Author: HOAGOV

With over 20% of Americans living in homeowners associations, will any of the candidates put a stop to the loss of homeowner rights as a result of state supported authoritarian HOA regimes?  Regimes that deny due process of law and the equal protection of the laws?

Even the national HOA “true believer” lobbying group, CAI, has declared that

“Associations ensure that the collective rights and interests of homeowners are respected and preserved.” 

Florida’s CAN lobbyist was quoted in the Sun-Sentinel:

Berger [CAI CCAL member and lobbyist] counters, “There is no First Amendment right to put up a political sign in a deed-restricted community because there is no state action in a private HOA. So the association can enforce its ‘no sign’ rules in this regard.”

See:
The New America HOA-land of CAI: “ensuring the collective rights and interests”
The political ideology toward homeowners associations

CAI continues[i]  its black-is-white and white-is-black Alice in Wonderland[ii] view of the world with more pronouncements that the corporate form of HOA governance under an adhesion contract is “the most local form of local representative democracy“.  This new pronouncement of Fundamentals[iii] must be read carefully, as must all pronouncements from those who practice the political “permanent campaign[iv]” approach to HOA issues.

These Fundamentals must be interpreted based on the facts, that HOAs are legally bound in accordance with the corporate form of business government, and under a binding adhesion contract. Do not confuse HOA governance with public government.  Do not assume that the HOA does indeed function under the same mission, duties, obligations and restrictions as public government. They do not!  Take the time and compare. Do not accept these political lobbying statements by CAI whose aim is to persuade the public to accept its view of a New America as valid.

CAI clearly states that these  Fundamentals “will help people recognize the core principles at the heart of the community association model”.  But, before declaring that HOAs are the common local form of government, the Fundamentals first principle is to declare that “Associations ensure that the collective rights and interests of homeowners are respected and preserved.”  The reader should step back and examine what is being said by CAI. 

First, CAI is no longer saying HOAs are the best form of democracy.  Second, CAI is speaking not of individual rights and freedoms, the foundations of American democracy, but of “collective rights and interests“.  Third, CAI is declaring that indeed HOAs constitute a New America[v], a America based on a communal society, a socialistic society, and not one based on fundamental American values, beliefs, and principles as stated in our constitution. 

In CAI’s black-is-white and white-is-black world,  this declaration is consistent with its opposition to the constitution when it argued against “the unwise extension of constitutional rights to the use of private property by members”  to the NJ Appellate Court.[vi]  It is inconsistent with its statements that HOAs are democratic, at least not as practiced in America under the Constitution.

Looking at these Fundamental principles, CAI’s position on HOA democracy is clarified.  Items 9 and 10 address concerns for the individual homeowner.  Item 9 is a declarative statement of balancing collective rights with individual rights. It is not a goal statement, but a declarative statement which must be taken as an assertion of fact.  Item 10, pertaining to compromise with homeowners, is a guideline as it uses “should”.  In all fairness, CAI does declare in Item 8 that the HOA directors must obey the governing documents and the law.  Unfortunately, CAI fails to indicate that not only are the governing documents easily interpreted as an unconscionable adhesion contract, but that the laws favor the HOA and permit the loss of homeowner rights and freedoms.  Items 9 and 10 must be read with these facts in mind.

My “Alice in HOA Wonderland” Commentary referenced in footnote 2 also addresses the qualitative aspects of a democracy, as put forth by Professor Robert A. Dahl, and argues that voting alone — without due process of law, separation of powers and checks and balances — does not make a democracy.  This Commentary must be read to understand the simplified propaganda of Items 2 and 5, which resort to implications of bona fide democratic processes at work in HOAs just because homeowners are allowed to vote (unless not fully paid-up).

Fundamental Item 6 is CAI’s attempt to justify the New America of HOA governance with the misleading and simplified, “homeowners choose where to live and accept a contractual responsibility”, ignoring any discussion of adhesion contracts.  I addressed this “permanent campaign” statement in a Commentary[vii] that argued a wrongful application of public law doctrine to the binding contractual nature of HOA government.  “How does a person exhibit his consent to be governed” under a contractual arrangement, I asked.  Again, read this Commentary after reading Item 6.

 Notes

CAI continues[i]  its black-is-white and white-is-black Alice in Wonderland[ii] view of the world with more pronouncements that the corporate form of HOA governance under an adhesion contract is “the most local form of local representative democracy“.  This new pronouncement of Fundamentals[iii] must be read carefully, as must all pronouncements from those who practice the political “permanent campaign[iv]” approach to HOA issues.

These Fundamentals must be interpreted based on the facts, that HOAs are legally bound in accordance with the corporate form of business government, and under a binding adhesion contract. Do not confuse HOA governance with public government.  Do not assume that the HOA does indeed function under the same mission, duties, obligations and restrictions as public government. They do not!  Take the time and compare. Do not accept these political lobbying statements by CAI whose aim is to persuade the public to accept its view of a New America as valid.

CAI clearly states that these  Fundamentals “will help people recognize the core principles at the heart of the community association model”.  But, before declaring that HOAs are the common local form of government, the Fundamentals first principle is to declare that “Associations ensure that the collective rights and interests of homeowners are respected and preserved.”  The reader should step back and examine what is being said by CAI. 

First, CAI is no longer saying HOAs are the best form of democracy.  Second, CAI is speaking not of individual rights and freedoms, the foundations of American democracy, but of “collective rights and interests“.  Third, CAI is declaring that indeed HOAs constitute a New America[v], a America based on a communal society, a socialistic society, and not one based on fundamental American values, beliefs, and principles as stated in our constitution. 

