Category: amicus civitas

friend of the state

Restructuring HOAs – intents and purposes

Mentoring: Purposes, intents, and mission of HOAs[1]

The larger HOAs, especially those that are planned master HOAs or resort style or active adult HOAs,[2] may contain explicit mission and vision statements as well as a declaration of values. Most other HOAs, also created as nonprofits, generally do not explicitly offer such statements. Here’s are shortened but typical examples of such statements used by an active adult, resort style HOA in Arizona.

Mission Statement:

To provide residents with a high-value community with resort-style amenities,

To maximize our investments.

Vision Statement: To become the premier active, age-restricted community in Arizona.

Values: We believe in a community culture having high standards and principles of conduct and behavior.

These boards of directors (BODs) believe that they are doing the right thing. Addressing nonprofit organizations, eminent management consultant Peter F. Drucker wrote: “The first job of the leader is to think through and define the mission of the institution.”[3] He makes the point that the worthiness of a mission statement lies in leading to “right action.” It has to be operational, otherwise it’s just good intentions. They set the policies that serve to guide the organization’s activities and conduct toward effective performance.

HOA contractual mission

We can ask: How are the HOAs doing with regard to accomplishing their mission? But first we must discover if the BOD is operating under its contractual CC&Rs obligations rather than adopted intentions. In HOA-Land, regardless of any explicitly adopted statements, all HOA nonprofits do contain a contractual statement of purpose and intent. They can be found in the CC&Rs usually in the opening paragraphs or in the articles relating to the duties, powers, etc. of the association.

In my sampling of CC&Rs of both large and small HOAs I found boilerplate wording that focused on “maintaining property values” or “for the overall development, administration, maintenance and preservation of the Properties.” Almost all, but not everyone, contain a statement directed toward the member: “shall inure [take effect] to the benefit of the member” [or “each owner”], and “be mutually beneficial.” I came across this one-sided statement: “intended to benefit the Association.” The most liberal and progressive statement of purpose mimics the Preamble to the Constitution “to promote the health, safety and general welfare of the residents of the Properties” (the general welfare clause). The inclusion of “health and “safety” are redundant in that “general welfare” includes these concerns.

Unlike other nonprofit organizations, the HOA comes with these contractual obligations and is not free to conjure up any mission that does not conform to the CC&Rs. What is quite clear is the absence of a frame of mind that addresses the requirement to benefit the members. The conduct, actions, intents and policies of the HOA must benefit the members just as our public government must serve the people.

Now it can be argued that that’s just what the CC&Rs and bylaws do is to benefit the members because of its enforcement powers, architectural guidelines, use restrictions, the right to fine, and the draconian right to foreclose. As Drucker maintains, the mission statement must lead to “right action,” which can only be such action that conforms to the HOA’s mission and leads to the effective and productive performance.

Best interests of their members?

Do the members really believe that their best interests lie with an authoritarian, contractual private government that denies fundamental and constitutional protections in the broadest applications of a deprivation of “life, liberty, or property without due process of law” and a denial of “the equal protection of the laws.”? I don’t believe so!

Yes, the above powers maybe necessary to maintain an orderly society, but where are the constitutional protections of the rights of a member that are required for legitimate and valid governmental powers?

Find out more about restructuring the HOA model and “inuring to the benefit of the member” in my sequel soon to follow.

 

Further reading:

 

References

[1] This is the first Commentary under the category of Mentoring. Mentorship is a relationship in which a more experienced or more knowledgeable person helps to guide a less experienced or less knowledgeable person. See About StarMan Group for credentials.

[2] I’ve classified HOAs as to resort style, retirement, and pure residential according to their CC&RS and operations and amenities. For a further discussion of types of HOAs, see Are there vibrant, competent, harmonious HOAs?; the CAI perspective, HOA-Land “one size fits all” injustice. The CAI 2005 survey showed 26.8% were resort and 44.3% were residential.

[3] Peter F. Drucker, Managing the Nonprofit Organization: Principles and Practices, HarperCollins (1990).

Restructuring the HOA model

This Commentary is a position paper on the need to restructure the HOA model of government.  It is not light reading and requires serious consideration and understanding  of the underlying issues.

Background

I have stepped outside the box to offer the boards of directors (BOD) a fresh view of the nature and legalities of the HOA legal scheme. StarMan Group HOA Management Consulting believes that the HOA legal model of government must be restructured to

establish the climate and culture of the HOA enabling the restoration of the lost constitutional principles of democratic government — individual rights, justice and fair play — for its members within the confines of a private contractual government,

In my activist 20 years of HOA reforms, irrational fears have been inculcated in the general public and are the primary elements for the failure to resolve 54 years of endemic HOA issues: fear of loss of home, fear of financial and emotional stress, fear of legal actions and lawsuits, fear of social isolation, and fear of property devaluation. These have been advanced by pro-HOA forces.

