Author: HOAGOV

The CAI College of Community Assn Lawyers member, by Scott B. Carpenter, had cows on his mind when he wrote about The Tragedy of the Common Elements.  Somehow  he stumbled upon a 1968 article about one herder’s cows damaging the common grazing area used for the benefit of all the herders, making an analogy to some “grazing amenity.”  He then jumps to HOAs with their common areas, basically the amenities.  Could Carpenter be confusing people with cows, and in following his herder story, that the overuse of the amenities by a lot owner’s family ruins it for the other members? 

He is concerned about Arizona law, ARS 33-1255(c)(2) that defers to the CC&Rs as to whether or not the homeowner affected by a damaged roof should alone pay for the cost of repairs, and that there should be no recourse to having the HOA pay out of its common funds.  He seeks to extend this statute to planned communities.

The “tragedy” he speaks of appears to be a question of scarce money in a tight economy.  However, there is no discussion of  past failures to provide for adequate reserves, or to raise assessments to cover these contingencies, although this is occurring today with respect to foreclosures.

Carpenter then makes the argument that the very philosophy of condo living with its communal structure is itself  “the very philosophy that feeds the Tragedy.”     Say what??  He  had defined the tragedy as “a dilemma in which individuals acting independently in their own self-interest can ultimately destroy a shared resource even where it is clear that it is not in anyone’s long term interest.”  

It appears then that CAI is heading to the Legislature to make this systemic alteration in the HOA legal scheme a law, a law that mandates that the individual “take the hit” and pay out of his own funds, and not from the collective “social security” common funds of the HOA.  In the tradition of pro-HOA attorney lobbyists,  reaching way out to make a weak case, Carpenter then asserts an unsubstantiated claim that those homeowners can’t be trusted and that they are out to get us!  He writes, “This would solve the problem of unit owners having an incentive to foist as many unit expenses onto the community association as possible.”

To be clear, Carpenter seems to be accepting the fact that the HOA is incapable of establishing sound financial management techniques that require increased assessments from the membership. That would be admitting a resounding negative to the HOA scheme, and negatives are taboo.  Establishing such reserves would then demand strict financial accountability by the HOA board and its management firm, which CAI has adamantly refused to allow.  “Trust the management” has been its propaganda.

CAI offers unworkable solutions that are divisive and adversarial:  go after the individual homeowner.  Forget about “we are in this together” and “we are a community.”   The survival of the HOA is paramount!  Forget about the American spirit that made America a great country.  No more let’s help the Jones build their barn, or take care of the Smith’s children while their mother lies very ill.  No, the individual must support the interests of the state, the HOA,  and the corporations that support the state, the HOA attorneys and management firms.   (It’s bad enough that the homeowner has unknowingly pledged his home as collateral for the HOA’s survival).

When will homeowners, the media, the public, and the legislators understand and accept that CAI has its own personal agenda, which is not in the best interest of the people or the state?

Read the full Commnetary at Tragedy.

WTVR.COM in Richmond, VA announced that two Congressmen have introduced a resolution (H. Res. 952) in the US House to permit the flag to be flown anywhere by Medal of Honor winners.  I congratulate these Congressmen, but the bill falls short of granting free speech rights to all Americans living in HOAs.

What is necessary is to educate Congress about the hidden aspects of the HOA legal scheme that denies citizens their rights under state and federal laws.  I commented on this article as follows:

Congress should look into the entire HOA legal scheme that creates a private, political government that controls and regulates the people within a territory, the subdivision subject to CC&Rs. Under unconscionable adhesion contracts, unsuspecting homebuyers are deprived of their constitutional rights to due process and the equal application of the laws.

State legislatures have not delegated any such governing powers to these private organizations! As a private organization, the HOA government is not subject to the 14th Amendment that all other forms of government are subject.

State laws are biased in favor of the HOA and against the homeonwers under a gross refusal to recognize the failures of a genuine, explicit consent to the loss of their rights and freedoms that are enjoyed by all others not living in an HOA.

