Category: Opinion

Posts by GKS

HOA Common Sense, No. 6: Fair and just hearings

Fair and just hearings, No. 6

What is meant by “fair and just hearings”?  The HOA attorneys tell you it’s “after notice and an opportunity to be heard” as found in almost all CC&Rs and in the vast majority of state HOA laws. This simple statement is a contractual provision and law as applied to HOAs, but it is not what the US Supreme Court holds as procedures meeting the Constitution’s and the 14th Amendment’s due process requirements.  HOA members have been shortchanged!

As a private entity, HOAs are not subject to the Constitution and are not required to establish justice, which is a goal not found in any CC&Rs ‘constitution,’ but found in the Preamble to the US Constitution. Was this important fact explained to you when you bought into an HOA with its dream home?  Why not?

US Appeals Court Judge Henry Friendly in his well-regarded article, “Some Kind of Hearing,” generated a list that remains highly influential, as to both content and relative priority:[i]

1. unbiased tribunal [independent ‘judges’]

2. notice of proposed action and grounds asserted for it [document showing all the rules]

3. opportunity to present reasons why should not occur [defense of allegations]

4. right to call witnesses

5. right to know opposing evidence

6. right to have decision based exclusively on evidence presented

7. right to counsel [especially if HOA attorney is present]

8. making of record

9. availability of statement of reasons [public awareness of defense]

10. public attendance [transparency]

11. judicial review [appeal to civil court]

 

I’ve inserted annotations as applicable to the HOA version of justice.  As you can see, members are being shortchanged by HOA attorney/lobbyists who influence and dominate state legislatures, and who write and rewrite the CC&Rs and bylaws.  HOA kangaroo courts make homeowners second class citizens, and their foolish appeals to their HOA attorney go nowhere, because no one told you that he represents the board, not the members.  You know, like management vs. employees.

And since there is no legal obligation of the HOA to establish justice, providing for some form of public defender equivalent falls on deaf ears.  The HOA wins in this lopsided “playing field” since it has the money to hire attorneys to legally maneuver the system to make it costly for the homeowner to complain.  And don’t forget the public ostracizing of members who complain: they are costing you money; they are not good neighbors. Don’t forget that there’s no opportunity for the homeowner to answer in the same media as used by the HOA – the newsletter, board meetings and website.

Yet, government interference to protect your rights as citizens is violently frowned upon by HOA members.  Why?  It doesn’t make sense, doing nothing about your loss of protections.  For what?

[i] Henry J. Friendly, “Some Kind of Hearing,” 123 U. PA. L. REV. 1267 (1975).

HOA Common Sense, No. 5: Democratic elections

Democratic elections, No. 5

HOA members have been repeatedly told that they can change things in their HOA by voting for board members and even by changing the governing documents; that HOAs are democratic because members can vote to make these changes happen.  Well, does that make real sense when we know that countries like China and Cuba allow their people to vote? Yes, the people are allowed to vote, but no one would think to call these countries democratic.  Use your common sense!  You are being conned!

HOA members should read my discussion of the California case holding the HOA to have violated the law on fair elections procedures in Wittenberg v. Beachwalk HOA.[i] Such activities as only containing the board’s view of candidates, continuing holding elections until the board wins, and not allowing equal access for ‘town hall’ meetings by members.

Why is it that this country would participate in seeing that fair elections take place in other countries, but do nothing for the 23% of the American population living in HOAs?  While a few states like California have detailed statutes dealing with HOA elections, most do not have an oversight entity watching the elections as undertaken with these foreign country’s elections.  Worst of all, generally it is the HOA attorney or HOA manager who tally and report on the voting, but both cannot be seen as independent observers or neutral parties.  They are both agents of the HOA and not the membership.  That is like having a business’ attorney overseeing union elections.

Furthermore, the defenses of voting the bums out and changing the governing documents are without merit. These defenses reflect the erroneous implicit attitude  that HOAs are the same as public entities.  They are not!  The HOA’s “constitution and laws” are contained in an agreement between a single member and the HOA.  To say that “you”, a single member, can change governing documents or vote the bums out misstates the law and the single member’s ability or right to accomplish this goal.  The member needs the assistance, the cooperation and votes of other members in order to accomplish these changes. 

Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy.  Is this HOA government better than public government?  Common sense tells us no!

HOA Common Sense, No. 4: Consent to be governed

Consent to be governed, No. 4

When pro-HOA supporters are pushed to justify the conditions of living in an HOA they usually end up with: “you agreed to the contract,” “if you don’t like it move out,” or “remaining in the HOA means acceptance to be governed.”   Here I will show that these defenses lack merit.

