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.

CLRC proposes changes to HOA laws without a bill of rights

The California Law Review Commission, CLRC, has been studying a major revision to the Davis-Stirling Act governing homeonwers asssociations or CIDs.  After several years of work, it propsed sweeping changes in the vehicle of proposed legislation, AB 1921.
The bill was submitted with a blank Chapter 2, “Member Bill of Rights” provision, to which I commented:
 
This action by CLRC stands in sharp contrast to the approach taken by our Founding Fathers, although they had their differences, which conditioned the approval of the constitution upon the approval of the Bill of Rights.   This Commission has proposed AB 1921 without even considering, under its empty  “Member Bill of Rights”, the rights and freedoms of California citizens who are subject to the Davis–Stirling Act.
  

Summary of recommendations for Member Bill of Rights

 

1.                   Withdraw AB 1921 until Chapter 2, Member Bill of Rights, has been defined, and condition the approval of any proposed rewrite of the Davis-Stirling Act law on the approval of a homeowners’ bill of rights.

2.                  Explicitly state that the California Constitution is the supreme law of the land and any conflict between the Constitution and the law of servitudes shall be decided in favor of the Constitution.

3.                  Include a statement that CIDs and all governing documents are subject to Article 1, Declaration of Rights, of the California Constitution, and in particular sections 1, 3(b)(4), 7, 17, 19 and 24.

4.                  Include a statement that the judicial scrutiny of any covenant, bylaw or rule be the same as would be required according the nature of the constitutional question, and not that blanket rule of reasonableness.

5.                  Include a statement that, as a matter of good public policy, the state has a compelling legitimate interest in the enforcement of violations by the governing bodies of CIDs, and shall provide appropriate penalties against such violators as both a punishment and a deterrent to future violations.

6.                  CLRC must include as part of its approach to the revision of Davis-Stirling the non-existent, to date, perspective of protecting the individual liberties of homeowners as it seeks to regulate CIDs in a fair and just manner.

7.                  CLRC has a duty to examine, under its mission to rewrite Davis-Stirling, the sources given herein, in addition others, to assist its members in understanding the constitutional requirements of due process and the equal protection of the law in order to protect individual homeowner liberties and freedoms.

 
View the complete AB 1921 comments here.

CAI, the Nation’s Advisor on Homeowners Associations, and separate and unequal governments

I must repeat the CAI claim, because it’s so unbelievable:  “HOAs are not governments, but are democratic”. (See CAI Ungated blog entry of Apr 2, 20081 and my analysis2).  

 

That’s an oxymoron.  A democracy is a form of government; everybody knows that. Or do they?   Once again we see the Community Associations Institute (CAI) attempting to redefine and distort old concepts and meanings in order to make the authoritarian HOA regime acceptable to the public and to the policy makers.  It won’t work anymore!

 

How can CAI reconcile the above declaration of the HOA legal scheme with its amicus curiae position in the NJ Supreme Court Twin Rivers HOA free speech hearing?  It advised the Court — sounded more like a warning – of (emphasis added), 

 

[T]he unwise extension of constitutional rights to the use of private property by members (as opposed to the public) raises the likelihood that judicial intervention will become the norm, and serve as the preferred mechanism for decision-making, rather than members effectuating change through the democratic process.

 

 

In one fell swoop CAI dismisses the Constitution as the supreme law of the land and substitutes the voice of the people as the only “law” governing HOAs.  CAI seems to be saying that the people can do no wrong.  If HOAs are indeed democratic, to temporarily accept CAI’s argument, then that form of democracy is not the American form of democracy based on the Constitution and Bill of Rights.  Is CAI arguing that there must not be any constraints whatsoever on the voice of the people? And that the judiciary, with its separate powers to watch over violations of the laws and constitutionality, is not necessary?  This will only lead to anarchy.  Or does CAI have some other goal?

 

What is CAI saying here?  Is CAI supporting succession as Nelson writes in his book, Private Neighborhoods and the Transformation of Local Government?  I don’t think so, because CAI is the behind-the-scenes supporter of the adoption of UCIOA, or UCIOA based statutes.  UCIOA is a uniform model act for HOA laws, a top-down imposition of rules and regulations without the voice of the local community being heard at all.  UCIOA lacks the restrictions and protections of individual rights so cherished by the people of America; and redefines the goal of government as the protection of property values, first and foremost.

 

It appears that CAI favors a separation of laws, one for HOAs and one for the ever-shrinking number of others not living in HOAs.  CAI’s goal appears to be the establishment independent city-states, of principalities, within the umbrella of the US all bound under the UCIOA rules for HOAs.  The US is still necessary to be the “glue”, the binding force, to effect UCIOA dominance over this growing segment of the country.  But, “hands-off” HOAs, USA!

