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.

Constitutional intents and purposes: HOAs vs. America

The Preamble to the US Constitution contains the intentions, purposes, and guiding principles of the Constitution.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The constitutions, commonly known as the CC&Rs or Declaration, of the HOA private government regimes, while not standardized, contain the following intents and purposes:

 

  • All contain: To maintain property values
  • Most contain: to enforce the provisions of the CC&Rs (more commonly found in the powers of the HOA or Board of Directors)
  • Some contain: to promote the general welfare and well-being of the community
  • A few even contain: subject to the US Constitution, which is meaningless, as is currently held, the Constitution does not apply to privately contracted governments

 

Since the CC&Rs, the HOA constitution, is held to be contractually binding, sight unseen, we must apply the common meaning of the explicit, written words and avoid applying meanings and intents not explicitly set forth. If there are some vagueness to the meanings of the explicit wordings, then the intent of the drafters of the CC&Rs are investigated in order to obtain some guidance in the intended meanings of these vague wordings. This is the standard judicial procedure for interpreting contracts.

 

It is plainly obvious from the above that the HOA constitutions are lacking in several relevant objectives of substance: establish justice, insure domestic tranquility, and secure the blessings of liberty. Legally, one cannot apply political and governmental intentions that are no where implied in any manner whatsoever, such as these silent objectives.

In other words, there is no legal obligation on HOA boards to be just, to insure domestic tranquility, or to allow for the exercise of your liberties. To demand these non-HOA rights and freedoms carries no weight in the courts, unless, as a result of specific legislation or a court holding, a specific right is restored to homeowners in HOAs. This is the intent of substantive reform legislation — removing second-class citizenship.

 

It is also plainly obvious from the nature of reform legislation, lawsuits, and the public statements and positions of the pro-HOA supporters that the HOA board is not concerned “to insure domestic tranquility,” or “to promote the general welfare,” or to “secure the blessings of liberty.” They are not legally bound to do so, nor can constitutional governments demand such concerns without declaring the HOA regime a state entity subject to the 14th Amendment as required for all government entities.

 

And, as long as the courts and state legislatures stand behind the myth of a valid waiver or surrender of your rights, especially those not implied, or a reasonably expected waiver, or those not even remotely found in the HOA constitutions, good people in HOAs are governed by the independent HOA principality.

 

This is the current state of affairs in America today.  Only the voice of the people, your voice, can bring about change.

Courts will enforce CC&Rs except when . . .

This Alabama appellate decision, Grove Hill HOA v. Rice, sheds light on the reasons CAI insists that the CC&Rs being strictly enforced by the HOA and the courts: the irrational fears of a slippery slope eradication of the HOA. (The HOA was seeking an injunction against the homeowners who had built a driveway not to its liking). One person, the proft-seeking developer, is allowed to set the rules that govern the HOA community for all time to come, regardless of any political consequences with respect to the creation of a private government regime.

 

The trial court held, based on the Willow Lake opinion, emphasis aded,

 

“The Association maintained throughout the proceedings that any violation of a restrictive covenant, if allowed over its objection, necessarily dilutes the power of the restrictive covenants and thereby lessens the value of the subdivision property. We agree. In creating the restrictive covenants, the partnership expressly declared that the purpose of the covenants was `to protect the value and desirability of the Property.’”

 

However, as we are finally beginning to see a proper sense of justice for homeowners, the appellate court attempted to reject the Willow Lake precedent and held, “We do not interpret Willow Lake as requiring that an injunction is due to be granted in every case in which a resident has violated a restrictive covenant. Indeed, this court has applied the doctrine of “undue hardship . . . .” That is, emphasis added,

 

enforcement of covenants running with land `”is governed by equitable principles, and will not be decreed if, under the facts of the particular case, it would be inequitable and unjust”‘; specifically, if `”the restrictive covenant has ceased to have any beneficial or substantial value”‘ or `”the defendant will be subject to great hardship or the consequences would be inequitable,”‘ a court of equity will not enforce the covenant.

 

Unforunately, to complicate matters, “undue hardship” requires “clean hands” on the part of the homeowner in that he had no prior knowledge that his act was in violation of the CC&Rs. The court held that the homeowner had prior knowledge and therefore had “unclean hands,”  stating “that a restrictive covenant should be enforced if the defendant had knowledge of it before constructing an improvement contrary to its provisions, even if the harm is disproportionate.” The homeowner lost and had to undo the driveway at a cost of $15,000 to him.

 

 

Grove Hill HOA v. Rice, No. 2100293 (Ala. Civ. App. July 29, 2011).

Pro Se wins federal HOA discrmination appeal

The federal 7th Circuit Court of Appeals opinion in Mehta v. Beaconridge clarifies what actions constitute a violation of Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq. Mehta filed as a Pro Se. He appealed the District Court’s dismissal of his complaint as lacking substance.

