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.

Authorities for protected HOA political speech — SB 1412 poll

In regard to Arizona’s SB 1412 seeking free political speech with regard to HOA governance issues, please see the following Commentaries containing relevant court opinions and California bill, SB 323, passed into law last year. Don’t forget about the important references — endnotes — found in these Commentaries.

Take the HOA public issues poll in confidence. Complete privacy. I don’t get name or email address, so take the poll today!

  1. Political free speech both without and within the HOA (2018).
  2. NJ Supreme Court upholds constitution against HOA free speech electioneering violations (2014).
  3. CA SB323 a model on fair elections for all states (2019).
  4. courts hold HOAs as political second governments with public issues (2009).
  5. Protecting HOA political free speech on matters of general community interest (2015). Applies anti-slapp laws protecting HOA free speech.

 

 

AZ SB 1412 reflects move to HOA constitutional reforms

ALERT to Arizonans — SB 1412 seeks to prohibit HOAs and condos from restricting political free speech. Members are permitted to associate, meet, discuss, show signs regarding political activity.  Key wording:
“AN INDIVIDUAL MEMBER OR GROUP OF MEMBERS MAY ORGANIZE TO DISCUSS OR ADDRESS PLANNED COMMUNITY BUSINESS, INCLUDING BOARD ELECTIONS OR RECALLS, POTENTIAL OR ACTUAL BALLOT ISSUES . . . .”
GET INVOLVED!  Don’t let CAI dump this CONSTITUTIONAL RIGHT enjoyed by citizens outside HOAs!  Post on your blogs. Contact the committee chair and members  NOW!  Assigned to Senate GOV under D. Farnsworth.
Here are the GOV committee emails:

Dfarnsworth@azleg.gov; sborrellli@azleg.gov

Lalston@azleg.gov; Vleach@azleg.gov; Jmendez@azleg.gov; fpratt@azleg.gov; vsteele@azleg.gov

LET YOUR LEGISLATORs KNOW WHERE YOU STAND ON RESTORING CONSTITUIONAL RIGHTS FOR HOMEOWNERS. Take the poll on the left panel today!

HOAs are in need of a major restructuring

Whether you like your HOA, or dislike your HOA, is immaterial. It’s all about the Constitution and the HOA legal scheme. What matters is whether the HOA legal structure is a danger to the country, because it will happen again. And none of us can have confidence, based on the historical record, that it will not happen again because . . . every day it is allowed to continue at will.[1]

It is well past the time for a restructuring of the HOA model of local government formulated some 56 years ago by ULI in 1964 — The Homes Association Handbook. In 1973 CAI was formed to deal with the persistent problems facing the HOA model, and in 1992 CAI was forced to change its educational tax-exempt status to that of a business trade group in an attempt to deal with the continued problems with HOA.[2] In 2005 it had to drop HOAs as a member due to conflicts with the purpose of a business trade group — HOAs are consumers of CAI services.

These HOA problems and issues are endemic to the legal model of unconstitutional, private governments as a result of the intents and motivations behind the introduction of HOAs: to make $$$ by means of a mass merchandising effort.[3] Constitutional considerations were ignored and avoided by focusing on the legalities of real estate law and equitable servitudes to justify the legal authority over the HOA members. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.

There is no denying that the HOA subdivision managed by competent boards and professionals appeals to the desires and wants of home buyers and bring many benefits. It comes as no surprise that the vast majority of persons living in an HOA approve and love their HOA, finding only minor problems with the board of directors or HOA managers. The annual “satisfaction” surveys produced by the pro-HOA trade group, CAI, reflect this positive attitude.

However, the HOA legal structure and scheme is authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law.

But the HOA is truly a totalitarian democracy. A totalitarian democratic state is said to maximize its control over the lives of its citizens by using the dual rationale of general will (i.e., “public good”) and majority rule.[4]

Prof. McKenzie wrote in 1994: “HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[5] The authoritarian nature of HOA-Land is masked by a thorough indoctrination that presents a false picture of the real estate subdivision as democratic, inappropriately named a community, simply because the members are allowed to vote, as meaningless as it is.

The HOA danger to the Constitution has been presented in several Commentaries herein, and in the white paper found in the book, The HOA-Land Nation Within America.[6]

There is no denying that the HOA subdivision managed by competent boards and professionals appeals to the desires and wants of home buyers and bring many benefits. However, as this whitepaper addresses, the means to this end are highly suspect and harmful to our democratic system of government.

StarMan Group, HOA Management Consulting, offers a program to resolve many of the substantive defects with HOAs by means of the complete restructuring of the model: a program of organizational development. It also requires the removal of the adverse influences by the CAI School of HOA Governance as I collectively refer to CAI’s policies, best practices, guides, communications, seminars and certifications, and in its Manifesto.[7]

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References

[1] Rep. Schiff’s (Rep. Adam Schiff is the leading Democratic impeachment prosecutor), opening argument Friday, Jan. 24, 2020, appealing to the Senators to uphold the Constitution. “Whether you like the president, or dislike the president, is immaterial. It’s all about the Constitution and his misconduct. What matters is whether he is a danger to the country, because he will do it again. And none of us can have confidence, based on his record, that he will not do it again because he is telling us every day that he will.”

[2] See in general: Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994; Donald R. Stabile, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing (funded by CAI and ULI).

[3] See in general, “Analysis of The Homes Association Handbook,” George K. Staropoli (2006).

[4] George K. Staropoli, The HOA-Land Nation Within America, p. 22 (StarMan Press 2019).

5 Supra n. 2, Privatopia.

[6] Supra, n.4, p. 4.

