As I’ve repeatedly written here,[1] the fundamental justification for the validity of the HOA CC&Rs (declaration of covenants, conditions, and restrictions) resides in the highly controversial doctrine of a bona fide consent to be bound.
Edwin Meese III explains that the “Will of the majority” is a political mechanism for decisions to be made by the government:
The “consent of the governed” stands in contrast to “the will of the majority” . . . consent is the means whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate [and hence just] is whether that government rests on the consent of the governed. . . . Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens.[2]
Prof. Randy Barnett wrote;
A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority …. A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the HOA amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.[3]
This doctrine raises the issue of ‘the tyranny of the majority’ when the minority is not given due respect nor the ability to freely and equally speak out on HOA governmental issues. The structure of HOA governance is not based on and contradicts fundamental American principles and traditional values.
The legitimacy of consent
Allow me to clarify the concepts of “the will of the majority” and “majority will,” with the “consent to agree.” While my discussion deals with our constitutional system of government, it applies to the private, de facto HOA system of government as well. Both claims to be representative democracies where the citizen-member agrees to be bound by a constitution (CC&Rs) and the decisions of their representatives, supposedly acting in their behalf.
As we are well aware, a citizen-member is held to be bound by the will of the majority as evidenced by means of a vote of approval even though he himself did not approve or vote. Yet a majority vote construed as the will of the people is antithetical to a government of the people. “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” It is a practical solution for a government of the people to be able to function, but the solution is contrary to a government of the people.
It is a mechanism to overcome a defect in the philosophical meaning of a democracy that takes the position that an individual’s minority vote is a tacit (implied) consent to be bound by the majority position. That goes for all constitutions or CC&Rs, or amendments, or to any other contract requiring the approval of a group of individuals.
In general, tacit consent fails because it turns the very notion of consent on its head. Since the goal of consent theory is to ensure that government derives its authority from the conscious choice of the individuals it is to govern.[4] (My emphasis).
Agreement to be bound in HOA-Land
In HOA-Land,[5] tacit consent rules the roost! The national pro-HOA lobbying entity Community Associations Institute (CAI), the state legislators and the courts all have upheld the tacit consent legal doctrine as binding. In opposition, Keith Wittington speaks on the concept of popular sovereignty,
“Tacit consent purports to provide a rationale for obligating those of us, by chance or choice, have not made their approval of the government explicit. . . . Perhaps most significantly, we are taken to have consented tacitly to government action if we continue to vote for government.”[6]
Consequently, when your HOA says the majority rules since it represents the will of the owners just remember it’s just a means to grant the board the authority to govern. Representative democracy does not reflect the will of the people. Too easily the BOD, the government, rules as if it were the sovereign ignoring any responsibility to represent the genuine collective views of the people.
This is accomplished by rigging the HOA rule making and election processes that make no attempt to be fair and just procedures that reflect the will of the people as honestly as possible. It cannot say it truly attempts to represent any dissenting individual’s wishes, desires or views.
Intent of Commentary
I write this Commentary in the hope that HOA members will understand the true nature of the HOA governmental structure, which is not democratic; in the hope that they will no longer fall prey to the falsehoods of a democratic government and not accept that the BOD is here to help the HOA succeed in the best interests of the members. The BOD has assumed the position of sovereign and, like an emperor or king, can do no wrong if the members allow it.
References
[1] George K. Staropoli, “HOA representative government and consent of the governed”, HOA Constitutional Government (2019); “HOA Common Sense: rejecting private government (2013); “Buyer ‘Truth in HOAs’ Disclosure Agreement”, HOA Constitutional Government (2011); “’The Invisible, yet binding, HOA “agreements’”, HOA Constitutional Government (2007).
[2] Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.
[3] Randy Barnett, Restoring the Lost Constitution, Princeton Univ. Press, (2004).
[4] Keith E. Whittingham, “Chapter 5, Popular Sovereignty and Originalism,” Constitutional Interpretation, Univ. Press of Kansas (1999).
[5] See Citizens For Constitutional Local Government: The national pro-HOA lobbying entity Community Associations Institute (CAI), the state legislators and the courts all have upheld this
[6] Supra n. 4.
HOA Constitutional Government 