Category: Opinion

Posts by GKS

the Truth in HOAs poll message is quite clear

In the Introduction to the Gutenberg Press ebook publication of Aristotle’s Politics, A. D. Lindsay wrote, “The existence of force is for Plato and Aristotle a sign not of the state but of the state’s failure. . . . the state represents their common agreement, force their failure to make agreement complete.”

The champion of the people, Thomas Jefferson in his 1801 inaugural address, stated, “That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.”

Evan McKenzie, in Beyond Privatopia, warns that, “Shifting political authority to relatively invisible boards of directors who are basically beyond democratic accountability but who control enormous amounts of money may be a dangerous practice.”

In contrast to those CAI, industry sponsored “satisfaction with HOA” surveys, a very direct and simple poll is being conducted on the internet. It addresses the issues of the legitimacy of HOA governance in regard to the validity of a genuine consent to be governed, and a surrender or waiver of an individual’s rights, freedoms, privileges and immunities. It asks the readers directly, ”Would you sign, or would have signed, the Truth in HOAs Disclosure Agreement?” (See Truth in HOAs disclosure poll — please vote your conscience<.

After just 4 days, the results have shown a steady outcome, with at this writing,

  • 83% responding to, “NO — Would anyone in their right mind knowingly sign such an agreement?”

  • 16% responding to, “NO — I won’t agree to accept such conditions although I want to protect my property values.

  • And one lonely vote for, “YES — I readily accept the conditions, and I want to protect my property values.”

  • and no responses to, “YES — I had no choice for comparable housing, so I accept the conditions.”

The absence of any support for choosing an HOA for its alleged property value protection must be noted. This absence allows for some important conclusions. Nobody has gone on record, even anonymously, to support what many have expressed as the outrageous propaganda by the pro-HOA factions in our society. This propaganda, in its fullest argument, declares that the people openly embrace the HOA concept and fully and knowingly consent to be governed by the HOA regime in every way. The lack of any supporting response, however, seems to indicate some embarrassment of having to admit to a falsehood. To indicate some feeling of guilt. A realization that if they respond YES that they will be rejecting our democratic system of government for empty promises of a few pieces of gold So, they cannot admit to it by voting YES.

It is also interesting to note the 16% response to rejecting the Agreement, but affirming the desire for protecting property values. Not presented here, but there are other means of providing for the HOA benefits that do not violate our principles of democratic government. One such proposed mechanism exists today, but the people have been conditioned to accept repressive private government over no public government with all its protections. (See my 2004, A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters<.

It appears, in spite of outcrys and laments of defending the Constitution, that state legislators have adopted the attitude of the Emperor’s council of advisers in The Emperor’s New Clothes, and allowed themselves to be swayed by fast talking self-anointed pundits. They have allowed this state of affairs to exist, and to continue to grow. Example: in Beyond Privatopia McKenzie tells of a Madison, MS ordinance (10-406.14, 2006) that makes it unlawful to violate the CC&Rs and allows the HOA to file a civil court complaint.

And he presents the first steps in an explicit symbiotic relationship between cities and HOAs with the creation of a “Congress of Neighborhoods<"in Gilbert and Chandler, AZ that “formally links cities with associations” in a number or areas, including HOA educational seminars. How about constitutional law and government 101 seminars? None. The “Congress” sounds like the beginnings of The United HOAs of Arizona

The message of this Truth in HOAs Disclosure Agreement poll is quite clear. And again I ask, “Who will protect the people from powerful factions?”

Truth in HOAs disclosure poll — please vote your conscience

Please let us know where you stand on the HOA issues of “agreement to be governed” and “consent to obey.”   If the following Truth in HOAs Disclosure Agreement were required to be signed at the time of purchase, would you sign or not sign your waiver and surrender of your rights and give you explicit consent to be governed?

Homeowner Association (HOA)
Buyer “Truth in HOAs” Disclosure
&
Consent to be Governed Agreement

 

By my signature below, I , the undersigned Buyer, have read and understood the restrictions imposed upon me by law and the courts as a member of an HOA, and have agreed to the waiver and/or surrender of my rights explicitly contained below. All other rights not expressly prohibited below or expressly granted below to the HOA are retained by me.

I, the undersigned Buyer, and the undersigned HOA by its President, hereby acknowledge and consent to the following:

(a) that the declaration of covenants, conditions and restrictions (CC&Rs), the bylaws, and any written rules and regulations are treated as binding private contracts by the courts; and that to enforce my rights under or compliance with the governing documents I must file suit in civil court, and that such a civil suit involves no state agency official, attorney general, or county attorney ;

(b) that under current court holdings, I am legally bound by any and all amendment to these documents validly enacted in accordance with the governing documents, with or without my vote or consent, provided that they are found not to be unreasonable, contrary to public policy or unconstitutional; and that an amendment may alter the CC&Rs at the time of purchase, binding me to
the amendment without my consent;

(c) that under current law, there are no substantive penalties against violations of the governing documents or state laws by the officers or directors of the association sufficient to serve as a detriment to future violations;

