I have classified two levels of HOA reform legislation that are needed to bring justice to homeowners: systemic and operational.
By “systemic” I mean inherent in the structure and legal model of HOA governance, which involves constitutional issues concerning the validity of the declarations and the pro-HOA state laws. The controversy focuses on the defenses of the HOA legal scheme, such as, private contract interference and “agreement to be bound.” The contractual defense denies the application of the Constitution and the surrender and waiver of any rights that members claim to be denied. The agreement defense says the private contract was validity and legally agreed to by the home buyer, even though contract law 101 is usurped by the equitable servitudes doctrine.
By “operational” I am referring to the management and operation of the day-to-day HOA that is regulated by existing pro-HOA laws and the adhesion CC&Rs. Reforms at this level are, for the most part, attempts to restore rights and privileges denied by the constitutional defenses mention in the above paragraph. This defense focuses on the law is the law and any concerns for fair, just and equitable treatment are not addressed in any of the states or governing documents, and therefor are irrelevant.
The purposes and aims in the Declaration have no bearing on the purposes and aims found in the Preamble to the Constitution.
It should be obvious that the operational reforms are limited by the existing failure to achieve constitutional reforms. Addressing the broader constitutional issues will greatly help the operational problems that concern most homeowners.
HOA Constitutional Government 