Category: Mentoring

Posts that are designed to educate and inform viewers without reference to any particular event or incident.

HOA constitutionality Plan supplement – BOD education

The Plan Toward Restoring the HOA Model of Governance[1] called for both a systemic restructuring of the HOA legal scheme and the need to reorient the BODs and legislators. The long ignored and inexcusable questions of constitutionality that continue to harm members and the greater communities across this country must be exposed, understood and accepted.

hoa-const.jpg

The above picture reflects the rewrite of the Preamble to the Constitution as applied to the HOA-Land nation. It reads,

“We the people of a private HOA, in order to protect property values, insure domestic tranquility, promote the general welfare, and secure the blessings of increased property values to ourselves and our posterity, do ordain and establish this Declaration for the United HOAs of America.”

Why is there a need for board of directors education on HOA constitutionality? Why? Because:

  • HOAs are a form of local government not subject to the Constitution, and have created divisiveness and a separation from the greater public community resulting in member confusion regarding the law and their constitutional rights and protections;
  • the national lobbying entity, CAI, has indoctrinated the legislators, the courts, and the public with its CAI School of HOA Governance program that contains just lip service to constitutional questions, for example,

“A global nonprofit 501(c)(6) organization, CAI is the foremost authority in community association management, governance, education, and advocacy. Our mission is to inspire professionalism, effective leadership, and responsible citizenship—ideals reflected in community associations that are preferred places to call home.”[2]

while opposing the application of the Constitution in its numerous amicus curiae briefs to the courts, for example,

“In light of these statutory, contractual and common law standards protecting the interests of community association members, they need not claim constitutional protection from the conduct of governing boards to exercise their rights with respect to the associations.”[3]

  • The Findings, Section II, Education for Homeowners Associations and Board Members, of the North Carolina HOA study report to the NC General Assembly recommended,

“In order to provide accurate and readily available resources to educate homeowners, board members, and interested persons about the duties and responsibilities of property ownership in an HOA community, the General Assembly . . . to seek reliable and unbiased information available from private entities . . . and provide for published and online documents and programs offering HOA education . . . .”[4]

  • Privatopia: Homeowner Associations and the Rise of Residential Private Government, the 1994 landmark book based on the research of UIC Prof. McKenzie, and highly appropriate today, called the reader’s attention to,

“CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local governments.

“In a variety of ways, these private governments are illiberal and undemocratic. Most significantly boards of directors operate outside constitutional restrictions because the law views them as business entities rather than governments. . . . [They] are inconsistent not only with political theories of legitimacy but with the normal process by which governments are created. . . . Thus these ‘private governments’ may violate the equal protection clause of the Fourteenth Amendment.” (Chapter 6).

  • A Table of Authorities,[5] not all inclusive, supporting the Restoring the Lost Constitution.
  • Unanswered questions on HOA constitutionality:

CAI Common Ground Editor Durso mentioned my 2006 “‘open e-mail questionnaire to CAI’ containing four questions.”  Below is a copy of those questions initially addressed to the AZ Legislature a year earlier.  I never had any answer, either from the Legislature or CAI, nor any debate on the issues.

In a 2011 email to the North Carolina Legislature House HOA Committee I asked, “the legislators, the public interest organizations and policy makers to consider the following questions.” And I concluded with, “I await your reply, or a reply from any of the legal-academic aristocrats.”[6] Still no answer.

    • Can a legislature delegate its functions, not government services but functions, to private entities without oversight or compliance with the Constitution, as required of all government entities?
    • Can private parties enter into contractual arrangements using adhesion contracts and a constructive notice consent that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?

 A webinar is in the plans that summarizes and follows the materials – the text — comprising the HOA educational series to reorient HOA boards and the public in general. The text is available online under the collection, “Restoring the Lost Constitution to HOA-Land.” Will be coming soon.

Notes

[1] See https://tinyurl.com/sr27yq3.

[2] About Community Associations Institute, April 4, 2020). https://finance.yahoo.com/news/community-associations-institute-cai-provides-181931116.html. April 4, 2020).

[3] CAI amicus brief, Jan. 3, 2013, Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014).

[4] “Study On Homeowners Associations”, Luke A. Rankin, Chair, South Carolina General Assembly (December 18, 2015). (http://www.scstatehouse.gov/CommitteeInfo/HomeownersAssociationStudyCommittee/HOAStudyCommitteeFinalReport12182015.pdf). April 27, 2020).

[5] http://starman.com/m…/restructureHOA/restructure-reading.pdf.

