Author: HOAGOV

I posted my comments to a LoudounTimes (VA) article about an HOA lobbying before a public body concerning construction of a hospital outside the HOA subdivision.  The article focused on allegations of an improper board vote and the composition of the board.

However, there is a much larger issue here, beyond the technicalities of the HOA management procedures and votes.  Does an HOA have the authority under the law or its governing documents to assert that it is the legal representative of the members to speak before public bodies?  I don’t think so, especially without a plebiscite from the HOA members. 

If the HOA speaks before a public entity, then isn’t the HOA a lobbyist and must so register with the state, subjecting itself to all legal requirements of lobbyists?

As the courts have reminded homeowners, as well as CAI, HOAs are contractual “businesses” subject to the business judgment rule, and are not public entities.  The election of an HOA director carries with it no powers to speak before public bodies on behalf of homeowners.  And while we are at it, it goes the same for the HOA attorneys and management firms who allege to the media, and at state legislative hearings, that they represent the people — the homeowners.

Government officials and legislators must bear this in mind the next time these organization claim to speak for their homeowners.

One of those CAI educated, certified HOA property managers wrote in the Desert Sun this Nov. 15th urging homeowners to get involved. He wrote,

The general membership of the HOA is not asked to vote on most issues that the board of directors makes decisions on because the board was elected by the members within the community to act on their behalf.

That says it all.  A grant of broad powers as if the board were inded an elected public representative.  This is a generalized surrender of one’s private property rights, carte blanche.  And this failure to understand what was given away to the board, and the court’s broad interpretations of HOA powers, verging on communalism and “state” control of private assets, lies at the root of homeowner discontent.

 I just love these appeals to democratic processes in an authoritarian regime. First, the HOA board is a corporate form of government, and whoever heard that businesses were democratic. Just because there are some opportunities to vote doesn’t make HOAs democratic — see China or Cuba.

Second, other processes set into place in the public arena do not apply under the HOA constitution , the CC&Rs and bylaws. For example, fair election protections — board uses HOAs funds for “campaigning” while homeowners must use their own funds; equal access to the HOA newletter/website and community hall for meetings; access to the membership list in order to contact others.

Now, ask yourself why these democratic processes are not found in the HOA authoritarian regimes?

“You signed the document saying you understood that you were moving into a deed-restricted HOA community,” she said. “If it wasn’t for these rules that keep our homes looking decent, our homes would be worth nothing. The appearance of the neighborhood has to be nice.”

 

 

(St Petersburg Times article of Nov. 13th, “Neighbors keep up appearances in struggling Tampa suburbs”).

How many people live in blighted areas, outside an HOA?  One AZ Senator took offense at a pro-HOA speaker who said, “Who wants to live in a blighted area?” in his defense of HOAs.  This Senator didn’t live in an HOA.

Getting back to close minded group-think, it’s really a question of your neighbors.  And the HOA mentality presumes that all OTHERS are out to destroy their $200,000 –  $1,000,000 homes, and must be subjected to strict disciplinary procedures, but not them.  How negative!  What a vibrant community attitude! 

Perhaps, indeed, those who choose HOA living are concerned about blighted neighborhoods, but that concern does not justify the loss of individual rights and freedoms, or the use of fraudulent sales tactics, or silence on the part of state consumer protection agencies, or mandating HOAs for new developments.  And with the state’s ideology of no accountability,  laissez-faire private government, these rules have become more important than the ends of maintaining property values.  And “maintaining property values” has even suppressed constitutional protections.

The mindset of “HOA uber alles” (HOA over all) is just another version of dogmatic ideology in pursuit of one’s personal choices, and to hell with everything and everybody else, including the Constitution.  The mindset does not reflect the best interest of our society, especially if it is to remain true to American values, beliefs and principles.

The problem I’ve found across state legislatures, and with the advocates, is that the advocates are either being too reasonable, thinking that the legislators are indeed on their side, or too fanatic, moaning and groaning that  “we wuz robbed!”  With all due respect to the advocacy leaders in Texas, unless the issue of , say foreclosure, is shown to be a gross injustice rather than a just bad choice of already granted to HOAs. Simply on the fact of a failure to fairly and properly disclose, as brought out by the woman at the Houston conference, there is gross injustice.  And, when state governments say nothing to warn buyers after hearing of these complaints, then it’s obvious that the legislators don’t care about homeowner rights, and there is gross injustice.