[7] Community Next: 2020 and Beyond (May 5, 2016).  A manifesto is a public declaration of intentions, opinions, objectives, or motives, as one issued by a government, sovereign, or organization. A white paper is an authoritative report or guide that informs readers concisely about a complex issue and presents the issuing body’s philosophy on the matter. It is meant to help readers understand an issue, solve a problem, or make a decision.

 

About StarMan Group Consulting

StarMan Group, LLC (short for Staropoli management) was founded by George K. Staropoli in 2000 as a management consulting organization specifically for homeowner associations. It became quite clear almost immediately that any effective management consultant had to first deal with the contractual legalities of HOAs – their governing documents consisting of CC&Rs, bylaws and rules and regulations as well as state laws (HOA, CID, POA, Condo, etc. “Acts”).

Consequently, almost 100% of the time was spent on educating the HOA boards and members, the public, the media, and state legislatures. It involved extensive lobbying efforts before the Arizona state legislature as well as in other states; establishing several online blogs to disseminate information; and the publication of several books arguing that HOAs were unconstitutional private governments. In 2013 Staropoli was a successful co-plaintiff in Staropoli v. Arizona that resulted in an HOA law declared as unconstitutional.

At this point in time, 2020, after 20 years of exhaustive research, including studying hundreds of federal and state appellate cases, into HOA events, documentation, CAI communications and studying many HOA CC&Rs, Staropoli has become a nationally recognized homeowner rights advocate. He believes that HOAs are unconstitutional private local governments supported and encouraged by cooperating state legislatures.

He is confident that the existing legal structure and state laws need to be dramatically altered to remove 40-plus years of problems. His long-term plan is to apply organizational development (OD) principles and methodology to correct this long standing affront to the US Constitution. For various reasons, as explained in his publications, the majority of HOA members and legislators have not been receptive to constitutional reforms.

A description of OD as applied to HOAs can be found under StarMan Group Consulting. In short,

Leaving aside the questions of legality, which would need to be addressed as part of any OD effort, the mission for HOA OD consultants is,

  • to return the climate and culture of the HOA to where its members are able to re-identify with the values, beliefs, principles, and purposes of healthy and desirable communities functioning within the larger society of the municipality and the state; and
  • to remove the very strong external influences of the special interest vendors and lobbyists that are the primary causes of this deviation from the general societal norms and values.

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* * * *

Curriculum vitae

George K. Staropoli received an MS in Management from NYU Tandon School (formerly Brooklyn Polytechnic) where he studied organizational development. In NYC, he was formerly a VP at a major international securities form, and founded and managed a successful software firm before entering into management consulting here in Arizona. Currently, he also provides legal information research services on HOA issues, cases and statutes based on his extensive 20-year research.

Staropoli served as a director for an HOA (PA), Data Processing Management Assn (NYC), and Valley Citizens League (AZ). He is a member of ACLU, The Heritage Foundation, The Federalist Society and The National Parks Foundation.

He held an Arizona real estate license and was a certified Arizona Legal Document Preparer (paralegal) after taking law courses at Phoenix College.

Details of Staropoli’s 20-year involvement with HOAs can be found online at:
http://pvtgov.org Citizens for Constitutional Local Government
https://pvtgov.wordpress.com HOA Constitutional Government – editorials and commentaries on cases, events, incidents

CAI gets it wrong on HOA constitutionality

In keeping with the  highly controversial question in Washington of upholding the US Constitution as the supreme law of the land, advocates and HOA homeowners should look to the highly controversial question of the constitutionality of the HOA legal scheme. While much has been said on both sides, most of you including the BODs of HOAs who should know better, do not have all the facts regarding the true position of the national HOA lobbying organization, Community Association Institute (CAI). It actively lobbies, uses propaganda to advance its personal agenda, promotes, supports and protects this legal structure and scheme. Let’s take a closer look at what CAI stands for.

As a result of repeated arguments of the unconstitutionality of the HOA legal scheme, CAI was forced to address the question of HOA private governments operating outside the Constitution. In its CAI Press Release (Oct. 7, 2015)[1] CAI attempted to defend its secessionist position with reference to its amicus brief advice to the NJ Appellate Court in 2006[2] (890 A.2d 947 (App. Div. 2006)), which stated in relevant part:

In the context of community associations, the 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 . . . . (p. 21).

The business judgment rule is the correct standard for reviewing community association board decisions. (p. 4)

In addition, the press release goes on to say (emphasis added),

Contrary to conventional wisdom, Americans do not waive their constitutional rights when they move into a community association. In fact, courts have found that community association residents, by enacting reasonable rules for their own communities, are actually exercising their constitutional rights of association, contract, expression and assembly.

I posted a rebuttal, “CAI maintains HOAs do not violate the Constitution.”[i] Suffice it to say that the above says it all. In short, 1) contrary to the above, courts have upheld waiver or surrender of rights, even asserting implied surrenders and 2) CAI avoids addressing the questions of a valid consent to be bound or agree, the criteria to pass judicial scrutiny regarding the constitutionality of laws and contracts. Like with Trump, there is no defense the controversial claims of mini-government and quasi-government, but just questionable assertions.

It becomes imperative to draw attention of HOA boards to CAI’s strong, misguided influence over state legislatures and the courts to restore the protection of the Constitution to homeowners living in HOAs. The boards have a fiduciary duty to the membership who are still citizens of the US. HOA boards must recognize CAI’s secessionist position that has distorted the valid and worthwhile purposes and objectives of the HOA model, and take steps to divest themselves of its influence that serves CAI’s personal agenda.

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References

[1] Homeowner Rights and the U.S. Constitution, “CAI News Release” – online (Oct. 2015).

[2]   CBTR v. Twin Rivers, 890 A.2d 947, (NJ Super. App. Div. 2006)),

[3] CAI maintains HOAs are protected by and do not violate the Constitution — not so! George K. Staropoli, HOA Constitutional Government (2015).