Author: gks256

Two distinct levels for HOA legislation

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.

Are HOA state actors created by statutory use of shall/may?

The use of the words “shall” and “may” have generally accepted meanings in state laws and statutes.[1]  Their use in bills and laws relating to HOA-Land raises the highly controversial question of: Are HOAs state actors?  Wayne Hyatt — former CAI president – wrote in 1976 that HOAs were mini-governments.[2]  In general, a state actor is an entity that is functioning as “an arm of the state” or “in place of the state.”[3]  Does the use of “shall” that is defined as “mandatory” make the HOA an arm of the state?

In sum, the US Supreme Court criteria for classification of a state actor can be found in Brentwood:[4]

  1.  From the State’s exercise of “coercive power,”
  2. when the State provides “significant encouragement, either overt or covert,”
  3. when a private actor operates as a “willful participant in joint activity with the State or its agents
  4. when it is controlled by an “agency of the State,”
  5. when it has been delegated a public function by the State
  6. when it is “entwined with governmental policies,” or
  7. when government is “entwined in [its] management or control.”

In regard to the institutionalization of HOAs, or as I refer to it, HOA-Land, the above tests 1 – 3, and 5 -6 would provide clear and convincing evidence that the policies of state legislatures, as demonstrated by the enacted pro-HOA laws, have created HOAs as state actors who willingly undertake state actions.  Review your state laws for the use of “shall” and the consequences of that mandate on your individual property rights.

***

The pro-HOA laws enacted by state legislators, aside from other constitutional concerns with respect to the 14th Amendment protections of the equal protection of the law and valid due process, use “may” and “shall” that are permissive and mandatory obligations upon HOAs (and condos).  “May” is commonly found as “the board may set the time of the annual meeting,” or “may charge . . .”  The overlooked impact and consequence of this word is to legalize activities and actions that were all-to-fore not legal rights granted to the HOA.

They are now made a legal activity, if your BOD so chooses.   Prior to a statute using “may” the action or activity had to be granted by the governing documents.  If so, by including it in a statute lends “officialness” to the action, and a very difficult process to declare the statute invalid.  It protects the governing documents if so permitted.

The right granted by the use of “may” to HOA boards (BOD) to fine or monetarily penalize members and filing a lien with the right to foreclose, for example, makes it a legal action not granted to other nonprofit organizations.  Can you imagine PBS or United Fund placing a lien on your failure to not pay your pledge to support their existence? No way!  Why allow HOAs this legal right?  Which of the above criteria does it violate?

***

Now the heart of the matter focuses on the use of “shall” that is a mandatory order to the HOA to act on behalf of the state —  fine those members and collect costs including attorney fees, etc. Not only is it a legal requirement for the HOA to act as ordered, the BOD has no choice, no discretion to do otherwise, nor can the members reject a potential amendment or rule change. So much for democracy at work in HOA-Land!  Which of the above SC criteria does it violate?

It is well beyond the time for those public interest nonprofits touting their support for the Constitution and democratic values to get involved and stop this disgraceful and unconscionable legislation.  Stop the legislation that coerces, encourages, and supports private government, authoritarian HOAs.  Legislation that advances the view that the HOA “constitution” is a better deal than the 232-year-old US Constitution.  Shameful!

***

The American experiment in democracy, as the youthful America was described by Alexis de Tocqueville[5], is being subverted by the HOA legal scheme supported by elected officials and academics parading as the nouveau Philosopher-Kings preaching to the elected government leadership.  In 2009 I commented:

“I explore this failure of the American Experiment and the rise of independent HOA principalities in Establishing the New America of independent HOA principalities (see New America).”

Notes

[1] See “Legislative shall,” paper with quotes from Yale Law Journal and the Arizona bill drafting manual as a specific example.

[2] Read his 1976 statement in To be or not to be a mini or quasi government? Hyatt said ‘yes’.” (2015). Wayne Hyatt was a prominent figure in the promotion of HOA-Land as well as an important person in creating CAI in 1973, serving as its second president. I believe he had strong influence in drafting the Del Webb Declarations still in use today.

[3] In general. see arguments for state actors: HOA Case History: state actors or mini/quasi government (2011); Do state HOA Statutes Establish HOAs as State Actors? (2012); Judicial error regarding HOAs as mini-governments and state actors (2015), “This commentary, somewhat technical at times, demonstrates the failure of the courts to address the fundamental issues that HOAs are mini-governments, and that by the collective functions and actions of HOAs there is clear and convincing evidence to make the case that they are indeed state actors. The whole is greater than the sum of its parts.”

[4] Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001).

[5] Democracy in America, Alexis de Tocqueville (Vol. 1, 1832; Vol. 2 1840). Printed by Alfred A. Knopf (1972).

HOA advocates must become Paladins

 

 

We need more homeowner rights advocates speaking with a firm and emphatic voice to the legislators, to the media and to the public that we are knowledgeable, informed and intelligent people not to be toyed with!

We must become Paladins, warriors, especially before the state legislative sessions end. The various definitions of this term center on:

“Anyone who fights hard for something they believe in can be called a paladin; While the French word paladin means warrior . . . . As time went on, its meaning grew to include any chivalrous or heroic person; The basic principles defining a Paladin are to defend and protect the innocent and uphold the law . . . . They would defend truth and justice against the unending evil approaches.”

As Paladins we can proudly stand up to the self-serving, political agendas of too many legislators.

History: Paladins were initially known as the Twelve Peers of French Emperor Charlemagne who also had the title of Holy Roman Emperor (8th century AD).  If you are familiar with the French epic poem, Chanson de Roland (“Song of Roland”), which I learned in my French class, Roland was  Paladin.

