Opinion – Page 121 – HOA Constitutional Government

Beware the folly of eliminating supermajority voting for amending the HOA CC&Rs

The latest drive by pro-HOA attorneys and lobbyists has been to seek legislation to do away with supermajority amendments to the CC&Rs. If approved, the very foundation of majority rule in a democracy, and our long standing requirement that fundamental documents must have supermajority voting in order to be amended, would be destroyed. The argument is, Gee, because of the apathy, we can’t make important amendments to the CC&R.

In the 2011 Arizona legislative session, HB 2441 was defeated at the last moment. It would have allowed for minority – as low as 1/3 of the members — to amend the CC&Rs. The CAI lobbyists fought hard for this bill, even telling the committee that although it was governmental intrusion, the legislature always did that.

Think for a moment. If a minority can control the amendment process, it can control the HOA by enacting amendments that further strengthen the powers of the incumbent board. Given the fact that the rogue boards are dominated by their HOA attorneys, minority control solidifies the political machines as the power elite.

Think about it! Under a political machine minority vote regime, the regime can eliminate all and every need for member approval, except, of course, voting for directors. And, all future amendments will have this acceptable ground for the amendment — the apathy of the membership demands minority control. Nobody cares, so what!

However, in spite of this persuasive argument, the infinite wisdom of the California legislature shines brightly when it enacted laws in the Davis-Stirling act permitting just such amendments as valid. Section 1356 addresses minority control of an HOA. This section 1356 is an oxymoron and is an unreasonable and illogical intrusion on the private contract and to our fundamental belief in majority rule in a democracy.

Section 1356 allows for less than supermajorities where the governing documents require more to amend the governing documents. So a 60% voting requirement would allow for minority control. There is no restriction in the law on the lower limit for approval except to appeal to the judge that “this ain’t right.” In other words, like the failed Arizona bill, 1/3 can be acceptable, and even a 20% requirement would be acceptable.

The lunacy of this law is that a majority voted amendment to reduce supermajority voting requirement is valid, if approved by a judge. Go figure! The law has circumvented the CC&Rs private contract putting the cart before the horse! That the members have spoken is the basis for this requirement, in spite of evidence of psychological indoctrination to obey and legal pressures of financial harm for not obeying. (See Why do people harm others in HOAs?)

But if a supermajority was needed, as currently required by the CC&Rs, the amendment to amend before the court would fail. I mean, isn’t that why the HOA is before the court? They can’t get anything done with a supermajority!

How to get a supermajority vote? It’s done every day, everywhere. The content and need for the amendment must be conveyed to the membership in an open forum, an open meeting, and be debated before the membership. And not in some one-on-one private meetings or phone calls.

There is no requirement in the law to hold an open meeting of the membership to debate the amendment before approving the elimination of supermajority voting. A requirement that is found in all legislative and state agency rule-making procedures – public input.

In the recent court opinion (Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132), the homeowner does not challenge the validity of this law, but advances procedural arguments under the law. That was a big mistake (he lost), as I’ve repeated argued, of not seeing the ugly forest through the trees. The mandatory requirement under § 1356(c)(5), that “the amendment is reasonable” was never argued as I’ve argued above. In fact, my arguments above were made loudly and clearly in defeating Arizona’s HB2144, and that defeat went to the very last vote.

This decision is another example of bad law becoming a detrimental precedent against homeowners. If you think you have problems now, wait until your HOA blindly obeys the board and allows for a minority controlled HOA.

This work by George K. Staropoli is licensed
under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
Attribution must be made to George K. Staropoli as author.

Media still sees HOAs only in monetary terms

My comments to the investigative reporter from KTHR.TV in Indianapolis, IN.

I congratulate you on your very detailed report on what HOAs are all about (13 Investigates: HOAs). Your article joins the newly emerging HOA Enlightenment Movement that looks beyond the special interest, national lobbying trade entity, CAI, propaganda. For more detailed info on HOAs, beyond my short comments, please visit my links below.

Take maintaining property values covenant, the very basis of the pro HOA argument. Show me where the CC&Rs warrant or guarantee property values? Don’t look too hard as you will not find any. In short, the buyer gives up his rights and freedoms, offers his home as collateral for the survival of the HOA, and agrees to pay the assessments no matter what, even if there’s a dispute with the HOA, for an empty promise. Some deal!

In general

The HOA legal scheme is seriously defective in regard protecting people who are citizens of their state and the US, but who are now under a private regime not accountable to the state. The CC&Rs “contract” is based on equitable servitudes and not constitutional or contract law, making these de facto HOAs independent principalities. But, you only see the money side of HOAs that can be viewed as a con job.

For example, the HOA is very much like a closely held business with restricted exit opportunities, and where the members are jointly and severally liable for the debts of the HOA – if a member can’t pay, his “share” can come from the other members’ pockets. Did you know that? Wasn’t that explained to you?

Did you know that the buyer does not have to even read the CC&RS to be held to the binding agreement? All that is necessary is to file the CC&Rs with the county clerk’s office and the buyer is bound by simply accepting his deed, sight unseen and unsigned. Why isn’t the buyer told before he signs the purchase contract? Isn’t this misrepresentation?

Let’s jump to “Steps to Take Now.”

In general, although Indiana has a very limited HOA statutes, the CC&RS are an adhesion contract — take it or leave it in favor of the HOA – that contain provisions that a municipal government could not impose on its citizens. And don’t forget the misrepresentation mentioned above when you hear arguments that “they agreed to and signed” the contract.

See The Truth in HOAs Disclosure Agreement.

Your discussion of “Homeowner Rights” is woefully deficient!

