Author: HOAGOV

Both parties and presidential candidates are oblivious to the changing landscape of America that extends beyond the physical to cultural, social and political landscapes.  Homeowners associations are protected, encouraged and supported by the state legislatures who are active participants in establishing the New America of privatized local governments.

“Governments are instituted among men deriving their just powers  from the consent of the governed.” — Dec. of Independence.

The only defense offered by the special interest promoters and legislators has been one specious argument based on “a consent to be governed” based on an unsigned contract,  and by ascribing de jure government attributes to the HOA. Attempts at reform legislation are met with the outcry of “contract interference”.  More specifically, on Art 1, Sec 10, of the Constitution, the disjointed clause 1, which states:  “No state shall . . . pass any . . . law impairing the obligations of contracts.”  Now there are certain implicit assumptions underlying this restriction to make this provision a fair and just restriction.  The equivalent statement in the Northwest Treaty Ordinance of 1787, adopted just months before the creation of the Constitution, makes an explicit statement of these fair and just understandings,

“Art. 2d.  “That no law ought ever be made  . . . that shall . . . interfere with or affect private contracts or engagements, bona fide [sic], and without fraud, previously made.”

It appears that the HOA supporters have been citing the wrong document, since neither “interfere” nor “private” appear in the Constitution.  The supporters rely on the unjust constructive notice doctrine that does not require explicit consent, understanding or an exchange of positions, all contrary to contract law.  Furthermore, the so-called “sacred” contract is allowed to be amended to the detriment of homeowners without their explicit consent.  This “open-ended” consent to abide by any amendment passed by the requisite amount of homeowners also flies in the face of not only contract law – agreements to agree – but also as a taking of private property rights indirectly by the HOA. 

The HOA, having the support and protection of the state legislature, is acting as the state’s surrogate in the taking of private properties.  There are no state consumer protection agencies to warn or advise homebuyers of the loss of their rights and freedoms when entering into  the court enforced “binding” CC&R contract.

This spread of homeowner associations contrary to American principles of democratic government is documented in Establishing the New America of independent HOA principalities, based on the author’s eight-year struggle to educate the people and legislators to obtain the necessary legislative reforms.  Find out more about this growing secession from the Constitution at StarMan Publishing.

Both Senator Obama and McCain must address the continued spread of this privatization of local community government, contrary to the ideals, values, principles and beliefs that founded this great nation.  They must look inwardly to America, and put their own house in order.

See also Memorial Day: American soldiers are defending a New America, one without democratic protections.

Today’s public policy does indeed allow for the secession from local governments by HOAs.  As private contractual organizations acting as de facto governments, the restrictions and prohibitions, and the permissions, freedoms and rights contained in the US Constitution and Bill of Rights do not apply to these HOA private government regimes.  Nor are there any state laws to generally apply state constitutions and laws to HOAs.

What applies to HOAs are only specific laws and court decisions, such as those granting some homeowner protections, and those restricting their rights to less than what is provided under state laws and municipal ordinances.  Examples are: to fly the American flag, to park cars on public streets, or to place signs on their private property.

Further lack of important democratic protections include the lack of an independent tribunal, for example, to issue “search warrants” or to sign/approve “criminal charges” – issue fines under reasonable cause. There is no legal justification or authority for the HOA board of directors, or some vaguely worded ACC committee, to consider the rights and freedoms of the homeowner. This is simply because they have no such rights under their “constitutions, the CC&Rs, and state governments have failed to insure that these private constitutions protect their rights and freedoms under the laws of the land.  Any other alleged homeowner rights would require, in the absence of specific statutes, the courts to determine whether or not they are entitled to such rights.

Yet, the special interests, including the national lobbyist Community Associations Institute, the assocaiations of HOA boards, and the associations of management firms or HOA attorneys, all favor the status quo.  The only exception is the CAI promotion of the national adoption of the onerous and repressive Uniform Common Interest Ownership Act (UCIOA) model for state laws, which serves to strengthen these independent principalities.  UCIOA does not contain a homeowners’ bill of rights either.

The application of specific laws to protect and support private organizations that govern the people within a subdivision territory, in pursuit of maintaining property values, only serve to establish a New America of independent HOA principalities. They must be found to be a wrongful application and violation of the US Constitution and Bill of Rights.

Read more about The New America of Independent HOA Principailities.