[6] See Too hot for NC HOA committee – withdraws legal-academic “experts, George K. Staropoli, HOA Constitutional Government (Nov. 17, 2011). https://pvtgov.wordpress.com/2011/11/17/too-hot-for-nc-hoa-committee-withdraws-legal-academic-experts/

HOA board education in constitutionality

HOAs have, as local private governments are not subject to the Constitution, created divisiveness and a separation from the greater public community resulting in member confusion regarding the law and their constitutional rights and protections. StarMan Group presents an online educational series, with numerous authorities, to instruct HOA boards in regard to their obligations “in the best interests of the members”.

This HOA educational series to reorient HOA boards and the public in general is available online under the collection, “Restoring the Lost Constitution to HOA-Land”:

1) HOA Common Sense: rejecting private government, a summary of 6 constitutional defects,

2) The HOA-Land Nation Within America, presenting the scope of outlaw private governments that deny constitutional protections,

3) The Plan to Restructure the Model of HOA Governance that advances an approach to restore the Constitution to HOAs while keeping the desired benefits of the “real estate package,” and

4) Establishing the New America of Independent HOA Principalities,” a history of the HOA scheme.

For a historical perspective of HOA-Land, see: 1) The Homes Associations Handbook (ULI, 1964). (Not publicly available but I have a copy of the 434 page document); 2) Privatopia: Homeowner Associations and the Rise of Residential Private Government (1994), Evan McKenzie; and 3) Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing (2000), Donald R. Stable. (ULI and CAI production).

Restoring the lost Constitution to HOA-Land

Some 23% of Americans live in HOA-Land, that collection of fragmented independent principalities known, in general, as HOAs. Overwhelmingly their members swear by the HOA as the next best thing to Mom’s apple pie. It is hard to accept this undying loyalty to the HOA and its board of directors in view of the fact that their acceptance of HOAs is the result of an intentional indoctrination by national lobbying, business trade group that, in my mind, does not know how to spell “constitution.. Obviously then, those CAI surveys are suspect.

HOAs are separate, local private governments not subject to the constitution, and collectively constitute a nation within a defined geographical region known as the United States. “A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.”

“Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. 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.”

To provide the ignored but important and substantial aspects of the HOA legal scheme I have designated three books by StarMan Group under the collection, “Restoring the Lost Constitution to HOA-Land.” They are 1) HOA Common Sense: rejecting private government, a summary of 6 constitutional defects, 2) The HOA-Land Nation Within America, presenting the scope of outlaw private governments that deny constitutional protections to HOA members, and 3) The Plan to Restructure the Model of HOA Governance that advances a plan to restore the Constitution to HOAs while keeping the desired benefits of the “real estate package.” (All the above can be found on Amazon.com).

For a historical perspective of HOA-Land, see:

  • The Homes Associations Handbook (ULI, 1964). Not publicly available but I have a copy of the 434 page document).
  • Privatopia: Homeowner Associations and the Rise of Residential Private Government (1994), Evan McKenzie.
  • Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing (2000), Donald R. Stable. (ULI and CAI production).

(All the above, except for the Handbook,  can be found on Amazon.com).

Plan to Restructure HOA model

The updated and revised Plan Toward the Restructuring the HOA Model of Governance — a single file of the series of posts on HOA Constitutional Government — is now available.  It contains revised Table of Authorities and a new Selected Case Histories segment that excerpts findings and decisions by the courts.

Read it in PDF at https://tinyurl.com/sr27yq3.

restructure cover

 

 

Reorienting the HOA board – fair elections

Mentoring: Reorienting the HOA board – fair elections

I cannot overstate the profound damaging effect of the boilerplate CC&Rs covenants – the HOA-Land fair elections doctrine — that define the highly inadequate process and procedures alleged to be fair elections and approved by the member. In a democracy, the fair elections doctrine is the means for the expression of the will of the people and the consent to be governed by the HOA’s members. It is the fundamental basis for a valid consent to be governed. Unjust BOD biased election procedures deny the legitimacy of the HOA-Land doctrine.

In Dublirer the NJ Supreme Court held,

Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. . . . [Dublirer’s] message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values. . . . We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.[1]

In California the appellate court held,

A homeowners association board is in effect ‘a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government’ (citing Cohen v. Kite Hill Community Assn).”[2]

Democracy Web[3] clarifies the importance of fair elections in a democracy.[4]

If consent of the governed is the most fundamental concept of democracy, its most essential right is that of citizens to choose their leaders in free, fair, and regular elections. Other rights are necessary to democracy; elections by themselves are insufficient. Yet the right to freely elect one’s representatives and to influence the political direction of one’s government is democracy’s indispensable political foundation.

Without free elections, there is neither the possibility for citizens to express their will nor the opportunity for citizens to change their leaders, approve policies for the country, address wrongs, or protest the limitation of their rights. Elections establish the citizenry’s and the individual’s political rights. They are the ongoing representation of the consent of the governed

As it stands HOAs cannot be described as a democracy, or a democratic business as CAI’s Tom Skiba(CEO) alleged,[5] so long as the current fair elections doctrine remains in place.