First, the application of contract law to the CC&Rs agreement reveals the many invalid aspects of the CC&Rs as a bona fide contract.  It is obvious from a simple review of contract law.  Yet, courts have held that the CC&Rs are a contract or are to be interpreted as a contract, and have even analyzed the meanings of CC&Rs in the same manner as a contract. But, the courts do not question the validity of the CC&RS contract with respect to contract law.  The courts resort to equitable servitudes law, which simply requires the acceptance of a deed in order to bind the home buyer to the CC&Rs sight unseen.

This apples and oranges approach doesn’t make sense, does it?  Unless, of course, the motivation is to coerce acceptance of the HOA legal scheme by violating the Constitution’s requirement for “the equal protection of the laws” for all citizens. A common sense approach for a just and fair contract says that this is all wrong; that applying servitudes law to coerce private government acceptance makes a mockery of the Constitution.

Second, for illustrative purposes, let us look at current events in regard to Obamacare, where the people are discovering what was said in support of Obamacare is turning out to be not so true.  That certain claims were misrepresentations and half-truths, which were obviously made to induce acceptance of Obamacare.  However noble the ends of Obamacare the means to achieve it are deplorable. However noble the ends served by the bill that Arizona Representative Michelle Ugenti may have believed the deliberate violation of the Arizona Constitution was not an acceptable means.

This is the same scenario that was played out in the mass merchandising of HOAs by the stakeholders, including state legislatures. This scenario holds that the beneficial ends served by HOAs justify the false and misleading means to obtain acceptance.  A society that accepts such conduct is dysfunctional and does not build a better community, but destroys it.  Think about it!

If indeed HOAs are the next best thing to Mom’s apple pie, wouldn’t it be sensible for the proponents of HOAs to put the matter to a test. Where is the full disclosure, as contained in the “Truth in HOAs Disclosure,”[i] of material facts for example, regarding HOA regimes?  If there is true consent by home buyers, why is CAI afraid to conduct this poll or state legislatures to draft legislation that requires such a disclosure?  Common sense tells us that this is the just and ethical thing to do, unless there is something to hide.

Third, rather than proceed as suggested above, the faithful HOA defenders have resorted to the mantras (I use this term to indicate unsupported and irrational dogmatic statements) such as “move out” and “HOAs are not for everybody.”  The argument that remaining in the HOA amounts to consent to be governed is without merit.[ii]  Aside from the ethical questions presented by this argument, it ignores the charges of fraud and misrepresentation to induce home buyers to accept the HOA agreement. It ignores the failure to pass judicial scrutiny[iii] for the waiver or surrender of constitutional rights. In other words, the HOA comes with unclean hands, which greatly weakens the legitimacy of its position to demand consent and that to remain in the HOA is full consent to all that the HOA does. 

For example, where’s the common sense to expect obedience to the rules and regulations when no notice has been provided of what constitutes a violation?  Unlike in the public arena where all violations of the law are made public (publicized in code books, online, etc.), not having knowledge of the law is no defense for a lawbreaker.

I find it hard to believe that the vast majority of HOA members fully consented to be treated as second class citizens resulting from the lack of Constitutional protections that they were told, since childhood, are guaranteed to all Americans.  I find it hard to believe that most members did not have a reasonable expectation that the state would not protect them and not provide meaningful enforcement against HOA board lawbreakers, or to believe that ex post facto amendments were valid, or to believe that the HOA would engage in a wide range of questionable activities under its grant of broad powers.

But this is what the pro-HOA special interests want you to believe!  That the good people of America seek unequal status, and prefer it (all those CAI surveys).   This is a disparaging and belittling attitude toward the good people of America, isn’t it?  It is an insult!

Obedience in conscience to a government requires fair and just laws. In fact, the legitimacy of a government is based upon promulgating fair and just laws.[iv]  It is the fundamental basis of the social contract between the people and the government.  And it is common sense to expect the same from private HOA governments.

Homeowners in HOAs must demand equal status with non-HOA homeowners and demand that the government justify why there should be unequal treatment and the loss of their rights, freedoms, and privileges and immunities under the Constitution.  Homeowners in HOAs must demand justifications that will meet and pass judicial scrutiny.

 

References

[ii] See Contracts, the Constitution and consent to be governed that addresses public government, yet applies to HOAs.

