HOAs laws enacted in other states, my data over the past 8 years show only three substantive bills (foreclosure, due process, control of public streets, etc) out of thirteen that were put into law, and one was declared unconstitutional in a suit brought by the Carpenter Hazlewood law firm.

 

While CAI argues before the legislatures about freedom of local control and the rule of the majority, it seeks top-down imposition of laws upon the HOA homeowners, without their consent and to their detriment. It has now admitted that HOAs are mini-governments, so now it’s OK to interfere with a government contract. And that the right of a minority to change the HOA “constitution”, the CC&Rs, is consistent with democratic government.[2] It appears to be an effort to control the HOA board cliques with their “expert” advice.

 

In spite of its alleged argument with the legislature (carefully called “government”), CAI figures that these draconian undemocratic propositions will be accepted by the legislators in view of their alleged necessity and compelling justification to protect HOAs.  Propositions denying homeowners the equal protection of the laws and due process protections.  I guess CAI, a third-party interloper that seeks to alter the private contract between the HOA and the homeowner, are feeling the threat of a loss of their ability to show a value to HOAs.  And to protect their income stream.

 

This is a sad case of “the tail wagging the dog.” It is sad because there exists an alternative legal scheme for those individuals who seek the benefits of planned communities and condos, who with full knowledge of all the factors relating to HOA lifestyles and without duress, so freely choose. This alternative, existing in all states today[3], can provide these benefits along with the protections of their rights, freedoms, privileges and immunities under the 14^th Amendment and every state’s Declaration of Rights, which do not exist under the HOA authoritarian regime.

 

References

1. CAI Carpenter Hazlewood Delgado & Wood enewsletter of 3/11/11, Why HOAS?, Mark Holmgren.
2. See video of CAI lobbyist’s statement before the Arizona House Government Committee meeting of 2/15/11 on HB 2441. (http://azleg.granicus.com/ViewPublisher.php?view_id=13, scroll down to entry link).
3. See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.