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.

HOA principalities where there’s no ex post facto or eminent domain protections

A homeowner from Apache Jtn, AZ (eastern end of Phoenix metroplex) contacted me yesterday saying that her palm trees violated the ACC’s “view of the world.”  She had moved in 4 years ago and planted palm trees like many other homes already had planted.  She was informed by the HOA that she had to remove the palms or be fined.  Amazingly, she was subsequently informed that CAI attorney Krupnick (a CAI honorable and highly lauded CCAL member, and employee of CAI Ekmark) that all palms in place over 4 years were outside the statute of limitations, but the HOA could remove trees planted less than 5 years.
 
Wow!!  HOAs escape ex post facto restrictions and eminent domain protections — no compensation was offered homeowner.  Welcome to the HOA-land of independent principalities with their own multiplicity of protected private “constitutions.”  
 
The argument advanced for amending those so-called contracts, and upheld in the courts, is that they contain an amendment procedure, and so long as the procedure was followed they are valid.  So argue the “expert” CAI attorneys.  But, they want you to ignore the other side of due process — substantive due process where the HOA “law” is itself a violation of our system of government. 
 
And forget about any question of a buyer’s “reasonable expectation” as a requirement for a valid amendment.    Or that there is no explicit waiver of the surrender of any property rights.  Or, that under contract law a CC&R amendment easily falls under an “agreement to agree” (“A-to-A”), and is not binding. An A-toA is an enforceable document if the specifics are sufficiently definite, as well as compensation, but some details are to be worked out.  In a valid A-to-A, parties cannot bind themselves to negotiate to reach an agreement on some issue or important detail. (See Black’s Law Dictionary).  What is an amendment?  It is not a negotiation between the HOA and every individual homeowner, especially if not 100% approved!  It can be a very important issue (detail) not heretofore contemplated or envisioned by the buyer.
 
How then are they valid?  Because the courts have treated this CC&R “contract” not strictly in terms of the words contained therein, but quite liberally by ascribing public government attributes to the HOA, far and above any reasonable interpretation or construction of the CC&R “contract”, and beyond any reasonable or “buried” intent to form a de jure government.
 
Furthermore, if equitable servitudes were indeed subservient to constitutional law, and not as the Restatement of Servitudes (common law) argues —  servitude law should prevail over constitutional or contract law — we wouldn’t be seeing this travesty of American democratic principles, of fairness and justice for all. 
 
What is becoming of America?   See Establishing the New America: a new book.
 

Support your local legislator fighting for your HOA reforms

This was the message strongly urged by Florida Representative Julio Robaina during his appearance on the OnTheCommons internet-talk show with Shu Bartholomew: Send those emails to your district legislators asking them to support your position on HOA reform legislation. “It really works”, he repeated again and again.

“There is nothing more powerful and helpful to a legislator than to have a fellow legislator catch you in the hall and say, ‘I got 200 emails in support of your bill.'”  Rep. Ronaina added,  “don’t forget to mention that you are a voter and will remember him at election time.”

He was extremely disappointed by the failure of the people, the homeowners who have called or emailed with problems, who did not step forward in support of reform legislation.

Rep. Robaina also reflected on the position of the special interests, particularly CAI, whom he said had their own agendas that were not favorable to the homeowners. “If the people really knew!”

Go to http://onthecommons.us/ to hear this important interview. And take action!!


Homeowners exchanging property rights for HOA property values

“When we first moved here this was like the wow factor,” said […] of his neighborhood in rural Denton County. “You see this beautiful community up in the middle of the country.”  (WFFA.com, Dallas/Ft worth, “Vanishing amenities create resident backlash at HOA“, June 2, 2009 ). 
 
The attitudes by the homeowners in this story reflects that of the vast majority of those who bought into HOAs — to maintain property values.  It is the underlying fundamental principle as to why legislators will not undertake HOA reforms.  “You got what you asked for” seems to be the view of most state legislators.  So, even in the face of pervasive and open abuse and the flaunting of state laws, the legislators have succumbed to the industry lobbyist propaganda of “It’s just a handful of malcontents. Why change the laws?” 
 
Most homeowners and advocates will find the following comments offensive.  But, based on my 10 years as an advocate and endless research into the issues, my comments are well founded in fact.
 
