In keeping with the highly controversial question in Washington of upholding the US Constitution as the supreme law of the land, advocates and HOA homeowners should look to the highly controversial question of the constitutionality of the HOA legal scheme. While much has been said on both sides, most of you including the BODs of HOAs who should know better, do not have all the facts regarding the true position of the national HOA lobbying organization, Community Association Institute (CAI). It actively lobbies, uses propaganda to advance its personal agenda, promotes, supports and protects this legal structure and scheme. Let’s take a closer look at what CAI stands for.
As a result of repeated arguments of the unconstitutionality of the HOA legal scheme, CAI was forced to address the question of HOA private governments operating outside the Constitution. In its CAI Press Release (Oct. 7, 2015)[1] CAI attempted to defend its secessionist position with reference to its amicus brief advice to the NJ Appellate Court in 2006[2] (890 A.2d 947 (App. Div. 2006)), which stated in relevant part:
In the context of community associations, the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) raises the likelihood that judicial intervention will become the norm . . . . (p. 21).
The business judgment rule is the correct standard for reviewing community association board decisions. (p. 4)
In addition, the press release goes on to say (emphasis added),
Contrary to conventional wisdom, Americans do not waive their constitutional rights when they move into a community association. In fact, courts have found that community association residents, by enacting reasonable rules for their own communities, are actually exercising their constitutional rights of association, contract, expression and assembly.
I posted a rebuttal, “CAI maintains HOAs do not violate the Constitution.”[i] Suffice it to say that the above says it all. In short, 1) contrary to the above, courts have upheld waiver or surrender of rights, even asserting implied surrenders and 2) CAI avoids addressing the questions of a valid consent to be bound or agree, the criteria to pass judicial scrutiny regarding the constitutionality of laws and contracts. Like with Trump, there is no defense the controversial claims of mini-government and quasi-government, but just questionable assertions.
It becomes imperative to draw attention of HOA boards to CAI’s strong, misguided influence over state legislatures and the courts to restore the protection of the Constitution to homeowners living in HOAs. The boards have a fiduciary duty to the membership who are still citizens of the US. HOA boards must recognize CAI’s secessionist position that has distorted the valid and worthwhile purposes and objectives of the HOA model, and take steps to divest themselves of its influence that serves CAI’s personal agenda.
References
[1] Homeowner Rights and the U.S. Constitution, “CAI News Release” – online (Oct. 2015).
[2] CBTR v. Twin Rivers, 890 A.2d 947, (NJ Super. App. Div. 2006)),
[3] CAI maintains HOAs are protected by and do not violate the Constitution — not so! George K. Staropoli, HOA Constitutional Government (2015).
HOA Constitutional Government 
Well your insinuations and substantiated allegations about the illegality and unconstitutionality of the HOA creature has now come to a head…is it constitutional or is not?
If not, as a matter of law, it should be made manifest in a civil law suit in Federal District Court.
Don’t feast the lawyers of the CAI because the rule of law will prevail unless the judiciary has been bought by bribery.
Your documented arguments exposing HOA corruption and illegality should help dismantle the HOA criminal organization as you have demonstrated for the past fifteen years.
You should have confidence to move forward to file the lawsuit to get rid of this plague on the American landscape.
Just keep us posted on when it will happen and post the action so we can enjoy the fireworks.
It will make known if the HOA is lawful or if it like we all know a fraud upon the American society.
Barry
Sent from my iPhone
I appreciate your frank and realistic assessment. Moving ahead to federal court brings forth the ststement by OJ’s lawyer, Johnny Cochran: “Innocent until proven broke. And the color of justice is green.” I am broke, but not wrong.
Let’s see what will happen with Trump’s trial. If removed then there is hope of a trickle down expression of conscience by state legislators to uphold the Constitution with respect to HOAs. If not, then all will be unproductive as Frank Askin, attorney for the homeowners in the 2005 NJ Twin Rivers free speech case believed. I had asked Frank why he chose to sue against the NJ Constitution rather than the US Constiution. He answered back to the effect that the suit would not be readily received at that time.
So I wait for the right opportunity and time. Meanwhile I will focus on the conscience of HOA BODs to do what’s right in face of CAI’s opposition to Constitutional protections for homeowners. It will be important not to scare the members that the HOA will be destroyed or killed, a fear tactic by CAI, but can exist under a democratic government as I’ve written elsewhere.