 

When will the policy makers and public interest groups begin to take a closer look into the advice that CAI is really offering?

 

 

CAI argues HOAs are democratic, yet not a government

My first reaction to this unbelievable attempt to distort reality is: “Beware the Jabberwock, my son!”1  In his April 2, 2008 Ungated blog entry, CEO Skiba faithfully follows the Alice in Wonderland perception of homeowners associations, namely, as I’ve written earlier, of “what you see is not what you get”. 

Skiba writes:

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis. . . .

. . . .

I for one prefer the democratic principles that have served this country for more than 230 years, as frustrating as the process can sometimes be, rather than the various failed alternatives washed up on history’s shores.

  

“Beware the Jabberwock, my son!” 

First, yes HOAs are indeed de facto governments and are authoritarian regimes that rest upon adhesion contracts and state protective statutes, depriving the people, the homeowners, of their freedoms and liberties under the Constitution.  Any treatise on constitutional law will provide the Supreme Court criteria for state actors (entities that function as if a state entity), which apply to HOAs.  CAI loves to direct readers to that one archaic test of state actors,  that of “public functions” from a 1946 case about company towns.  

Just because you can vote does not make a territory or community a democracy. Ask any who have live under Communist Russia, China, or Cuba where voting is allowed, or those in America who lived under Mayor Daly, Boss Tweed or Huey Long, to name a few.  And I guess Mr. Skiba is not familiar with Robert Dahl’s look into democratic performance. The author sets 5 criteria to measure democratic performance: 1) maintaining a democratic system, 2) protecting fundamental democratic rights, 3) insuring fairness among the citizens, 4) encouraging a democratic consensus, and 5) a democratic system that solves problems.2 

Second,  Mr. Skiba also seems to be short on the principles of the Founding Fathers and the contents of the Constitution, reflecting their distrust of government, that contain checks and balances, a separation of powers, an independent judiciary, and a Bill of Rights to ensure that the people’s rights and freedoms are protected. All are absent in the so-called democratic, corporate form of authoritarian governance called the HOA. 

Mr. Skiba continues further with, 

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable. . . .

 . . . .

I don’t think government should dictate in detail how associations should be run from some far off state capital or even Washington, DC. That would be taking away an associations democratic rights and responsibilities.

This statement is truly unbelievable!  CAI is a strong proponent of UCIOA, that uniform, top-down statutory model to regulate HOAs being promoted in many state legislatures.  UCIOA imposes statutes that permit, among other things, foreclosure; due process before your HOA, biased government without the right to present and question witnesses as required under the Constitution, but absent from private contracts; and the absence of enforcement against HOA violations with appropriate penalties to serve as a deterrent, as is the purpose of criminal laws.  Is this the voice of the local community?  The members of your community? 

And finally, Mr. Skiba must resort to patriotic imagery and sentiment in order to gather support for his lost cause, identifying the author of the following as an attorney and Vietnam vet, 

Democracy is built on the simplest premise that has ever supported a political system, that a majority of the voters will be right more often than they are wrong. The inevitable errors will be corrected by the voters–when they perceive those errors.

The statement is a belief in the system, yet fails to address the important foundations and concerns of  the Founding Fathers with respect to those unalienable rights, you know, the ones that no government can take away, and the rule of the majority.  The dangers of one faction, a clique in today’s terms, dominating another was well known to the Founding Fathers.3  The Founding Fathers addressed the serious abuse majority rule, that of the tyranny of the majority leading to the tyranny of the legislature. The end result being the trampling of those unalienable rights that no government can take away, those rights protected under the first 8 amendments as well as the 9th and 10th amendments.  

And this is one of the most serious defects in the HOA legal scheme as applied to the proper exercise of democratic functions to protect the rights of the minority. The members of the HOA have no such equivalent rights under the HOA “constitution”.  HOAs are a business form of authoritarian governance, as Skiba and other CAI stalwarts have repeated pronounced. Mr. Skiba seems to be “small talking”, oversimplifying the issues, and distorting them and the reality behind HOA governments. They are not democratic at all!  Don’t believe it!  

“Beware the Jabberwock, my son! 

1 “Jabberwocky” is a poem of nonsense verse written by Lewis Carroll, originally featured as a part of his novel Through the Looking-Glass, and What Alice Found There (1871).  Read the poem at http://www.math.luc.edu/~vande/jabtext.html. Lewis Carroll also wrote Alice in Wonderland.  

2 Robert A. Dahl, How Democratic is the American Constitution?”, p. 92-93 , Yale University 2002.

3 The Federalist papers, No. 10, 78.

PVTGOV News Video documentaries are now online

PVTGOV News Video  is a service that provides excerpts from legislative sessions and court videos for viewing of important homeowner rights issues.  See and hear how advocates have been fighting for homeowner rights, and how the courts and legislators have reponded in several states across the country.   Some videos contain commentaries on these developments.

