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.

The Fall of 'the American Experiment': Homeowner preference for HOA regimes

Homeowners seem to prefer the private contractual government arrangement that controls and regulates not only the use of their private property, but also the behavior of the people themselves within the homeowner association community.  They seem to prefer the policing and enforcement functions of the HOA designed to maintain property values, and turn a blind eye to the lack of protections of their rights and freedoms within this independent form of authoritarian government.

. . . .

One can only conclude that homeowners under HOA regimes must look to their private constitutions, their CC&Rs, for whatever protections they may have, and not to the US Constitution.  Unfortunately, in order to make enforcement first and foremost within these regimes, old proven methods had to be employed – the suspension of fundamental rights and freedoms in the HOA “constitutions”. 

This seems an acceptable trade-off for many homeowners in New America.

Read the complete commentary at Experiment.

The Fall of ‘the American Experiment’: Homeowner preference for HOA regimes

Homeowners seem to prefer the private contractual government arrangement that controls and regulates not only the use of their private property, but also the behavior of the people themselves within the homeowner association community.  They seem to prefer the policing and enforcement functions of the HOA designed to maintain property values, and turn a blind eye to the lack of protections of their rights and freedoms within this independent form of authoritarian government.

. . . .

One can only conclude that homeowners under HOA regimes must look to their private constitutions, their CC&Rs, for whatever protections they may have, and not to the US Constitution.  Unfortunately, in order to make enforcement first and foremost within these regimes, old proven methods had to be employed – the suspension of fundamental rights and freedoms in the HOA “constitutions”. 

This seems an acceptable trade-off for many homeowners in New America.

Read the complete commentary at Experiment.

Why should the NJ Constitution upset contractual understandings?

 

“Why should the NJ Constitution be invited to upset the contractual understandings that the members of this community have upon purchasing their condominiums and their townhouses?  These people buy-in because they don’t want the . . . .“

This question was asked by a New Jersey Supreme Court Justice during Oral Arguments in the Twin Rivers HOA constitutionality case in January 2007.  It is a very revealing question, reflecting the prevalent view within our society, but surprising when coming from a state supreme court justice.  It accepts the false premise that whatever private parties contract together should not be subject to judicial review and the constraints of the US Constitution.

Now, in part, the statement is correct if viewed solely as a previously agreed upon contract with stated obligations, since the Constitution clearly states,  “No state . . . shall pass any . . . law impairing the obligations of contacts . . . .”  Art I, Sec. 10.   Therefore, since the homeowner association Declarations are previously agreed to obligations, the state shall not “upset the apple cart”.  But, it is well-established legal doctrine that the state has the right under its police powers to regulate contracts, and has done so in all arenas except for planned communities with an almost sanctified religious deference and hands-off recoil.  Why the special treatment, also contrary to the US Constitution?

This question by the NJ Justice also reflects a broader, more serious issue that the Constitution is no longer the supreme law of the land.  That, when it comes to HOA Declarations of CC&Rs, private parties may contract to anything they want.   It is even more disturbing when this Justice clearly knows that the constructive notice doctrine binds the homeowner and that there is no explicit surrender of constitutional rights when it comes to the HOA supposed “contract”.  Just to what “contractual understandings” this Justice is speaking of had not been presented to the court, and reflects a personal opinion of the Justice and an abuse of discretion.

Welcome to the New America.

 

Right to Foreclose laws are supposedly good for HOAs, so why are fees increasing?

News stories are beginning to appear concerning foreclosures, yet homeowner associations are increasing fees to cover losses anyway.

We’ve been told by CAI lobbyists time and time again that HOAs need the right to foreclose because it isn’t fair for “good” people to pay for deadbeats.  Yet, it appears that some HOAs are not collecting their debts from foreclosure sales and are  increasing fees anyway.  We know this is the common scenario because the mortgage company gets the $$ first and is not concerned about second position HOAs.  The HOA must bid the mortgage balance plus thier debt in order to collect, getting out of owning the home by reselling for a price slightly higher than what they had paid.  But HOA boards are not equipped to handle this financial manipulation, or to assume risks in the event they cannot resell the home. So, they do  nothing.  Say what??? Why, then, do they need to foreclose??INTIMIDATION . . . EXCESSIVE PUNISHMENT . . . . CONVENIENCE . . .