[iii] The Supreme Court has set tests for the constitutionality of legislation depending on the nature of the rights being violated. The most demanding is a necessary and compelling justification for the law, and that no other alternative is available, to a simple demonstration that the law serves a genuine government interest.

[iv] 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 … constitutional legitimacy can even be seen as a product of procedural assurances that legal commands are not unjust”. “A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just”. (Restoring the Lost Constitution, Princeton Univ. Press, 2004).

HOA Common Sense, No.3: The Path to HOA Enlightenment

The Path to HOA Enlightenment, No. 3

I ended HOA Common Sense No. 2 with a call for the people, following their ethical and moral conscience, to lose their false views of reality in order to successfully resolve long standing, endemic HOA problems.  The authoritarian, private HOA government was not created to and has no legal obligation to protect and maintain individual rights and freedoms as does public government under our Constitution with its Bill of Rights.

This difficult task for substantial HOA legislative reforms can be accomplished by choosing the path that requires the people to 1) step outside the box created by the pro-HOA special interests and to reject dogmatic attitudes that refuse to consider opposing and dissenting arguments, and 2) that we confront and challenge the pro-HOA supporters demanding that they defend their half-truth, misleading, and false mantras with documentation and legal authority.

This path to a successful resolution of endemic HOA problems is rational and sensible.  It is up to the people to choose the America of tomorrow, that of the Founding Fathers or of the New America of HOA-Land, for their children and grandchildren. 

It’s just common sense for Americans to reject the authoritarian HOA private government, and to support our democratic system of government of 226 years.

HOA Common Sense, No. 2: The new Enlightenment Age

The new Enlightenment Age, No. 2

I ended HOA Common Sense No. 1 with a call for the people to strip away their dogmatic views about HOAs and adopt a fresh, common sense approach to understanding the nature and functioning of their community – a local political and social community.  It must be asked, Why is an imposed contractual government without the protections of the Constitution better than a local public entity subject to the Constitution?  

Consider that the alleged contract signed at the time of purchase can be modified without the buyer’s consent, and without compensation, making the “contract” a meaningless piece of paper.  A condition that is not possible under the Constitution, which prohibits ex post facto laws – laws that change the legality of past conditions.   Your agreed to CC&Rs can be so amended to alter the terms and conditions of your agreement.

What sense does that make?  Why would anyone with any common sense accept this condition? And there are many other questions that cast legitimate concerns of a rational decision by buyers to accept the CC&Rs adhesion contract.

The policy makers, the public and the homeowners must understand that they have been living in a “cave” created by the promotion and mass merchandising[i] of the HOA legal scheme, eagerly accepted in exchange for empty promises of maintaining property values.[ii]  As prisoners within the cave, HOA members can only see the shadows of reality cast by the false light of the special interest propaganda.[iii]  Those who have escaped the cave and who have gone into “the light” of reality become enlightened. 

The difficulty before our society is for the Enlightened to be able and willing to return to the cave, the HOA, and inform the members about the truth of the HOA legal scheme. But, the members reject these arguments as false, because they have not seen the reality.  This task of enlightening society in general is a major task. However, “This ‘no negatives about HOAs’ unspoken alliance that has served the industry’s special interests by keeping things under wrap, and not letting the sunlight expose these legal issues that include violations of constitutional law, is collapsing.[iv]

A people, a society, that bases its actions on a false reality will never resolve problems.  The underlying assumption is a firm belief that the people want to do what is right and just.  The Dalai Lama wrote, “Where ethical restraint is lacking, there can be no hope of overcoming problems.”[v]  Where ethical restraint has been replaced with material concerns and especially concerns for money, and with “Me first”, “Greed is good”, and “I want it now!” it is understandable why our government of the people is so dysfunctional.[vi]  And that includes HOA private governments.

[i] See “Part 1, The Mass Merchandising of HOAs,” The Foundations of Homeowners Associations and the New America, George K. Staropoli, StarMan Publishing (eBook) 2009.

[ii] Here I make the argument that the people, in general, have been conned.  Readers should refresh themselves with Hans Christian Andersen’s The Emperor’s New Clothes. 

[iii] See Plato’s allegory of the cave in Book VII, The Republic.  For a summary and a simplification of the allegory, see the YouTube video at http://youtu.be/sAu-CNSh9F0.

[v] The Dalai Lama, Ethics for the New Millennium, Riverhead Books, 1999.

[vi] Jim Wallis, Rediscovering Values: On Wall Street, Main Street, and Your Street, p. 27, Howard Books, 2010; Ron Brownstein, “America Divided”, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America, Penguin Books, 2007.