“We must make the injustice visible” Mahatma Gandhi

HOA social dynamics — “freedom of mind” pt. 2

HOA social dynamics and the loss of “freedom of mind”

Continued from Part 1

By: George K. Staropoli, March 18, 2019

Part 2.

The best explanation I’ve found, and reinforced after some 7 years, for this illogical mass conduct by HOA members can be found in my 2012 six-page paper re-titled as, HOA social dynamics and the loss of “freedom of mind.”[i]  The following is my Conclusion.

In the Milgram[ii] and Stanford Prison[iii] Experiments researchers explored what evil men can and will do to others 1) under repeated pressure from authority figures to follow the rules, and 2) in an environment where one is expected to act in accordance to the  roles of the community.  The researchers found that basically good people will indeed do harm, even do severe harm, to others.  The conditions and factors present in these experiments exist within the HOA community, and the harm being done to others in these HOAs is well documented in the media and in the courts.

 The authoritarian insistence on enforcing complete obedience to the CC&RS, as repeatedly impressed on HOA boards by their attorneys, is well documented. The compliance by the directors and officers with these pressures for enforcement is well documented.   The blind obedience, apathy, and passivity  to authority by HOA members – the “prisoners” — who sign and agree to provisions blatantly detrimental to their interests, is well documented.  The adoption of the roles demanded of them by the system  and by the situation —  state laws and the court opinions, the adhesion CC&Rs and governing documents, and the lack of effective recourse — is well documented.  

The numerous “educational” seminars taught  by the attorneys and managers, many of which are sponsored by state and local governments,  serve not to fully inform but to indoctrinate the members into roles of obedience  and passivity, is well documented.  Good people doing bad things or remaining silent in the midst of wrongful acts and actions by the HOA is well documented.

State governments, the legislatures,  cannot allow HOAs to continue to  run amuck and to  freely violate the laws and their contractual obligations without legitimate and necessary constraints holding them accountable for the harm that they do to others.  BODs are getting a free ride from their state legislature.  

State legislatures and town/city governments must stop supporting the propagandists responsible for creating this unhealthy attitude.  They must immediately conduct a valid and independent vetting of the principal party that conducts their educational seminars and conferences that advance their misleading party line. A fully informed citizenry within HOA subdivisions is a necessity for democracy to function and protect individual rights and freedoms.

References

[i] See Social dynamics freedom of mind.pdf (2019), footnote 1.

[ii] Obedience to Authority, Stanley Milgram, Harper Perennial (1720) (1983).

[iii] The Lucifer Effect: Understanding How Good People Turn Evil, Philip Zimbardo, Random House (2008).  Made into a movie in 2015, The Stanford Prison Experiment. 

Continue reading HOA social dynamics — “freedom of mind” pt. 2

ACLU on HOA free speech rights & Facebook

ACLU raised the following question:

“One of the core purposes of the First Amendment is to allow people, regardless of their views, to hold the government accountable through expression. So, if your elected representative has an official Facebook page where she invites comments, can she block you from commenting because you criticize her work?[I]”

By extension, this same question can be asked of de facto private government HOAs and their elected officials.

In Davison v. Randall,[ii] Defendant Randall is a municipal representative who maintained a Facebook page related to her government activities, which was open to comments.  Plaintiff Davison’s critical comments were blocked by Randall, and so he brought this first amendment suit.  ACLU wrote:

“On Monday, the Fourth Circuit Court of Appeals ruled that the interactive portion of a public official’s Face book page is a “public forum,” so an official cannot block people from it because of the opinions they hold.

“Indeed, the right to criticize the government is at the heart of the First Amendment. The court specifically recognized blocking as infringing on that right, noting that blocking someone in order to silence criticism of government work is itself evidence of government action.”

(ACLU, n. i).

By extension, this decision by the circuit court can be applied to the de facto private government HOAs and their elected officials.   Very importantly and on point, the NJ Supreme Court in Mazdabrook v. Khan[iii] held in favor of HOA  homeowner free speech rights regarding signs.[iv]

“Moreover, [the Plaintiff] did not waive his constitutional right to free speech. To be valid, waivers must be knowing, intelligent, and voluntary, and a waiver of constitutional rights in any context must, at the very least, be clear. Khan was not asked to waive his free speech rights; he was asked — by different rules in three documents — to waive the right to post signs before getting Board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights. . . . . Instead, the exercise of those rights can be subject to reasonable time, place, and manner restrictions. Finally, covenants that unreasonably restrict speech may be declared unenforceable as a matter of public policy.  (P. 5).

“The proliferation of residential communities with standard agreements that restrict free speech would violate the fundamental free speech values espoused in our Constitution.”

As is quite prominent, this violation is ripe in all those rogue HOA boards of directors because state legislatures have given HOAs a carte blanche, hands off right to function outside constitutional protections. In short, HOAs function as independent principalities within America![v]

 

References

[i] Court Rules Public Officials Can’t Block Critics on Facebook, Vera Eidelman, ACLU (2019). Reference to Davison v. Randall. See infra, n. ii. ACLU filed an amicus brief.

[ii] Davison v. Randall, Nos. 17-2002 & 17-2003 (4th Cir. 2019, VA).

[iii] Mazdabrook v. Khan, 46 A.3d 507 (2012).  Note that the NJ ACLU had filed an amicus brief by Frank Askin.

[iv] See “CC&Rs and waivers of constitutional rights in HOA-Land.”

[v] See Establishing the New America of Independent HOA Principalities, Amazon, ISBN-13: 978-0974448831, ISBN-10: 0974448834. (2008).