In CAI’s black-is-white and white-is-black world,  this declaration is consistent with its opposition to the constitution when it argued against “the unwise extension of constitutional rights to the use of private property by members”  to the NJ Appellate Court.[vi]  It is inconsistent with its statements that HOAs are democratic, at least not as practiced in America under the Constitution.

Looking at these Fundamental principles, CAI’s position on HOA democracy is clarified.  Items 9 and 10 address concerns for the individual homeowner.  Item 9 is a declarative statement of balancing collective rights with individual rights. It is not a goal statement, but a declarative statement which must be taken as an assertion of fact.  Item 10, pertaining to compromise with homeowners, is a guideline as it uses “should”.  In all fairness, CAI does declare in Item 8 that the HOA directors must obey the governing documents and the law.  Unfortunately, CAI fails to indicate that not only are the governing documents easily interpreted as an unconscionable adhesion contract, but that the laws favor the HOA and permit the loss of homeowner rights and freedoms.  Items 9 and 10 must be read with these facts in mind.

My “Alice in HOA Wonderland” Commentary referenced in footnote 2 also addresses the qualitative aspects of a democracy, as put forth by Professor Robert A. Dahl, and argues that voting alone — without due process of law, separation of powers and checks and balances — does not make a democracy.  This Commentary must be read to understand the simplified propaganda of Items 2 and 5, which resort to implications of bona fide democratic processes at work in HOAs just because homeowners are allowed to vote (unless not fully paid-up).

Fundamental Item 6 is CAI’s attempt to justify the New America of HOA governance with the misleading and simplified, “homeowners choose where to live and accept a contractual responsibility”, ignoring any discussion of adhesion contracts.  I addressed this “permanent campaign” statement in a Commentary[vii] that argued a wrongful application of public law doctrine to the binding contractual nature of HOA government.  “How does a person exhibit his consent to be governed” under a contractual arrangement, I asked.  Again, read this Commentary after reading Item 6.

 Notes

The political system now rewards ideology over pragmatism . . . The Second Civil War[i]

The politics of ideology over reality has encroached upon the treatment of the people living in and the laws pertaining to homeowners associations.  The prevalent ideology, dogmatically pursued by the national lobbying trade organization, Community Associations Institute (CAI) and adopted by legislatures all across the country, is “no government interference”, or its other version, “no contract interference.” This mindset is applied regardless of the reality of events, conditions, and the repetitive and serious long-term problems with HOAs. 

This ideology was adopted only after the special interests obtained statutes in favor of HOA private governments that deny homeowners due process of law and the equal protection of the law.  After the legislatures’ adoption of these pro-HOA laws, the doors were slammed closed with the prevalent ideology of “no government interference”, which, in reality, should be “no more government interference.”  This mindset was echoed recently by the prestigious Goldwater Institute’s opposition this year to SB1162 in Arizona when it proclaimed the bill amounted to contract interference.[ii]  And again, we saw this ideology applied when the California Law Review Commission (CLRC) submitted legislative recommendations (AB1921)  pertaining to the rewrite of California’s HOA/Condo statutes with a blank chapter 2, “Members Bill of Rights.”[iii]

Will ideology prevail over justice, fair play, due process of law and the equal protection of the law for the people, the homeowners living in HOAs?  Will the Arizona statutes providing for the independent tribunal enforcement of the laws and CC&R “contracts”, as provided by the Office of Administrative Hearings (OAH) be upheld as constitutional?[iv]   (OAH adjudicates the complaints for the Dept. of Fire, Building and Life Safety, DFBLS, granted such authority under the statutes). 

CAI lobbyist and HOA attorney Carpenter has filed for an injunctive order against OAH from hearing anymore HOA complaints as a result of the Judge’s decision.  Here’s the Attorney General’s objection to this order:

The Complaint requested the Court to reverse the final decision of the Administrative Law Judge issued in case no. HO 06-7/029 (Nancy Waugaman v. Troon Village Master Association). The scope of the requested relief was limited to the decision in that matter only. Under A.R.S. § 12-911(E), the Court’s authority is to “affirm, reverse, modify or vacate and remand” the challenged agency decision. The Court’s October 2, 2008, decision is consistent with the scope of review and is limited to a reversal of the final administrative decision in case no. HO 06-7/029. It does not order the injunctive relief proposed by Plaintiff/Appellant that would affect other similar administrative proceedings.

Homeowners are waiting for the Attorney General to appeal of that decision.  Homeowner complaints are still not being accepted.

Such an action appears frivolous and taking up the court’s time needlessly.  CAI had opposed this year’s SB1162 and HB 2724 that would have imposed penalties on such conduct by any party in an OAH hearing, or in an appeal of such hearing.  The bills were defeated.  See videos at http://youtube.com/hoagov. 

Is this what CAI means by supporting harmonious and vibrant communities?  To deny homeowner due process of law?  And what about the Troon Mountain HOA board of directors?  Why are they funding and supporting an obvious CAI interest?  And perhaps a conflict of interest with respect to the HOA client, Troon.  Is this how HOA-land government works for harmony and productive communities? Or are they, too, fighting in support of the CAI special interest battle to deny due process of law within the community?

I wrote the Arizona Attorney General on this matter, concluding with,

I’ve been informed that a decision on how to proceed should be reached this week.  However, on behalf of homeowners seeking the enforcement of the law – without which the law is meaningless – as provided by and made accessible by OAH adjudication of HOA complaints, I ask for a speedy appeal of Judge Downey’s decision. 

This sorrowful state of affairs is yet another example of the New America of HOA land principalities at work. See http://starman.com/starpub.  Arizona cannot be known as the “You Are On Your Own State” when it comes to protecting homeowners in HOAs.

Notes