Opinion – Page 15 – HOA Constitutional Government

Homeowner price for justice and enforcement

Stan Hrincevich, President of the Coloradohoaforum.com, wrote a YourHub, Denver Post opinion on May 4^th, HOA homeowner’s rights and voting rights of yesteryear. Stan severely criticizes HOA justice for homeowners and the inequality of the financial costs to obtain justice.

“You have the right to vote but now you have to pay a poll tax and can’t afford to vote. . . . However, this seemingly fair mode of governance ensuring the rights of the homeowner and HOA is as much an illusion as ensuring voting rights in the late 1800s accompanied by the poll tax. HOA justice for homeowners is a pay-to-play enforcement system. If one has deep financial pockets, time, and legal resources, one can pursue one’s rights under their HOA governing documents. Others without such resources cannot.”

He recommends non-judicial hearings which, I assume, would include stronger enforcement of the decisions and the law than currently today in Colorado and in every other state. Implied is a reduced cost to homeowners – the removal of the present day poll tax.

I’ve also argued that the current status of HOA justice has the same effect as if it were a poll tax (made unlawful by LBJ in 1964)[1]. But the real obstacle to homeowner justice is the lack of state enforcement of HOA board violations of the law and the governing documents. The vast majority of the reform laws rely on the good will of the HOA board and its attorneys to act in good faith with the intent of the law. However, the conduct and acts of the HOAs and their attorneys has demonstrated that this reliance is unfounded. They should be held accountable as if they were municipal government employees.

“If there is no penalty [for] disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” (Alexander Hamilton, Federalist #15)

“Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties, or punishments for violations of state laws or the governing documents? Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.”[2]

I strongly agree with Stan, reform can only come from the legislature enacting just laws and removing pro-HOA laws.

Notes.

Poll Tax postings on HOA Constitutional Government. To say that a homeowner can go to court for a redress of grievances would be like saying that there was nothing wrong with the 1950s Poll Tax abomination, used as an effective, legal at the time, devise to stop voter registrations. (April 2010 Letter to NC House Select HOA Committee); In the late 1950s the Southern states enacted a Poll Tax and instituted certain “tests” in order for citizens to be eligible to register to vote. No federal or state laws were violated, since the states were permitted to determine the methods for registering citizens, so long as it was not based on race (15th Amendment). Of course, the tax was set at a level very few Blacks could afford to pay (Dec. 2008, Goldwater Institute: separate and unequal constitutions for HOAs); Civil action amounts to a bar against justice much as the imposition of poll tax in the South in the 1950s used to prevent blacks from registering to vote. Justice for the average homeowner cannot be had a price which he cannot afford while the association is allowed to use member dues to hire a lawyer (June 2006, Where’s California’s Homeowners Bill of Rights?

2. See HOA-Land Nation “Did you know?” Part 2 (2019).

A united, national front to HOA reform legislation

A private Facebook group has undertaken a gallant and tedious effort to inform advocates across the country proposing reform legislation. Its Admin, Patrick, provides a list of numerous bills that are applicable to all states with modifications. Thus, I proposed a broad sweeping “intent section” by the homeowner rights advocates to be included in all proposed legislation under the Homeowner Reform Leaders National Group (HRLING). It should be added as the last section to all bills, e.g., “Section2. Intention of . . . HRLNG.”

As for specific legislation I proposed, I make reference to the “Homeowner Association Consent to be Governed Agreement An Act (to be known as the ‘Truth in HOAs’ Act,” paragraphs 1 and 4, March 2011).

“No provision of any contract or any declaration of covenants, conditions, and restrictions affecting lawful property uses of residences in a subdivision or condominium is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties against whom it is being enforced; or 2) all parties against whom the provision is being enforced knowingly and voluntarily agreed to be bound by the provision without reading or understanding it.
“Therefore, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, ‘The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.’”

Calif AB 572 may face constitutionality challenges

42 USC 1983

The proposed California bill, AB 572[i] (brought to my attention by Marjorie Murray of CCHAL) faces a constitutionality challenge if past and enforced by the courts. This bill attempts to aid the state in its affordable-housing program by providing reduced CID assessments to owners in the program: 5% limit increase on affordable housing units while others can be as high as a 20% increase. This amendment also removes the CID covenant of equal assessments for all owners.

HOAs (CIDs) are private contractual organizations protected by the Constitution prohibiting interference in contracts.[i] If a case is upheld by a court it can be argued that the law violates 42 USC 1983, Civil action for deprivation of rights – contract interference and “the equal protection of the laws” that favors owners in affordable housing.

“Every person who, under color of any statute [court decision], ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .“

I would argue this position to the California House committee prior to its public meeting to give the committee time to consider its impact.