HOA attorney instigation for attorney “money machine” fees . . . not HOA financial interests.

Please understand that, contrary to what the video homeowner says, fines and late payments are “bonuses” to the HOA — extras above and beyond the actual monies owed to the HOA.  And don’t forget the HOA attorney fees that often exceed 100% of the actual HOA debt.

When will state legislators wake up to the fact that they have been mislead by HOA lobbyists for years?

See 9News.com “Foreclosures” from Colorado on my video web page.  (Plays after short TV commercial).

See http://www.signonsandiego.com/news/metro/20071101-9999-1n1dues.html including many comments.

How servitudes (covenants) were used to legalize HOA powers

The following is taken from page 5 of  “THE MASS MERCHANDISING OF PLANNED COMMUNITIES:  HOW AMERICANS  LOST THEIR CONSTITUTIONAL & PROPERTY RIGHTS”, August 31, 2006, which is an analysis of THE HOMES ASSOCIATION HANDBOOK, Urban Land Institute Technical Bulletin #50, 1964 (This publication can be obtained from the Research Department of ULI for a  cost of about $180). 

It is Part I of the unpublished THE TRUTH ABOUT THE EMERGENCE AND QUIET ACCEPTANCE OF PLANNED COMMUNITES AND HOMEOWNERS ASSOCIATIONS  (See http://pvtgov.org/pvtgov/downloads/HOA_truth.pdf, 2006, viewed Dec. 10, 2007).

In this manner, the Handbook set the stage for HOA local autonomy which the courts have repeatedly upheld over the US and state constitutions  (See Constitutional Local Government eEditorials, December 2007).

 

The Necessity for Covenants Running with the Land 

TB#50 makes it very clear in Chapter 1 that the homes association, by definition, is tied to covenants running with the land:

[W]e have taken the position that no organization is a homes association unless provided for, in some manner, in the covenants, deeds, or other recorded legal documents which affect title to the land within the development.”[1]

[T]he right to membership in such an association is automatic [mandatory in today’s jargon] for every home owner because it cannot be withheld from an owner whose land is charged with the obligation to pay its assessments.”[2]

This bible for creating planned communities impresses upon its readers that the community’s source of income is from maintenance funds, the assessments, that are legally levied against the land by recorded covenants, which bind each and every owner as a lien against the land. Numerous pages then explain and inform of the necessity for properly worded covenants that run with the land be part of the recorded declaration in order to make the association’s assessments on these members legally binding. The collection of assessments is the life-blood of the HOA, its source of revenue just as the state collects taxes to pay for its operation.

This obsession with the acceptance and survivability of the planned community dominates any concern for constitutional protections of homeowner rights to the extent that foreclosure becomes a weapon of enforcement against non-payment of assessments. This enforcement tool (for a detailed discussion of foreclosure, see Foreclosure below) is available because,

Fundamental to the legal arrangement for a homes association is the covenant for assessments which must be made to run with the land so that the association can be assured of a continuing, legally enforceable source of maintenance funds.[3]

In this manner, making use of equitable servitudes and covenants running with the land, TB#50 has side-stepped any and all contract law elements relating to a proper meeting of the minds, misrepresentation, proper notice of the covenants and restrictions, sufficient due process with respect to any surrender of constitutional rights. All these issues are easily bypassed by the real estate doctrine of constructive notice, the posting to the county clerk’s office leaving it the obligation of average Americans seeking to buy a home to discover what the had agreed to when they took possession of their new HOA controlled home. Recording the declaration also“establishes a ‘uniform scheme’ of land use . . . which is mutually enforceable among the home owners and by the homes association as their representative.”[4]

[1] Chapter 1, “Is it a Homes Association or Isn’t it?”,  p.5,

[2] Id, p. 6.

[3] Chapter 23, “Affirmative Covenants”, p. 314.

[4] Chapter 12, “Setting the Legal Foundation”, p. 199.