In early January 1930, Mohandas Gandhi composed a Declaration of Independence for Indians against the British Raj. I have paraphrased this document as befitting the state of affairs today with the state protection of authoritarian homeowners association regimes.

We believe it is the inalienable right of the [homeowners in HOAs], as of any other [citizen], to have freedom and enjoy the fruits of their toils and have the necessities of life, [liberty and the pursuit of happiness].

The [state legislatures] have not only deprived the [homeowners in HOAs] of their freedom but have based itself on the exploitation of [these homeowners], and [have ruined their respective states] 

economically [by failure to hold HOAs financially accountable],

politically [by depriving these homeowners of their due process and their equal application of the law protections that are applicable to all other government entities],

culturally and spiritually [by supporting the HOA’s objectives of maintaining property values without protecting the rights and freedoms of the homeowners]. 

We believe, therefore, that the [state legislatures] must sever their connection to, [protection and support of, and cooperation with these independent HOA principalities] and [deny their secession from the US and state Constitutions].
 

Historians have referred to the American Revolution as the “American Experiment”,[i] because it introduced a modern, as of that time, form of a democratic republic.  Would such a government based on the principles, beliefs and values of our Founding fathers survive the passage of time? 

The new constitutional government met for the first time in 1789, the same year that saw another experiment in democracy, this time in Europe: the French Revolution.  The French Revolution ended with the establishment of the Napoleonic Empire in 1804, and with further bloodshed for over 11 more years during the Napoleonic Wars.  In contrast, the American Experiment has endured for some 219 years and has proven to be quite successful.

However, over the past century there has been a slow but steady erosion of the American Experiment.  We have witnessed the Supreme Court view the Constitution, that contract between the people and the federal government, as a “living document” subject to its interpretations, such as adding “privacy’ as a new fundamental right[ii], ignoring the Ninth Amendment,[iii] and redefining the meaning of “public use” to mean “public purpose”.[iv] 

In 1964, with the publication of the Homes Association Handbook[v], Technical Bulletin #50, by the Urban Land Institute, and with the support and funding of private interests and federal agencies, the birth of the Second American Experiment went largely unnoticed.  Under an unspoken alliance, the public was not informed of this experiment in the privatization of government.  The special interest promoters have described this second Experiment, boastfully, not as a revolution, but as “The Emergence and Acceptance of a Quiet Innovation in Housing”.[vi]  This second experiment was not a strengthening of democracy, but one that promoted and established, with the support and cooperation of the state legislatures, private, contractual, authoritarian government regimes.

The profound impact that this Second American Experiment has had, and continues to have, on public policy goes unnoticed by the public at large.    Our legislators believe in this experiment, and so do special interests and the big media corporations that have failed to inform the public.  This impact on public policy is reflected in the following recent incidents. 

1.      In California, a rewrite of its HOA laws contains an empty chapter for a homeowners’ bill of rights. 

2.      In New Jersey, its Supreme Court believes that the business judgment rule is sufficient to protect homeowners’ fundamental rights. 

3.      In Arizona, the only two important HOA reform bills that would provide substantive due process protections were either killed or delayed by the actions of the Rules Committee chairmen. 

4.      The common law authority on covenants and homeowners associations, The Restatement of Laws (Third), Property: Servitudes, states that “The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, not of constitutional law.”

This second experiment is creating and establishing a New America, an America quite distinct and contrary to the America of our Founding Fathers. 

Many people accept the terms and conditions of the HOA governing documents, as many accept the rigors of military life.  They do not mind being told what to do, when to do it, and how to do it.  Others adhere to the belief, even after 44 years of contrary evidence, that true democratic reforms will still take place. They are faced with the harsh reality that their strong beliefs are not real, and that, in fact, their government doesn’t intend to make them a reality.  And that is indeed a very harsh pill to swallow.

Others do not accept this privatization of government — this delegation of government powers.  A privatization defended by those sworn to uphold the Constitution.  A privatization by virtue of a questionable private contractual agreement that is a devise by real estate special interests to bypass constitutional government with its protections of the rights and freedoms of the people.

Learn about the history of HOAs, and the motivations of the orginal promoters of HOAs and of the national lobbying group currently promoting this privatization. Learn about the events, incidents and pro-HOA legislation over the past 44 years that continue to have an impact on the legal  and social fabric of America, and on the everyday lives of every American.

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