References

[i] AB 572.

[ii] See Art. I, Section 10, paragraph 1: “No state shall . . . pass any law . . . impairing the obligations of contracts.”

WSJ poll on decaying American values shared by HOA-Land

As early as 2019 I began examining the relationship between the decaying national culture and that of the political and social culture of HOAs in HOA-Land. I came to the conclusion that the HOA social and political dynamics are identical as we have witnessed on the broad national scale. I am not sure as to what came first, the chicken or the egg? To what extend has the HOA independent principality mentality and legal scheme contributed to the national scene? Or are the HOA dynamics just a reflection of the broader culture in America today functioning in parallel with the national malaise, are the private government HOAs?[i]

In “Part 1, The Cultural Dynamics of HOA-Land” of my HOA-Land Nation, I present my analysis of the forces at work dominating the politics within the HOA private government.

“Basically, the HOA legal structure and scheme is authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. The authoritarian nature of HOA-Land is masked by a thorough indoctrination that presents a false picture of the real estate subdivision as democratic, inappropriately named a community, simply because the members are allowed to vote, as meaningless as it is“.[ii]

Last month The Wall Street Journal (WSJ) conducted a poll on the decline in American values since 1998, just 25 years ago.[iii] The University of Chicago interviewed 1,019 adults and revealed a decline that is reflected in the HOA culture as well. In other words, Americans have changed their values to disregard the democratic values of our Founding Fathers. And the private government CC&Rs constitution played a big part in this reshaping of America.

The WSJ findings reveal the interplay between the two cultures in several important aspects.

Community involvement … Dropped from 47% to 27%. This finding supports HOA lack of involvement, non-volunteering members, the apathy, and failure to support substantive, well documented complaints by other members that is rampant throughout HOA-Land. HOA details can be read here HOA defect: volunteers & boards of directors.

· Patriotism . . . Dropped from 70% to 38%. How can it be explained? The prevalent conduct by the vast majority of HOA members who unquestionably accept the acts of the board of directors. When these actions are outright black and white violations of the Constitution, state laws and obligations of the HOA governing documents. In short the HOA operates with impunity in regard to American values and beliefs, reflecting a lack of US patriotism and a preference for the HOA “constitution.” HOA details can be read here:HOA Common Sense, No. 1: The New America of HOA-Land.

Money . . . rose from 31% to 43%. The cultural messages over the last several decades have clearly been: greed is good; it’s all about me; and I want it all, and I want it now. Paraphrasing the Reverend Wallis,

Do we want [property] values to prevail everywhere and in all things? Are there some areas of life where [property] values should not determine what is most important — personal and family relationships, ethics and religion, community and public service and social justice? Are there certain things degraded when [property values] are allowed to be the ultimate measure? Are there certain social values and practices that are higher than market values?[iv]

· Religion . . . Dropped from 62% to 39%. Each of the above drops in the conduct of Americans, also found in HOA-Land, portrays a decline in the ethical and moral values and guidelines that were previously provided by institutional religions. “God id dead” is the watchword of federal government that has not provided a substitute code of conduct. In America today, Rev. Jim Wallis wrote in 2010 (Rediscovering Values), “What has been deliberately and carefully made ‘socially acceptable’ was, not too long ago, thought to be irresponsible – both financially and morally.” See also, God is dead, and so, too, are our unalienable rights.

NOTES:

[i] See Did HOA-Land contribute to the national disregard for democratic America?

[ii] George K. Staropoli, The HOA-Land Nation Within America, StarMan Press, 2019.

[iii] WSJ/NORC Poll March 2023.

[iv] Jim Wallis, Rediscovering Values: On Wall Street, Main Street, and Your Street, p. 27, Howard Books, 2010;

North Carolina attempts AG protection of HOA members – HB 311

CORRECTION. This post was mistitled referring to new Hampshire but it is a North Carolina bill, HB 311.

NC State Representative Iler introduced HB 311 granting the AG with powers and authority to investigate HOA violations and to commence legal actions against the HOA if warranted. It seeks direct state involvement in protecting a class of citizens being denied the equal protection of the laws by amending §§ 47C-3-123 and 47F-3-123.

It may come to a surprise to many who find no ills living in an HOA, but it’s well known that state Attorney General’s offices have shied away from investigating and bringing legal actions against HOA board violations of state laws and their contractual obligations. The general response from a number of AGs has been “no authority to act,” although they have general powers to investigate white collar crimes; “the law needs to be changed, go to the Legislature to change the law.”

Representative Iler can be your champion! He needs your active support against a legislature – as are all state legislatures — that is hostile to HOA owner private property interests. NC citizen involvement is necessary for success!