(d) that the association (HOA), as a private entity and not an arm of the state, is not subject to the restrictions and prohibitions of the 14th Amendment to the US Constitution that otherwise protects the rights of the people against actions by public government entities; and that the governing documents in all legal practicality serve as the subdivision’s “constitution,” taking precedence over
state laws and the state and US Constitutions, unless specifically denied by any such laws or legal precedence;

(e) that the governing documents contain due process protections, in instances of alleged violations of the governing documents, that are less than as required under public laws and civil court procedures, that are lacking requirements for an independent tribunal, such as the right to introduce or confront witnesses, or the right to introduce and challenge contrary evidence;

(f) that in any dispute with the HOA, and contrary my rights under the federal fair debts collection practices act (FDCPA), the courts require continued payment of your assessments even while the dispute continues;

(g) that there are no equivalent clean or fair elections procedures as found in public government elections, to protect the integrity of the HOA election process; and

(h) that the practicable ability to institute member “initiatives” and make changes to the governing documents or ACC rules is highly dependent upon the active participation of my neighbors who, as a member of an HOA, have been described as indifferent and apathetic; and that there are no provisions for HOA board “referendums” on issues that ethically should be put to a vote of the members.

CAI firmly supports the New America of HOA-Land

This issue of the Community Association Institute’s house organ, Common Ground, has the strongest language for the triumph of private agreements to supersede the US Constitution, making the Constitution a meaningless piece of paper, a meaningless document, and an empty compact between the people and the state. “The right to regulate activities within a community association is an embodiment of our constitutional rights to enter into agreements with our neighbors” so proclaims CAI. It implies that the community association is just another corporate entity, and not the governing body that regulates and controls the people within its borders, which is the essential ingredient that distinguishes a corporation from a political government, a state.

CAI is falsely arguing that anybody can write an agreement to circumvent the Constitutional protections that forms the basis of our political system of government. In essence, CAI is advocating the rejection of the Constitution as the supreme law of the land and you and your neighbor can draft a new constitution as you see fit, ignoring the original Founding Fathers document. And so can another group, and another, and another, and so on. Why Is CAI arguning so? Perhaps because as private organizations, HOAs are not bound by the Constitution and can do as they please – the Constitution be damned!

CAI bitterly complains in this piece about one “disgruntled resident “[who] used the power of government to limit the freedoms of association residents” and caused Arizona to use its legitimate police powers to regulate people and organizations, and to protect the constitutional free speech rights to fly the Gadsden Flag in HOAs

And, seemingly desperate, CAI lets its readers know where it stands: The one constant is that your colleagues at CAI, working through 33 state legislative action committees, are fighting to protect associations and ensure a healthy business environment for the companies that support our communities” (Emphasis added). CAI does not stand for the people, but for the undemocratic governing body of subdivision territories known as homeowners associations. And, CAI says it loud and clear, making it quite explicit: CAI is “fighting to . . . ensure a healthy business environment for the companies that support our communities.”That is, for their members, the lawyers and their self-proclaimed professional management firms. Let the Legislators hear well!

CAI is firmly behind the New America of HOA-Land of independent principalities unaccountable to any state in the Union. A balkanized hodge-podge of independent “city-states, under a parallel constitution known as the Uniform Common-Interest Ownership Model Act (UCIOA) and its variants across this country. Brought to you by the legal-academic aristocrats who have avoided any discussion of secession or repudiation of the principles of our American system of government. But, running to the state for protection as any principality must do. And the civil government of the state abdicates its duties under the US and state Constitutions, and protects these regimes against its own citizens.

“Fees, Finances and Flags,” Common Ground July-Aug 2011, CAI.

Twin Rivers and NJ HOA free speech rights, redux

Here we go again! Once again revisiting the question of free speech rights to display signs in a New Jersey HOA. In Mazdabrook v. Khan the appellate court revisited Twin Rivers and the underlying “test case’, State v. Schmidt, but with a different outcome in favor of free speech. I find it very interesting how our judicial system analyzes and bisects broad legal principles into 1001 “and, if or buts” micro-segments. How is the average person to know what is legal and what is not? Must he go to an attorney, who may or may not know but will take you to court to find out?

In Mazdabrook the homeowner placed campaign signs for his election as major of the town, not a for sale sign, but the HOA had governing documents permitting only for sale signs and no others. The court said No, No, No, that’s content-based restriction on commercial advertising and a constitutional violation of free speech rights and a total ban on other signs. In contrast to Twin Rivers, the HOA sign restriction to allow a sign in every window and one outside sign no more than three feet from the house was held not to be an unreasonable burden on the owner’s free speech rights. It cited the Restatement of Property “suggestion” that a covenant is not valid if it “not mentioning the obvious that a covenant is also invalid if it were unconstitutional.”

See, as to another question of reasonableness, the NJ Esposito case, In NJ, HOA boards do not have to be reasonable, and go figure how our judicial system works. See also the link to the Paula Franzese and Steven Siegel critique of the Twin Rivers decision in Rutgers Journal articles on HOAs and Twin Rivers case.

OF SPECIAL INTEREST and importance is the dissenting opinion of a judge who addressed such questions as: the waiver of one’s rights when simply taking possession of his deed, the implied consent to be governed, and a surprising reference to the waiver of ex post facto rights. Where did he get that from??? I wonder?