Much more can be said!

Please visit http://pvtgov.org and my Commentaries at https://pvtgov.wordpress.com .

Please write and educate Congress, and especially Rep. Cantor, Minority Whip, (CA) and Representative McKeon (VA).  We know that CAI will!

From Rep. McKeon’s webpage:

“I was appalled to learn that one of our decorated Congressional Medal of Honor veterans was being prevented from proudly displaying the Flag of the United States of America in an honorable way,” said Rep. McKeon.  “This reminds me of that famous quote by George Washington: ‘The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional as to how they perceive the Veterans of earlier wars were treated and appreciated by their country.’  Our service men and women – especially those living with honors and distinction- should be allowed to fly the flag that represents the very freedoms they fought so hard to protect.”

 

 

“It’s a sad day when a veteran of three wars is told he cannot fly the American flag on a poll outside of his home,” said Republican Whip Cantor.  “Col. Barfoot made countless sacrifices, wore our country’s uniform with honor, and has earned the right to proudly display the American flag.  I thank Col. Barfoot for his service and support his patriotism and efforts, as well as those here in the House, to allow him to fly his flag.” 

 

“Gov. Timothy M. Kaine said today it is “ridiculous” for the Sussex Square community association not to let a Medal of Honor winner fly the American flag from a flagpole in his yard. “

For those who have read my classification of HOA true believers as neo-Americans, that is, those who truly believe in the legal, economic and social values and benefits of HOA-land — the New America — allow me to clarify my reference to neo-Americans with those whom I classify as “truly hopefuls.”

In contrast to the neo-Americans, there are many people, and allow be to generalize here, who simply like the perceived benefits of HOA living —  the amenities, the gardening  maintenance, and the “other guys’, the HOA, enforcement of rules that you personally don’t have to put up with.  Just complain to the board and let them do the enforcement. Yet, these homeowners also realize that life in an HOA is just not exactly the way they would like it to be, and on purely personal grounds, want some changes to the way the HOA does its business.  Change this rule, impose this new rule, etc.  In short, they agree to the basic design of the HOA government, and see no reason to make substantive changes to it.  Like make it accountable to the state via enforcement of HOA violations of the governing documents and state laws.  These people seem to be confused with the reality that the HOA is a form of government that regulates and controls the people within the planned community subdivision with the real estate “package”.

I classify these persons as “truly hopefuls”, because they truly hope that these non-fundamental changes will make the HOA a better place to live.  Truly hopeful that still, after some 45 years of problems and resistance by the legislatures and national lobbying group, CAI, these changes will indeed come about.

With respect to the above classifications, homeowners in both classifications need to understand that their support of the HOA legal scheme is an approval of an un-American form of government.  In contrast, my view has always been that the legal HOA scheme must be made subject to the US Constitution and Bill of Rights, as required of all other forms of political government in this country.  The real estate “package” of the planned community with its amenities can remain, and still be workable with respect to local voice of the community, but under the American system of democratic government.  In order for this to happen,

the HOA form of government must be abolished!

With this understanding that the HOA is a legal form of governance, our elected officials must accept the de facto reality that HOAs are indeed an un-American political government that control and regulate the people within  planned community subdivisions.  Our elected officials must refute the neo-American false arguments that HOAs are not governments, a self-serving argument to permit the special interest lobbyists to formulate, and to establish control over, the legal structure of this authoritarian government.  The HOA, not being subject to the Constitution and the 14th Amendment, denies citizens their privileges and immunities otherwise protected from all public government denials.  Our elected officials need to realize that the pro-HOA lobbyist position is an affront to and a rejection of our system of  government. 

Our elected officials need to understand that, in a rejection of individual rights and freedoms, the so-called HOA “contract” is actually imposed on the homeowner.   And that the argument “to remain living in the HOA is implied consent” is an inappropriate legal doctrine, applicable to the realm of non-contractual public government.  This “consent” lies outside the “contractual” conditions and covenants of the CC&RS!

the HOA form of government must be abolished!