“In order to succeed, you must accept the world as it is and rise above it”

For years I believed that the legislators would standup and defend the Constitution and protect the fundamental values, beliefs and principles of our Founding Fathers.  And when they repeatedly failed to do so, preferring to defend HOAs under the flimsy arguments of a constructive notice and “continuing to live” as a consent to be governed, I realized other factors were at work.  Over the past few years my thoughts turned to the influence of political parties and the control they have over the individual legislators, the powerful committee assignments that can kill bills without a hearing, and party positions. The majority party has control over chairmanships and submitting bills for final vote, among other powers.

For example, in Arizona the Rules Committee Chairman killed several HOA reform bills on his own prerogative, or so it seemed.  But, his acts were not possible if he were to continue as an important person within the party if he did not follow his party’s wishes. One bill, back in 2004, did get past the chairmen but only as a result of the strong combined efforts of the bill’s sponsor, the active involvement of the media, an outspoken advocacy support.

If successful legislation is to be obtained, advocates must understand the political forces at work here in America, as demonstrated by the recent national political campaigns.  They also operate at the state level, too.  In short, the political parties have become identified with specific ideologies, and hold the obedience to their ideology before their allegiance to the country.  That is, party first, our party must win, defeat the other party’s ideas, do not defect or deviate from the party ideology.

The political system has evolved to a point where the vast majority of elected officials in each party feel comfortable only in advancing ideas acceptable to their core supporters — their ‘base”.  (The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America, Ronald Brownstein, Penguin Books, 2007).

As related to HOA issues, the parties, under the influence of the special interests and misguided public interest organizations on both sides, do very little to help the homeowner. (Recall the conservative Goldwater Institute flimsy, but ideological, position that homeowners have entered into a bona fide contract which must not be interfered with by the government). Party interests dominate over American democratic principles and values. Yes, advocates may find a sympathetic legislator, or fortunate to find a champion like Rep. Farnsworth in Arizona and Rep. Robaina in Florida, but they are far and few in between.  And they, too, must deal with their party leadership.

Advocates must meet the challenge to our American foundations and address their grievances to that level.  You cannot get anywhere with arguments that its “not nice” to require homeowners to do such and such, but must show that it is fundamentally wrong to permit such CC&Rs and restrictions.  The party leadership must be shown that their positions are not what the people want, and that they are not good for America.  The party leadership must be asked if it stands for authoritarian regimes that deny individual rights under CC&R constitutions that lack protections of individual rights and freedoms. Do these party leaders believe that the repression of fundamental freedoms to achieve their vision of a landscaped American is good public policy, or is it serving to establish a New America.  Surely, establishing a landscaped American can be achieved in a fair and democratic manner without suppressing individual rights and freedoms. (See Establishing the New America of independent HOA principalities, http://starman.com/starpub).

These onerous provisions only serve to unjustly punish homeowners who are without adequate due process protections.  If legislators want these oppressive statutes, then give the homeowners sufficient laws to protect their individual rights.

A second issue with getting substantive legislation is the focus on personal problems.  Why is so much discussion taking place at this level? Because it reflects the extent to which homeowners do not understand what they have supposedly, freely and with full understanding, agreed to when buying into an HOA.  (Sadly, there have been no legislative arguments protesting this freely consented contractual  view homeowner agreement). 

Much of the personal problems brought out at this meeting, at similarly at the Florida homeowners conference, fail to focus on the broader picture that emphasizes the adhesion contact nature of the CC&Rs.  Again, with all due respect to these advocate leaders, the answer lies in 1) proper and complete disclosure and 2) the protection of individual rights that both political parties claim to favor, but somehow avoid or distort when it comes to homeowners living in HOAs.

As described in The Second Civil War, even the party’s “true believer’s”, the ideologues, are answerable to the public, the voters, if they people rally together and make their voices heard loud a clear.  The Houston conference, and those in other states serve a valid purpose. However, will lose any impact unless homeowners make their voices heard loud and clear.  Internet campaigns to the legislators are required, along with strong presence before the hearing committees.  

It’s up to you, the individual homeowner, to protect your fundamental rights and freedoms.