I’ve been told that the appellate decision has been appealed to the very same NJ Supreme Court, but oral arguments have not yet been heard. Also, the Rutgers Constitutional Law Clinic under Frank Askin, the party that represented the homeowners in Twin Rivers, has filed an amicus curiae brief for ACLU, and will be allowed to make an oral argument.

Cases

Mazdabrook v. Khan (N.J. Super. A.D., 2010, unpublished).

CBTR v. Twin Rivers, 929 A.2d 1060 (2007).

State v. Schmidt, 423 A.2d 615 (1980).

In NJ, HOA boards do not have to be reasonable

Nor in any other state that stands by the Business Judgment Rule (BJR) doctrine.

 

Re: Esposito v. Riviera at Freehold HOA, No. A-6001-09T1, (NJ Supr.Ct App. Div. April 2011).

 

This appellate court decision reflects what’s wrong with our judicial system with its doctrine of binding precedents, stare decisis, that is used to uphold earlier decisions even if they may be obviously unjust by anyone’s standard. It perpetuates injustice and judicial bias, as we see with HOA decisions. In Esposito, the court cited the protections for homeowners based on the Twin Rivers NJ Supreme Court opinion,

 

The protections for common interest residents were described by the Court in [Twin Rivers]. The Court noted that (emphasis added):

 

First, the business judgment rule protects common interest community residents from arbitrary decision-making. . . . Pursuant to the business judgment rule, a homeowners’ association’s rules and regulations will be invalidated (1) if they are not authorized by statute or by the bylaws or master deed, or (2) if the association’s actions are “fraudulent, self-dealing or unconscionable.” Our Appellate Division has uniformly invoked the business judgment rule in cases involving homeowners’ associations.

 

[It should be noted that this ipse dixit (a dictum in the courts) that homeowners were protected by the business judgment rule was an “offering” to mollify homeowners who just had their constitutional protections to free speech rejected by the NJ Supreme Court.]

 

Note the BJR absence of reasonableness in board decision making as found in the Restatement (Third) of Property: Servitudes, § 3.1(2) – (4), and elsewhere. However, the homeowners were well aware of reasonableness as a criteria for valid decisions and argued the “material adverse effect” standard that includes reasonableness as a criteria instead of the BJR. Unfortunately, the Court quickly perceived that this standard only applied to condominiums as indicated in the court decision (Billig v. Buckingham Condominium Association I, Inc., 287 N.J.Super. 551 (App. Div. 1996)).

 

The Court decided that, emphasis added,

 

The trial judge held that since the Association was not a condominium association, the Condominium Act did not apply, and he refused to extend the “reasonableness” and “material adverse effect” standard in Billig to this matter. After a careful review of the record and weighing of the evidence, we see no reason to disturb the judgment requiring replacement of the door. We reach this decision based on the finding of facts by the trial court, which are adequately supported by the evidence, and essentially for the legal conclusions expressed in [the trial judge’s] comprehensive and thoughtful opinion.

What about justice? Why is reasonableness required for justice to be served in condos but not in HOAs? HOAs are sui generis, a combination of nonprofit and governmental functions. They are not just another run-of-the-mill nonprofit with ease of entry and access, and without liens or foreclosure penalties. Don’t they deserve a heightened degree of homeowner protection as provided under the “material adverse effect” and Restatement doctrines? Are we a nation of laws to serve justice or a nation of men to decide as they please?

 

[As to the nature of this complaint, the homeowner replaced his “colonial” style door with a “gothic” style door, which I am told are quite different. Esposito claimed that the property manger gave him a verbal OK, which he relied on, but submittted a change approval after the fact. The ACC, as we all could anticipate, denied the after-the-fact request. And so the suit progressed. Why, it can be reasonbly asked without fears of lost income, didn’t the board or ACC simply say it was quite unreasonable to replace a colonial with a gothic? You don’t need a King Solomon to nake this rational, reasonable, decision. Well, maybe so if you accept McKenzie’s view that incompetent people are conscripted to run HOAs and who affect the individual homeowner’s finances. Was it undue lawyer influence based on the fear of lost fees?]

 

Returnng to the argument at hand, judicial bias against HOAs, as I wrote previously in Judicial precedent and HOA bias,

The researchers found that the doctrine of stare decisis, itself, falls victim to the preferences of the judges. “Stare decisis is the rule of law that imports the aura of legitimacy on the judicial process by holding future decisions to be bound by prior decisions that serve as “precedent.” The doctrine of stare decisis ‘permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government. Vasquez v. Hillery, 474 US 254 (1986).’

 

In HOAs in America, I quoted William B. Allen’scomments on Machiavelli’s The Prince, which helps illuminate my argument. In his commentary Allen wrote that “the role of morals in politics is mainly to cultivate illusions,” and that “politics is merely appearance and morality is merely pretense.” And speaking of justice, the necessary ingredient for the claim to the legitimacy of government and to be obeyed in conscience, Allen offers Machiavelli’s advice, “Because the [right] to rule is rather the appearance of justice rather than justice itself, the appearance of injustice defeats every [right] to rule.”