You speak only of the “laws” of the HOA and its CC&RS “constitution.” Do you really believe that the buyers willingly and openly agreed to waive and surrender explicitly stated and implied rights when they took their deed? In a manner that would pass judicial scrutiny? For example, “fines” and the “notice of a hearing” as commonly found in the top-down CC&Rs mock the Constitution. And, the absence of fair elections protections makes political machines a reality.

See the Declare your US and State Citizenship for the legislature.

I hope you will make a serious effort to read these materials, backed by evidence, court decisions, statutes and the statements made by the pro-HOA special interests. And publish your review and summary.

Restoring American principles and way of life in HOA regimes

This is another HOA Enlightenment Movement article on speaking frankly and openly about HOA abuse, about common sense and reasonableness, about the rejection of the HOA attorney insistence on CC&Rs enforcement uber alles, and about legal decisions concerning the rights, freedoms, privileges and immunities of those living in HOAs who have not surrendered their US citizenship. The fact that the media are publishing more and more about “the Truth in HOAs” signals the twilight of the unspoken alliance of “No Negatives About HOAs.” It’s about time!

I congratulate the author, Eve Samples, for spreading the word about this event where it cost an HOA $250,000 in legal fees over a homeowner’s screen doors. I congratulate Martin County, FL Judge Roberts for her perspective that returns America to the people and not defend these usurper HOA private governments. I congratulate TCPalm for publishing this return to sanity incident.

Judge Roberts held that the HOA was

championing the letter over the spirit, evasion over the truth and quibbling over common sense. . . . The truth, despite evasive answers to the contrary, is that he [the homeowner] was never going to get approval, and rather than deal with that issue directly, the petitioner [HOA] chose subterfuge to create the impossibility.

The HOA president, a True Believer, said she would not change her attitude. “[I would change] Nothing, to be honest with you, because the violation was there.” The new president, a Reformer, believes that,

it might be reasonable to ask residents to vote on legal action that exceeds a certain dollar amount. . . . to have litigation reviewed by experts other than the association’s attorneys, to ‘see if the association’s position really is well founded.’

(This is a direct reference to the rules of civil court, generally R 11(a) requiring the attorney to make a reasonable inquiry into the facts.)

Those seeking justice and fair play in their HOA should spread this Commentary to all other interested parties to help them see the light. We all are Americans living under the US Constitution, and must be subject to the equal application of the laws, not to special real estate laws.

And the HOA Enlightenment Movement grows . . .

A few more enlightenment articles (see the age of HOA enlightenment is coming?) by the legal-academic aristocrats have appeared in the media and on the internet. Among these modern pretenders to Philosopher-Kings, the Adams-Kessler (Calif.) blog warns about HOA managers engaging in the unauthorized practice of law, Managers Practicing Law. Then there’s the past president of CAI “Central,” Ellen Hirsch de Haan, at the infamous Florida lobbyist law firm of Becker & Poliakoff on the need for neighborhood watch group oversight. Guard yourself from lawsuits against your HOA.

And more websites and bloggers are adding to the coverage of the Real Stories of HOA-Land, like with, Think Twice Before Placing Blame on Owners. Congratulations! The media has also been providing increasing attention to the real happenings in HOA-Land rather than just mouthing the pro-HOA “party line.”

And so must all those homeowner rights advocate websites join in the Enlightenment Movement today! At least post these enlightenment articles. Let your followers know that these legal-academics didn’t wake up a few days ago and say, My God! Look what’s going on in HOA-Land! That they have been deceived all these years!

the age of HOA enlightenment is coming?

I’m beginning to see more and more evidence of enlightenment by pro-HOA supporters. The dogmatic insistence on enforcing the CC&Rs is falling away to a proper concern for the principles of democratic government and the fair and just treatment of homeowners. The strict view of the covenants is weakening. There is a growing awareness that HOA boards are governed by other laws and ethical and moral considerations, if indeed HOA regimes are to meet the CAI propaganda of vibrant and harmonious communities.

The Berding-Weil blog, Condo-issues.com (California), shows recent evidence of this enlightenment as is recent posts introduce a degree of reality of events. Now, Donna DiMaggio Berger in Florida reminds boards of good government practices with,

Lastly, when you poll your community members and they voice an opinion on a proposed course of action, boards who disregard that input do so at their own peril. This is not to suggest that the membership must be polled on every course of action, particularly on routine maintenance which is one of a board’s main functions, but if you ask for input on discretionary spending it’s probably best to heed the message your members delivered.

Avoiding the appearance of self interest as an association director

Wow! What a thought — poll your community! Why didn’t I think of that very democratic tool? As claimed, the HOA board is the representative of the owner-members. Gee, asking for input is a radical suggestion for an undemocratic corporate form of government. Long overdue as HOA regimes are de facto political governments. Congratulations Donna! Excellent message for HOA boards as HOA member servants.

Now, Mr. Berding, why didn’t you address the recognition of the HOA de facto government in your “Reform Community Associations?” post? After all, you do hold a PhD in Government from the prestigious Claremont School. Your message was that HOAs were too big to fail, and we all have to live with the way things are.

Every year the California legislature, and the legislatures of other states tinker with the enabling statutes for homeowner’s associations, but these efforts are usually paternalistic, constituent-favoring amendments that do little or nothing to solve the fundamental problems.

How about the simple amendment that would go a long way to solving problems by restoring the equal application of the laws and due process protections of the 14^th Amendment to homeowners, as it should be, and create a unified country rather than a myriad of independent HOA principalities?

The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.

HOA member Declaration of US and State citizenship.