The current embodiment of a utopian society (HOAs) was formulated in 1964 (The Home Association Handbook) and CAI was created in 1973 to address the growing dissatisfaction with HOAs. In 1993 it dropped being a tax-exempt educational nonprofit to become a business trade group in order to more effectively lobby state legislatures to protect the status quo of the HOA model of governance.

The HOA model of local government is a fourth type of local government in addition to the public domains of commission, council-manager and council-mayor forms. I ask: Is there a legitimate, bona fide reason and justification for the HOA to function outside public government?   No, there is none!

BOD Reorientation to review the HOA mission

The restructuring of HOAs starts with the education and reorientation of the BOD to better achieve its primary, broad purpose which is to provide quality services to its members. The only statements or covenants relating to the intent or purpose of the HOA focus on the interests of and benefits to the members, and neither to investments nor to social welfare services. The BOD must face the question as to how the best interests of the members can be accomplished by a rejection of the US and state constitutions.

“Maintaining property values” cannot be taken as an investment in your home. The CAI model focuses on punishment and enforcement of violators of the governing documents or those who fail to timely pay their assessments. The governing documents (CC&RS and bylaws) contain restrictions and limitations and any rights or privileges that the members possess under the CC&Rs are laughable when compared to the Bill of Rights or state Declaration of Rights.

I firmly believe that the BOD must undertake a serious, in-depth review of the original intent of HOAs and where it is today and where it’s going. For example, surely an HOA is not a social welfare organization but a private membership nonprofit regardless of any misguided ruling by the IRS. This review must be conducted in an open and unbiased manner free from the years of CAI indoctrination by the CAI School of HOA Governance (my appellation), to which far too many BODs have long been a willing and obedient adherent. Being under the spell of the CAI doctrine, the BOD has lost its freedom of mind, has neglected principles of local government, and functions outside constitutional application.

BODs, in general, resort to CAI not for legal advice on how to run the HOA government but as a crutch to allow them to dodge their obligations to govern the people — their residents — living in the territorial subdivision of the planned community or condo. Why would CAI speak of or admit to the Bill of Rights or to state Declaration of Rights and lose control of the industry? Why haven’t they?

In addressing the management of nonprofit organizations, eminent management consultant Peter F. Drucker wrote: “The first job of the leader is to think through and define the mission of the institution.”  He makes the point that the worthiness of a mission statement lies not in its beauty but in leading to “right action.” It has to be operational, otherwise it’s just good intentions. “One of the most common mistakes is to make the statement [a series] of good intentions.”

CC&Rs are a devise to circumvent the Constitution

The recourse to the real estate laws of equitable servitudes giving legitimacy to the declaration of covenants, conditions and restriction has gone afoul with respect to HOA governments. “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.” The governing documents reflect the undue influence of the CAI School of HOA Governance, and the failure to accept the reality that the HOA is a de facto form of local government that functions outside the US Constitution.

The Homes Association Handbook model set the tone, the character, and the culture of the HOA “community” from which the boilerplate declarations flowed with the help of CAI lawyers. There are no public disclosures of the loss of individual property rights, or the legislative immunity granted to BODs, or the unjust elections procedures, or the absence of constitutional due process protections, or court rulings of implied waivers and surrenders of individual rights, just to mention a few.

It goes without saying that private HOA governments must be restructured to return to the Union and restore member rights, freedom, privileges and immunities. It can be done and must be done. Plessy v. Ferguson (163 US 537 (1896)) was overturned by the US Supreme Court fifty-eight years later in 1954 by Brown v. Bd of Educ. (347 U.S. 483 (1954)). So can years of unjust HOA Acts and statutes be overturned in the light of today’s knowledge and conditions.

And so, it starts with the review and restructuring of the purpose and intents of the HOA to establish a climate and culture of the HOA conforming to the principles of democratic government as required of all local government by the Constitution.

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Further reading:

 

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.

consulting SIG image1

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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

Is your HOA becoming obsolete?

The Wall Street Journal published a report by Laura Kusisto and Cassidy Araiza, “OK Boomer, Who’s Going to Buy Your 21 Million Homes?” (Nov. 23, 2019, only Available to WSJ subscribers).

This lengthy report warns of a drop in Gen Xers who are not expected to seek retirement homes, even adult active communities, and specifically speaks about Sun City among others. While not to be confused with Sun City West or Sun City Grand, the report broadly addresses the outlook of the “replacement” home buyers when the baby-boomers die off in the next 20 -30 years.

But the same demographics that propelled Sun City’s rise now pose an existential challenge to this suburb as baby boomers age. More than a third of Sun City’s homes are expected to turn over by 2027 as seniors die, move in with their children or migrate to assisted living facilities, according to Zillow. Nearly two thirds of the homes will turn over by 2037.