Here are relevant excerpts:

 The FHA grants homeowners a cause of action against homeowners’ associations for invidious discrimination or retaliation linked to the terms, conditions, or privileges accompanying their property.

 Under the FHA, a homeowner may sue a homeowners’ association if the association engages in invidious discrimination when failing to provide maintenance services or when limiting the use of privileges, services, or facilities associated with the homeowner’s dwelling.

 With regard to Mehta’s claim of retaliation, the FHA makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of their fair housing rights.

After Mehta complained of this disparate treatment, the association placed his family’s account on delinquent status and barred them from using the subdivision’s pool, club house, and tennis court. The association then performed uncalled-for work on their gate (switching the gate from swinging inward to outward) without providing them notice or obtaining their consent, and billed them for it. When Mehta’s family refused to pay, the association fined them and threatened to place a lien on their home. Apparently fed up with their complaints, one of its employees shouted at him, “you are not moved out yet, you Indian.”

Mehta sued under the Fair Housing Act, see 42 U.S.C. §§ 3604(b), 3617.

Mehta alleged that, after he complained of disparate treatment, the association retaliated against his family by “not allowing [his] family to go to [the] pool” or to facilities such as the “clubhouse, pool, and tennis court.” He pleaded, as well, that the association maliciously designated their account as delinquent and then performed nonsense work on their fence, billed them for it, and later threatened to file a lien on their home. Mehta has, therefore, provided fair notice of his retaliation claim.

With regard to Mehta’s claims of discrimination, he alleged that the association doled out privileges and services to white homeowners, while withholding them from his family. He further alleged that the association failed to maintain their home’s aluminum siding, roof, sump pump, sidewalk and parking space, while providing those services to white homeowners; and the association engaged in preferential treatment when maintaining the grounds of the subdivision. And Mehta alleged that an association employee shouted at him in racial terms, “you are not moved out yet, you Indian.” These allegations suffice to state a plausible claim of discrimination.

In summary, the judgment of the district court is . . . VACATED with regard to the dismissal of the FHA and Illinois law claims of intentional discrimination and retaliation.

Mehta v. Beaconridge Improvement Assn, No. 11-1505 (7th Cir. July 28, 2011).

 

 

Please note that constitutional protections and statute protections exist on an issue by issue basis. That is, if the court did not reaffirm that homeowners in HOAs have this right, then the homeowner must seek legislation to restore that lost right, which is the basis of HOA reform legislation dealing with substantive issues (as opposed to HOA operational issues)

HOA Kindle books

I have compressed and summarized my research on HOA constitutional  issues over ten years and have produced several Kindle books for a comprehensive understanding of the issues.  The historical basis for the current version of utopian societies begins with a review of The Homes Association Handbook of 1964, and the history of Community Associations Institute.

I’ve tried to bridge the gap between the writings of the academic,  political scientists and the people, and present and clarify the constitutional issues facing the curent HOA hegal scheme.

The following Kindle ebooks are available for downloading

2.

The Foundations of Homeonwers Associations and the New
America REVISED by George K. Staropoli (Kindle Edition – Oct 14,
2009) – Kindle eBook

Buy: $5.95
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3.

Establishing the New America: independent HOA
principalities by George K. Staropoli (Kindle Edition – Jul 17,
2008) – Kindle eBook

Buy: $15.95
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4.

Understanding the New America of HOA-Lands by George Staropoli (Kindle Edition – Sep 24, 2010) – Kindle eBook

Buy: $8.95
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Court holds HOA elections are a matter of public interest

A California appellate court held that HOA elections are a matter of public interest and annual meetings are a public forum. Candidates are limited public figures with respect to the elections. Therefore, the anti-SLAPP law applied with respect to statements made by the candidates and their speech is protected.  A defamation lawsuit based on statements made by the candidates must survive a motion that the lawsuit was made to stifle public participation.

 

In Cabrera v. Alam the court held,

 

We reverse and remand with directions to grant the anti-SLAPP motion. Defendant carried his burden of showing the defamation claim was based on protected activity under section 425.16, subdivision (e)(3). We hold defendant’s statements were protected activity because they were made in a public forum at a homeowners association’s annual meeting and concerned an issue of public interest, namely, the qualifications of a candidate for office in the association. Plaintiff failed to carry her burden of showing a probability of prevailing on the merits of the defamation claim. Having thrust herself into the controversy surrounding the election of the association’s board of directors, she became a limited purpose public figure who was required to show defendant made the allegedly defamatory statements with malice. Plaintiff failed to produce any evidence showing defendant made the statements knowing them to be false or recklessly disregarding their falsity.

 

Another step toward the recognition of the reality that HOAs are indeed de facto governments and need to be recognized as state actors, and brought under the protections and prohibitions of the US Constitution.