Author: HOAGOV

"The Voice for HOA Constitutionality". I have been a long-term homeowner rights authority, advocate and author of "The HOA-Land Nation Within America" (2019) and" Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

Media fails 1st Amendment free HOA speech

The media has failed its First Amendment prerogative of protected free speech. The Founding Fathers well understood the need for an informed citizenry for a healthy democracy and made free speech the 1st Amendment. However, America has become divided and the courts, including the Supreme Court, have adopted a policy that biased, personal agenda speech is OK because America has many channels for opposing speech. For example, FOX  News and MSNBC.

But the media has silenced the opposing views of HOA members themselves.

The Supreme Court (New York Times Co. v. Sullivan (1964),  with respect to newspaper articles, held:

“In the case of the newspaper that published inaccurate information, that form of speech would not be protected by the First Amendment if the newspaper published falsehoods knowingly and purposefully. . . . The Supreme Court ruled that the newspaper was constitutionally protected in this instance, despite the false allegations, since the newspaper did not knowingly and recklessly publish the inaccuracies.”

In response to a call for a media contact committee by HRLNG (FB) I wrote today:

“This has been a long-neglected point of power for advocates, realizing that the media is part of what I’ve designated as, “the unspoken alliance of NO HOA negative stories.” Ask yourself, recalling all the TV anchors telling you that they ask hard questions, they get to the facts, etc. yet nothing bad about HOAs that amount to substantial issues. Yes, they talk about this incident and that incident, but substantive issues go ignored. This must be the substance of your approach! Example: NAR and all state chapters claim they are here for you the home buyer and you can trust your Realtor (This term is the NAR members only). BUT HOA??? What’s that??

“The Homes Association Handbook, the 1964 “bible” for HOA-Land was supported by that version of NAR. AARP had some articles but no lobbying for its age 50+, members. Why not? This committee must not be afraid to ask these hard questions. What do you have to lose? They did very little for HOA reforms. CHALLENGE THEM and ask hard questions in pursuit of the truth!”

The Art of War and HOA Reforms War #1

While HOA reforms require new legislation in every state to restore lost rights and freedoms resulting from the adhesion, authoritarian CC&Rs “contract,” advocates need to understand that reform activity has moved from a social and political movement to a war against an entrenched enemy.  I have used terms like doing battle,  the enemy, attack, etc. not lightheartedly.

The common quote from The Art of War (the James Clavell version is easy reading), “If you know yourself and your enemy, you need not fear the result of a hundred battles,” is just one of many that are easily applied to any organized civil, contentious movement.  Just like we are facing in our attempts to reform the HOA concept and being faced with opposing forces led by CAI. 

We must all toughen up for success!

I have selected several statements from Chapter VI that can easily be seen as applicable to our efforts.  As a longtime student of history, especially military history, I offer my interpretations.  Alternate interpretations are possible. The numbering reflects the sentence number as used by Lao Tzu.

Chapter VI–

  1. Whoever is first in the field and awaits the coming of the enemy, will be fresh for the fight; whoever is second in the field and has to hasten to battle will arrive exhausted.

2.Therefore, the clever combatant imposes his will on the enemy, but does not allow the enemy’s will to be imposed on him.

5.   Appear at points which the enemy must hasten to defend; march swiftly to places where you are not expected.

[Too often advocates have reacted to the CAI supported bills or positions rather putting their positions and bills on the “table” out first. They then need to catchup and defend against the allegations and not arguing their positions.]

[The following quotes advise the General (leader) to know the enemy — your opponent. Power negotiations is a two-party “game” and knowing the opposing teams’ strengths is important for success.]

10.  You may advance and be absolutely irresistible, if you make for the enemy’s weak points; you may retire and be safe from pursuit if your movements are more rapid than those of the enemy.

        [Taking some action regarding bills or any statements that need to be challenged.]

13.  By discovering the enemy’s dispositions and remaining invisible ourselves, we can keep our forces concentrated, while the enemy’s must be divided.

14.  We can form a single united body, while the enemy must split up into fractions. 

        [A failure of advocates to unite has hurt the reform movement. Each failure to unite allows CAI to boast, “See, they are nothing to be worried about.”  Legislators, like everybody else including lawyers, want to back winners, not losers.]

19.  Knowing the place and the time of the coming battle, we may concentrate from the greatest distances in order to fight.

22. Though the enemy be stronger in numbers, we may prevent him from fighting. Scheme so as to discover his plans and the likelihood of their success.

23.  Force him to reveal himself, so as to find out his vulnerable spots.

     [In summarizing these last 5 statements, advocates need spies, just like our military uses spies and sends out recon units in order to find out what’s happening. Lao Tzu stresses this aspect in his last chapter. With CAI closing ranks and restricting access to its websites, member spies must be recruited.  I did well using spies in my early activist days.]

Why CAI is the Evil Empire

Advocates, the public in general, the media, and especially state legislatures need to understand the power of the miniscule member CAI that has them conned.  CAI dominates the HOA institution, or as I designate the fragmented collection of HOAs, HOA-Land. My initial research was conducted in 2007 and updated 10 years later in 2017.[1]  I summarize my research on the size of CAI and its membership breakdown below.

The research was based on CAI data and the US Census at that time.  To the point, from the 2017 study:

  1. Being concerned about the frequency of fixed ratios found in (A), I came across data from the CAI Indiana chapter for 2015 and 2016.[2] The percent ‘volunteers’ per HOA for both years was 32.7% and 32.8%, respectively. Very consistent.
  1. Of the 69 M people in HOAs, CAI membership, at most, consists of a miniscule .05% (.00048).
  1. Of the 33,000 CAI members, a minority of some 10,800 are ‘volunteers’ and not attorneys or managers.
  1. ‘Volunteers’ (CAVL) represent a miniscule .016% (.00016) of HOA members.

