Unfortunately, living in an HOA is like being an employee in a business. You may not like the way it’s run, or find the managers, bosses, or fellow employees pretty bad at doing their jobs. You may not like the way they do things, the jobs given or not given you, or how a committee that you are on is performing. What are your recourses there? Well, you got the same in the HOA corporation, owner or not.
Your HOA board director is not at all like an elected public representative, nor is he bound by the same laws and understandings as are public officials. Rather, he is a director of a corporation with responsibilities to the corporation, and not to individual owners. Keep that in mind! The courts and legislators somehow assume that the directors are your elected representatives, and that they have your consent in every decision they make. This is an assumption that legislators, as elected representatives, well know is NOT true
BIG EXCEPTIONS:
1. Under an adhesion “contract” and state laws granting financial penalties and loss of your home, you must make those compulsory payments and cannot leave the mandatory association unless you move. Your home is, in reality, collateral for life for the inept performance of your HOA board so the HOA can survive.
2. While there are employee and labor laws to protect employees, there are no laws to protect you and your rights as a mandatory member of an HOA under compulsory assessments.
As a homeowner friendly attorney stated before an Arizona legislative committee, “HOAs are the largest unregulated business in the Unitized States”.
GET INVOLVED AT YOUR LEGISLATURE! YOUR LEGISLATORS WILL DO NOTHING UNLESS DEMANDED BY NUMEROUS COMPLAINTS, WITH DETAILS, ABOUT HOA ABUSE OR VIOLATIONS OF STATE LAWS OR THE GOVERNING DOCUMENTS.
How does a person exhibit his consent to be governed? Constitutional scholar Randy Barnett explains this theory of consent,
One consents to obey the laws of the land because one has chosen to live here. Just as you are bound to obey your employer (within limits) . . . you are bound to obey the commands of the lawmaking system in place where you have chosen to live. . . . So long as you chose to remain, you have “tacitly” consented to obey the laws.” Call it the “love it or leave it” version of consent.[i]
While explicitly saying, “I consent” is unambiguous, Barnett argues that,
Simply remaining in this country, however, is highly ambiguous. It might mean that you consent to be bound by the laws . . . or it might mean that you have a good job and could not find a better one [elsewhere] . . . or that you do not want to leave your loved ones behind. It is simply unwarranted that to conclude from the mere act of remaining . . . that one has consented to all and any of the laws thereof.[ii]
Read the complete commentary at Consent.
Once again we see an industry study showing that homeowners “love us”, either the board or the community managers. I’m waiting for one that also praises those HOA attorneys next. This time the Arizona Association of Community Managers reports an “independent” study praising community management performance. Sadly, instead of meaningful research, its “study” report has the taste and smell of just another promotional and marketing brochure.
The reader of the press release is told he can obtain the details of the study from AACM’s web site, but the details are not there. Instead of an appendix of the questions asked and response breakdown, we get AACM’s conclusions. For example, the study reports that 93% of purchasers were aware that an HOA existed, and that 90% “were familiar” with the CC&RS. That’s fine, but what does “familiar with” mean? Do homeowners understand and agree with the provisions that permit the surrender and loss of their rights? Or, do they compromise under the practicality that, “I have to agree otherwise I can’t move here, and I can’t move anywhere else and find a comparable home.”
This is not freely consented. And if they have not read or had the meaning of, the consequences of, or the impact on their private property and fundamental rights fully explained to them in order that they understood the general impact of the CC&Rs, then there is no full consent. These questions, “getting to the root of things”, were not asked.
Only 15% of the homeowners filed a complaint”, they state, and then add that, “Overall, more homeowners were satisfied than dissatisfied with the resolution of their complaint against another homeowner” (emphasis added). AACM goes on to present “facts” on manager communications with homeowners. Real, substantial question aimed at getting to the heart of the matter were not asked. Like, “How satisfied were you with your communication with the managers?” Or, how many complaints were filed against the board? Against the manager? How satisfied were homeowners with the resolution of complaints?
Or, how about those questions designed to elicit sympathy for those “poor volunteers”? Homeowners believe their board tries to do their best for the community (emphasis added), reports AACM, yet avoid any discussion of the effectiveness or adequacy of their attempts to do just what is “best” for the community. “Best” is not defined. Is it similar to insuring domestic tranquility, promoting the general welfare, establishing justice? Or is it simply enforcing the CC&Rs to maintain property values?
The general impression of this “study” is, as I said at the start, just another promotional piece released at the time legislation has been introduced to regulate managers under the real estate department. Until these hard questions raised above, and those similar or based on my “10 Myths About HOAs” (http://pvtgov.org/pvtgov/10_myths.htm), are addressed simple fixes will continue to be inadequate, and homeowners will continue to be back before the their legislatures next year, and the next, and the next.
HOA Constitutional Government 