Deborah Goonan[1] speaks out:
“As explained in a previous post Recipe for HOA abuse: too much power, no accountability, across the nation, housing consumers are fed up with HOA bully boards, often driven by predatory management agents and community association attorneys, all under the guise of “protecting property values.”
Notes:
HOA owners, advocates and activates still don’t understand that they are and remain a fragmented group of individuals with similar HOA issues and problems, up against a united opposition headed by CAI. They stand, as a group, in the same shoes as employees did at the turn of the 20th century until the Feds stepped in and legalized opposition groups of employees into unions.
Some still believe unions were and are bad, but that is beside the point. HOA owners need federally protected rights to oppose the HOA corporations. Let’s use the term, ”HOA Homeowners Community Association.” But, that won’t happen until owners can unite at least for the purpose of federal protection. Otherwise, the good efforts of the many who publicize are just spinning wheels – the decision makers are well aware of the many, many, common problems.
See my 2013 post, Organize, organize, organize, but organize your local HOA, on organizing at the local level – the HOA. Just expand that into a federally protected right to organize. See also, my 2014 post, Proposed US Constitution amendments will help HOA reforms on Supreme Court Justice Stevens’ proposed constitutional amendments.
With the new year looming, and the Imperial Trump controlling the Republican party, and the Republicans controlling the US Senate, nothing new will occur. No charges against Trump, or new HOA laws of substance will occur without the Senate’s approval.
Just the facts.
Deborah Goonan, in her blog post, Independent American Communities by Deborah Goonan, quoting the article, Do Voluntary Civic Associations Have Authority to Enforce Their Covenants and Restrictions Over Real Property? raises a very important subtle issue of distinction — powers of voluntary HOAs over nonmembers.
While homeowners with a voluntary HOA well understand that they are not required to pay assessments, they presume that they are not subject to the enforcement of CC&Rs by the HOA. Deborah quotes from the article, my emphasis, “Usually when an association is labeled “voluntary” it means the payment of dues and assessments by its members is voluntary, not the obligation of owners to abide by the covenants and restrictions.”
The article makes the argument that the voluntary HOA, where given power by the state, can enforce the CC&Rs, not its rule and regulations or fines, or anything else pertaining to its members. In order to enforce its “rules” on nonmembers, the HOA must first amend the CC&Rs, which requires a vote of all the homeowners. Nonvoluntary HOAs use the term “members” since all lot owners are members, while the amendment procedure for voluntary HOAs usually refers to all “lot owners.” Big distinction!
SO, if the HOA comes knocking, check these requirements out. If the HOA does not meet these requirements, any legal suit can be denied as having no standing, or legal right, to sue.
With the confirmation of Brett Kavanaugh as a Supreme Court Justice, the US joins the list failed democracies, not by revolution or coup d’état, but by the slow decay and corruption of its democratic institutions and norms. In their book, How Democracies Die,[i] the authors wrote,
Democracies may die at the hands . . . of elected leaders . . . who subvert the very process that brought them to power. . .. More often, though, democracies erode slowly, in barely visible steps.
Elected autocrats [and parties who] subvert democracy – packing and ‘weaponizing’ the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents. Democracy’s assassins use the very institutions of democracy — gradually, subtly, and even legally – to kill it.
And this is just what happened with the Kavanaugh vote. Not being in the majority, the Democrats could do nothing but hope several Republicans broke rank and voted no. This did not happen.
Would you want Kavanaugh to be the deciding vote on your life-death case that involved controversial political positions?
In my January 2018 post, HOA-Land: the product of the decline in democratic institutions in America, I argued that HOA-Land was the result of this slow death of democracy. Deborah Goonan makes a strong case for the trickle down effect of the death of democracy on HOA due process. Her lengthy and highly informative post, Does an HOA respect your due process rights? Don’t count on it., goes into a detailed analysis of the Hearing and relates it to HOA due process. She writes,
It’s sad to say that America’s association-governed communities operate under the same dysfunctional and divisive politics — with the exception of occurring at the local level rather than the national level.
The common boiler plate in CC&Rs shortens the requirements for due process to simply, “an opportunity to be heard.” But, Deborah writes,
But due process, as understood in the context of the U.S. Constitution and centuries of law going back to 16th Century England, is intended to offer greater protections for the accused, ensuring a fair hearing of the issues before a disinterested third party, and, preferably, a jury of one’s peers.
She quotes from LegalDictionary.net, constitutional due process means
The right to an unbiased trial
The right to be given notice of the proposed trial and the reason for it
The right of the individual to be aware of evidence against him
The right to cross-examine witnesses for the opposition
The right to present evidence and call witnesses
The right to be represented by counsel
The effect on HOA due process, and on other issues of private rights, is to signal to rogue HOA boards that they can do as they please so long as it supports HOA-Land according to the CAI School of HOA Governance. It says to the HOA boards, the government is behind you and will ignore the Constitutional and Bill of Rights as it pleases.
Who can stop it? No one but a strong turnout by the people, who still believe in America as a democracy, in the upcoming elections.
Note
[i] How Democracies Die, Steven Levitsky & Daniel Ziblatt, Crown Publishing, 2018. Based on their research into democracies, internationally and historically, the authors make the case that the long-term decline in democratic norms and institutions has given rise to demagogic leadership.
HOA Constitutional Government 