In contrast, AARP is a tremendous national powerhouse lobbyist representing, as reported in the 2014 WSJ article, some 37.8 million members.   In contrast, 2010 AARP states membership of 35,700,000, and that’s  36% of the 50 plus population based on the US Census  estimate.

Analyzing CAI’s membership and governing Board of Trustees structure revealed  HOA “volunteers” are in the minority. “That’s about 14% representation by homeowners on the CAI governing body whose membership consists of 60% homeowner “volunteers.”[3]

So, who’s afraid of Virginia Wolf?  We should be!  Look what this miniscule minority managed to achieve over the years!  Please understand, though, CAI is vulnerable and has made adjustments in the past based on published criticisms by advocates.  We must not be afraid to call it what it is, using concrete documents and especially CAI’s own words.

FYI — Outstanding is a complaint filed with the antitrust division of the DOJ alleging that CAI is a monopoly.[4]

References

[1] See CAI miniscule minority dominates public policy (2007); CAI 2016 Factbook: looking into the ‘facts’.

[2] CAI Indiana chapter document.

[3] Who controls CAI and its 50 state HOA lobbying committees? (2012).

[4]  See The need to regulate CAI monopoly. (2023).

 

Decl. of Indep. from HOA government — 2000

At this time when advocates are urging homeowners to present reform bills to their legislature, this earlier post of mine revealed the problem dealing with the legislature from the very beginning.  This 2014 repost refers to my appearance before the Arizona HOA Hearing committee in 2000, which also appeared in Robert Nelson’s book (p. 102) published by the Urban Institute Press.   

****

“In 2000, as a naïve and newbie to the politics at state legislatures, Arizona in particular, I addressed the HOA Study Committee on September 7th (3rd such meeting of unfulfilled 7) and submitted a statement titled, “HOMEOWNER’S DECLARATION OF INDEPENDENCE  from homeowner association governments.”  In it I quoted parts of the Decl. of Indep. And informed the committee that I had hoped that these hearings would bring forth a list of grievances for which homeowners were seeking redress. 

[In 2000 I testified – – -]

“And as in those times of 1776, a small, principled and dedicated group of citizens are seeking a redress of their grievances. They first looked to the existing government, the HOA Board, and failing to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association controlling document, the CC&Rs.

“Mr. Chairman, ladies and gentlemen of the Committee, at this time I had hoped that the citizens of Arizona would be able to present and enumerate their long list of abuses, and solutions to these abuses, similar to as is found enumerated in the Declaration of Independence, without the interference and obstruction by elements of these ‘oppressive governments.’  I see that this will not be the case.

“The people of Arizona only wish to be able to present their case before this Committee in a fair and just manner. However, sadly I feel that, because of the composition of the committee, the homeowners are actually being placed on trial; that they are being asked to justify their grievances before their oppressors” [CAI].

****

Today, I think it would be helpful to adopt my statement and add those grievances that you feel need to be solved, and submit the entire package to your legislature and the media.  It would be your declaration from HOA governments, your petition for redress. Of course, the more signatures you have the better. 

Where have all the HOA constitutional lawyers gone?

Many of you who are interested in the hidden truth about HOA-Land are probably aware of the AARP report on member bill of rights written by David Kahane in 2006. You are probably unaware of the 2006 AARP amicus curiae brief filed in favor of the Twin Rivers, NJ homeowners.[i] 

This landmark brief references Evan McKenzie, the Hannaman Report,[ii] CAI’s Wayne Hyatt  (former president and designer of many governing documents especially for Del Webb properties),[iii] a 1989 Intergovernmental study on HOA private governments, and the Restatement Law: Servitudes.  Co-attorney on the brief was Steven Siegel who wrote several legal journal articles on HOA constitutionality (1998 and 2008).[iv]

Where have all our lawyers gone? Long time passing. 
Where have all our lawyers gone?  Long time ago. 
Where have all our lawyers gone?  C A I beat them everyone.

Oh, when will we ever learn?  Oh, when will we ever learn?[v]

I’ve always found this very troublesome. They have the credentials; we don’t!  Complaining and shouting, We was robbed; this ain’t fair; this is not right; I have rights falls on deaf ears at the legislatures. Advocates have failed to make the case for the existence of a nationwide problem where legislatures permit the denial of homeowners’ fundamental and constitutional rights and freedoms, privileges, and immunities.  And the courts look the other way for the most part. 

And when reform bills of substance do make it into law, homeowners for the most part still remain silent and ignore the laws that give them fighting powers – laws passed recently in California, Nevada, Arizona, North Carolina, New Jersey, and Washington state.

References

[i] AARP_amicus.pdf

[ii] See Rutgers Panel on Homeowner Association problems (pvtgov.org).

[iii] To be or not to be a mini or quasi government? Hyatt said ‘yes’.

[iv] Steven Siegel, “The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty years After Marsh v. Alabama,” Wm & Mary Bill of Rights J., Vol. 6, Issue 2 (1998). And The Twin Rivers Case: Of Homeowners Associations, Free Speech Rights and Privatized Mini-Governments, Paula A. Franzese and Steven Siegel, 5 Rutgers J.L. & Pub. Pol’y 630 (2008).  Part of the issue on Homeowner Associations: Problems and Solutions.

[v] Paraphrase Where Have All the Flowers Gone, Peter, Paul and Mary.