Until HOA reform advocates can focus on this strong argument for not changing the laws and attack the bogus contractual nature of CC&Rs, the unconscionable adhesion aspect of these CC&Rs, the state protection of HOAs that deny constitutional protections for homeowners, and the independent principality nature of these HOAs then nothing will be accomplished!  The ends — maintaining property values — does not justify the means — independent principalities where the people are not subject to constitutional protections.
  
Most advocates fear that HOAs, as a private form of contractual government, will disappear from the face of the earth even if subject to constitutional protections.  This will not happen —  see General Motors, the banks, etc.  However, to accept HOAs as is, and for state governments not to issue bona fide and effective warning advisories, is not to accept the Constitution and the American system of government for all peoples.  The Constitution is not all about contractual obligations, but to “establish justice, insure domestic tranquility, promote the general welfare. . . and to secure the blessings of liberty.” 
 
 
Accepting authoritarian, private HOA regimes is to secede from the United States, and is a repudiation of American democracy and our cherished values of individual freedoms and liberties.    And all for the unsupported statements within the HOA constitution,  as the homeowners in this story have discovered, that do not even provide a promise to maintain property values (they contain a simple statement of an objective), or provide any guaranty regarding HOA performance, as would be expected in any legitimately negotiated contract.
 

Pres. Obama spoke of getting involved in democracy

In his address today on a Cyber Czar, President Obama mentioned that his administration was looking for “new ways for Americans to become involved in Democracy.”
 
Will someone please wake him up!  Where has he been all these years?  If the President does indeed desire a compassionate Supreme Court Justice, as he announced, then he must act to stop the subversion of American principles for those equitable servitudes advocating property values, first and foremost.  The ends, a beautified American landscape, does not justify the means,  private government HOAs unaccountable under the Constitution!
 
Here are a few Commentaries about these authoritarian, self-proclaimed democratic, un-American private governments:
 
 
 
 

HOAs, justice, and judicial myth and precedent

President Obama nominated Sonia Sotomayor for Justice of the Supreme Court.  He described her as a person of compassion.  Do we want a person of compassion or a “strict constructionist”?  Or, do we want a person who will do justice and right bad or unjust laws?

 Before we can decide, we must examine some of the myths and realities of the American judicial system.  First, we have the concept of justice, the very foundation of any judicial system, although some have argued it is to uphold the law.  Philosophically, a judicial system cannot exist in a democracy if it does not uphold justice and correct the wrongs of the past.  In fact the people are told “Equal Justice Under Law”, the motto on the Supreme Court building; “to secure justice”, the commonplace stated purpose of court rules of procedure;   “to establish justice”, the opening purpose in the Preamble to the US Constitution; and we designate the members of the Supreme Court as “justices”. Notice that “to uphold the law” is not included in the above.  This is the argument, along with the insistence on precedent, used by those special interests who favor unjust laws.

 I guess we indeed require that justice be done, regardless of one’s political ideological persuasion. And if there need be an interpretation or new construction of the Constitution, that such a finding does justice.    In other words, the guiding principle is not political ideology, but doing justice under the Constitution,  and that includes overturning precedent when so required. 

 Precedent, or “stare decisis”, is another principle or doctrine of American jurisprudence that serves to establish an aura of acceptance by the people that America is a land under law, not men.  This doctrine has an inherent fallacy or inconsistency with the message that the courts are here to do justice.  Suppose a decision was a bad one, or motivated by a personal agenda?  How does it get overturned and corrected if the doctrine of precedent is cast in concrete?   However, precedents are indeed overturned, but only occasionally are Supreme Court opinions overturned (See 1954 Brown partially overturning the 1896 Plessy v. Ferguson  on equal but separate facilities).  Like the debate on the ideological leanings of a Justice, there is evidence to show that the personal views of judges do influence their decisions on a particular precedent .  And the concern for justice is not a factor.

 Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges.  (See Judicial precedent and HOA bias).

 As an example with respect to HOAs regarding a default decision on the constitutionality of an a two year-old Arizona HOA statute,

 And I concluded with the appeal, “For the Court to do justice and maintain its integrity, my ‘letter of fact’ and supporting materials must be made part of the case.”   All that I asked, the real issue, was to remove a “gag order” on my materials containing factual information that could have no other result than to have the judge, sua sponte,  as permitted under the law, put the factual materials on record in order for justice to be done.  (See Actions by AZ judge in HOA constitutionality case found ethical).

 There are very strong arguments to right not only unjust HOA laws, but HOA laws that are not consistent with the Constitution.