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis.

In an unbelievable doubletalk and excellent example of the pot calling the kettle black and Orwell’s DoubleSpeak, Skiba asserts,[6]

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable. . . .

I for one prefer the democratic principles that have served this country for more than 230 years, as frustrating as the process can sometimes be, rather than the various failed alternatives washed up on history’s shores.

In addition, while the appellate court upheld California’s HOA fair elections statutes,[7] the California CAI Legislative Action Committee opposed the decision in support of democratic functions in HOAs.[8]  And not unexpectedly, this “front-line” position is in conflict with the CAI policy:

Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community. Numerous other owners or residents  serve on committees and help with special tasks as they arise.”[9]

Simply unbelievable! Believable!

State legislation to reform HOA fair elections

I am well aware, and you may raise the fact, that state laws and CC&Rs vary quite a bit in regard to voting and director elections. Some say very little except quorum requirements and secret or mail-in ballots; some require independent elections committees and vote counters, or the right to view the ballots, etc. but they all hold true to the Handbook that places strong control within the hands of the BOD. This is especially true when the BOD must approve candidates or propose amendments or rules without real member participation and voice.

Attempts to correct these injustices are found in many states. I am pleased to see that 2 legislators (Assemblyman Bob Andrzejczak and Bruce Land) in the NJ Assembly understand HOA constitutional issues and have sponsored a bill, A-3163 (2013), accordingly. The Cape May County Herald[10] reports,

Homeowner’s Associations must operate under similar rules and procedures as other governing bodies,” Andrzejczak said.  “A resident’s interest and right to approve and elect board members must be preserved. And setting clearer, more fair and unified set of rules for board elections and a clarifying a resident’s ability to recall will help to do just that.

Homeowners living in developments are still consumers and must be protected under the law,” said Land. “Ensuring their right to fair elections and protecting their right to choose board members, who will make decisions on their behalf, is a measure of consumer protection that they simply deserve as property owners.

California’s SB 323 (2019) fair elections bill was made law stating, in part,

A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association. . . . Section (b) is modified to read, “A member who prevails in a civil action to enforce the member’s rights . . . the court may impose a civil penalty of up to five hundred dollars ($500) for each violation.”

Arizona’s SB 1412, making progress at the legislature, also seeks political content protections in HOA politics. It 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 . . . .”

Why are these unjust and unconstitutional covenants, conditions and restrictions allowed to stand?   The misguided mission and vision statements meant to deceive; the failure to act in the interest of the members; the failure to reject the business judgment rule[11] that serves to protect the BODs over the rights of the members; and the employment of the inequitable HOA fair elections doctrine that deny a genuine consent of the governed.

The answer is obvious to those willing and able to handle the truth. The vast majority of the members have lost their freedom of mind.[12] They appear to be RWA followers[13] of the authoritarian[14] BOD. They have been thoroughly indoctrinated into the teachings of the CAI School of HOA Governance[15] where real estate attorneys provide advice on how to run the HOA and what’s good for the community.

All the more reason for this seminal position paper, Restructuring the HOA Model of Governance. All the more reason for a restructuring of the HOA model and a reorienting of HOA directors and officers to return lost constitutional principles.

 

Notes

[1] Dublirer v. 2000 Linwood Avenue Owners NO. 2011 069154 (N.J. 2014).

[2] Damon v. Ocean Hills, 102 Cal.Rptr.2d 205 (2000).

[3] Democracy Web emerged from the longstanding effort of the Albert Shanker Institute (ASI) and its founding organization, the American Federation of Teachers (AFT), to foster education for democracy in America’s schools. (Scroll down to About).

[4] Democracy Web,  scroll down to Essential Principles.

[5] Tom Skiba, Community Associations Institute Blog, Ungated, April 2, 2008.

[6] Id.

[7] Wittenberg v. Beachwalk HOA,  NO. G046891 (Cal. App. 4th Dist. June 26, 2013).

[8] “Appeals Court Ensures Equal Access During Elections”, Blog of the Community Associations Institute California Legislative Action Committee, July 9, 2013.

[9] Section 8 in An Introduction to Community Association Living (2006),

[10] Herald.com (Cape May County NJ, Dec. 8, 2016).

[11] See Reorienting the HOA board: business judgment rule in the Plan.

[12] See “Cultural Dynamics of HOA-Land,” The HOA-Land Nation Within America (2019); HOA Social Dynamics — Freedom of mind pt. 1 (2020) George K. Staropoli.

[13] Robert Altemeyer, The Authoritarians, (2007).

[14] See HOA political dynamics: totalitarian democracy, George K. Staropoli (2019). “Followers submit too much to the leaders, trust them too much, and give them too much leeway to do whatever they want–which often is something undemocratic, tyrannical and brutal.” See survey on HOA authorianism,

[15] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.