One in eight owner-occupied homes in the U.S., or roughly nine million residences, are set to hit the market from 2017 through 2027 as the baby boomers start to die in larger numbers.

The reporters add an explanation of what may lie ahead for members of retirement HOAs.

One problem is that the bulk of the supply won’t necessarily be in places where these new buyers want to live. Gen Xers and the younger millennials have shown thus far they would rather be in cities or suburbs in major metropolitan areas. They have little interest in migrating to planned, age-restricted retirement enclaves in sunnier corners of the U.S. lined with golf courses, community centers and man-made lakes.

The report continues by describing the steps taken by the Sun City HOAs to lessen the effect of this anticipated event. They include:

    • [reinventing] reinvent themselves by lifting age restrictions and adding amenities like playgrounds and schools in an effort to appeal to Gen Xers or millennials;
    • The development even has a “next generation” club for people like herself who are under 70 years old. “Their main export industry is selling homes to [older] people who are coming from more expensive parts of the country”
    • “Just the things that people who are 20 years younger take for granted that they’ll have,”
    • But some in Sun City are making adjustments they hope will be attractive to the next generation. the Sun City Home Owners Association, is posting pictures and videos of the community on Instagram and Twitter. She noted that local recreation centers now have Wi-Fi.
    • Sun City . . . is constantly remodeling and putting in upgrades like automatically opening doors and data ports.

State legislators have placed HOAs above the law

There are strong parallels between the shameful conduct of our elected officials in Washington and that of “elected” HOA boards, each made possible by the strong support of irrational, dogmatic cult followers. In turbulent Washington with the upcoming impeachment of trump, Congressional Democrats and some Republicans are staunchly upholding a fundamental principal of democracy: no one is above the law!

To allow any person or organization to operate above the law is to reject the US Constitution founded on representative democracy. In Washington there is the minority faction of Republicans and in HOA-Land[1] there is the a majority faction of homeowners who accept the conduct of the leadership, failing to recognize its wrongful and illegal conduct. By their active support, these authoritarian followers[2] are placing the leaders above the law. Cults exhibit a lack of any freedom of mind by their followers who blindly and irrationally submit to the will of the cult leader.

“What has this to do with state legislatures and HOAs,” you may ask. Plenty!

Over the years state legislatures, each and everyone, have by acts of commission and omission enacted special legislation — generally known as PUD, CID, HOA, POA, etc. Acts — for a special class of nonprofits that placed HOAs above the law. While granting and permitting broad de facto political governance over the residents of the HOA subdivision, HOA boards of directors, the directors themselves, the officers, and their attorneys and managers/firms are not subject to effective enforcement by the application of meaningful penalties.

There are none or hardly any provisions for the enforcement of the law that are substantial enough to serve as a serious detriment to continued HOA board violations of the law and their contractual obligations. This unconscionable state of affairs is the result of the failure to enact legislation to hold HOAs answerable to the law. It is the public policy set by the state legislatures, themselves, as found in their enacted laws to hold and place the HOA and its leadership above the law.

 

If Trump is not impeached and removed from office, there would be little hope that the state legislatures would feel compelled to honor their oaths to uphold the US Constitution and to hold HOA-Land to the laws of the land. The shameful conditions of HOA-Land statutes will continue with little fear of Congressional interference. Without the fear of enforcement – shared by HOA- boards — State legislatures would be given an enlarged “free ride” that violates the US Constitution.

 

Author’s note:  The public needs to stop being conned by “political correctness,” which is the real-world embodiment of Orwell’s Newspeak.

“Many can see the parallels and extensions of Orwell’s 1984 in the real 1984, and current world. In 1949 George Orwell published 1984 where the fictional Oceania (formerly known as England) is a totalitarian state that has instituted a new society designed for the survival of the country. . . . Thought Police (don’t speak out or question, or else); Doublethink, creating the ability of the people to hold and accept two contradictory thoughts at the same time; Newspeak, the official language, replacing English, that redefines words and concepts; Ministry of Truth, the agency of propaganda and historic revisionism; and the Ministry of Love, the agency of regulations and enforcement.”[3]

Political correctness is not ethical or moral correctness! It has been instituted in the US to support the government from attack or criticism. Its purpose is to intimidate the public, by social ostracization, from its right to free and open political free speech and discussion. And it has been very successful both in general and in regard to HOA members.

 

References

[1] Definition of HOA-LAND:  HOA-Land is a collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States. For more see, Defining HOA-LAND: what it is. (George K. Staropoli, HOA Constitutional Government.)

[2] See in general, “HOA political dynamics: totalitarian democracy.” George K. Staropoli, HOA Constitutional Government.

[3] George Orwell’s 1984 is alive and well in HOA-Land, George K. Staropoli, HOA Constitutional Government.