These documentaries are currently available for internet viewing at:

1.  HOAGOV channel on YouTube:  Channel

2.  iReporter HOAGOV at iReport.com (CNN).  Search under “HOA government”. 

3.  StarPub website: Videos

Case No.: 07F-H067035-BFS Appeal Decision

The Arizona Administrative Law Judge’s decision of in favor of the Petitioner/homeowner was appealed by the HOA on September 19, 2007 to the Maricopa Superior Court (LC2007-000588).  On March 25, 2008, a Ruling Minute Entry was filed reversing the OAH decision, but attorneys’ fees were not awarded to either party. (The homeowner acted in Pro Per, for himself, while the HOA relied on insurance coverage).

In short, the court held

  1. that the contested board election was a vote of delegates and not “unit owners” and therefore, the prohibition on proxies statute ARS 33-1812(A) did not apply;

  1. “A delegate system of governance is not synonymous with a proxy vote”;

  1. “Nothing in the record reflects that any of Terravita’s elected delegates cast their votes by proxy in the May 2007 election”;

     4. “[T]he legislature  distinguishes between delegates and proxies and knows how to draw that distinction in its enactments. The legislature has prohibited proxies as a form of vote-casting in planned communities, but not the use of delegates as a form of corporate governance.” 

However, the judge’s short discussion is disturbing.  About 2 pages, in length, of these 5 pages contain double-spaced recitations of three statutes, ARS 10-3640 (the functions of a delegate) and 10-3726 (how delegates can be used to elect directors (the heart of the issue), from corporate law, and ARS 33-1812 (the HOA statute in question).  Yet, while the judge invites a comparison between delegates and proxies statutes under Arizona law, 10-3640 and 10-3724, she explicitly cites only the delegate statute.  The “on point” corporation statute defining “proxy”, 10-3724, is not cited at all.  Furthermore, ARS 10-3410 is cited (paragraph 17, defining “delegate”) in a footnote.   

This is particularly disturbing since 10-3724 is in paria material, or “on point”, which clarifies and amplifies that a proxy is a person and not a form, was not cited!  For example, 10-3724(B) gets to the issue in favor of the homeowner rather quickly, but is not cited or referenced in the judge’s discussion (emphasis added): 

B. Unless the articles of incorporation or bylaws prohibit or limit proxy voting, a member may appoint a proxy to vote or otherwise act for the member by signing an appointment form, either personally or by the member’s attorney-in-fact.

span style=”font-size: 10pt”> See the opening phrases from (C) and (D), “An appointment of a proxy”, and the reference to people in (D)(1), (2), etc, “A pledgee”, “A person”, “A creditor”, “An employee”, also not cited. 

How can a form be appointed?  Even Paragraph 17 of 10-3140 reads: “Delegates” means those persons elected or appointed to vote in a representative assembly for the election of a director or directors or on other matters” (emphasis added). 

The judge’s own cite of 33-1812 contains (emphasis added),  

A. Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy.The association shall provide for votes to be cast in person and by absentee ballotand may provide for voting by some other form of delivery.

Finally, the judge cites Washburn v. Pima County in footnote 5 that the legislature is presumed to know about prior statutes (knowledge of what the corporate statutes say about proxies and delegates), and if it meant to exclude voting delegates from being used in HOA voting it would have added additional wording to that effect. This selected reference by the judge to Washburn carries with it the assumption that the issue is one of redefining “proxy” to include “delegate”, but this is not the case with 33-1812(A). 

This apparent confusion between the meaning of proxy as a person or form of voting — an authorization on how to vote — is easily clarified by simply going to the generally accepted legal dictionary, Black’s Law Dictionary, where “proxy” is defined both as a person under (1), and as authorization under (2), or a form under (3).   

Now, what about forms of governance and voting in any form of governance?  It is quite clear that the delegate voting system, regardless of whether it is a form of governance or not, uses persons to vote for others, and that the governing documents are, in effect, null and void by virtue of 33-1812.  In other words, these people, these delegates who are appointed to vote, can only vote as a representative of others and are proxies.  To hold that they are people independent of any election to so appoint them to vote at board meetings, among other things, becomes ludicrous.   

By definition, delegates can only vote as a proxy for others. Even if we look at the governing documents where it states that these delegates can vote any which way they like, delegates are not free of the fact that they hold their power only as a result of the election by unit owners. The amount of power granted to a delegate, or any conditions for voting, is immaterial to the issue.   

The Defendant homeowner (since the HOA brought the appeal suit, the homeowner is now the defendant) is strongly urged to appeal this decision to the Appeals Court. 

See OAH –

 Appeal decision

OAH decision

OAH complaint