Category: Opinion

Posts by GKS

Who is to be held accountable for continued HOA problems?

A Texas legislator bemoaned to the media the other day, “a decade and a half of lawmaker discussions with little progress.”  Another called HOAs “at least quasigovernmental,” and that “the scales are still tilted to HOA protections.” 

The Texas HOA Reform Coalition group wrote on March 19, 2011, 

But remember what legislators say in public and how they vote can be different when push comes to shove.  While legislators may feel more HOA reform is needed and say so publicly, in the end many legislators have other priorities they are unwilling to sacrifice in order to take a stand against the well-financed HOA lobbyists, lawyers, and more importantly the Texas builders who impose HOAs on subdivisions as a funding source.  (Texas House Committee Lashes Out Against HOAs).

This is just one recent example of the reasons that HOA problems have continued for over 47 years, since the introduction of the “game plan” by the Urban land Institute in 1964 (See TB#50: The Mass Merchandising of HOAs by ULI).  For  over ten years homeowner rights advocates have appeared before the state legislatures and presented their just and legitimate grievances in the states with heavy concentrations of HOAs — Florida, Texas, Arizona, California — for naught.  For over ten years advocates have “petitioned for redress in the most humble terms, our repeated petitions have been answered only by repeated injury.”  (Decl. of Independ.).  Now this social and political cancer has spread to such states as Montana, Washington, Alabama, North Carolina, Nevada, Colorado, and Pennsylvania to name a few.

The cause of the continued protection of these private, authoritarian governments that deny constitutional protections for homeowners, and  are allowed to operate unaccountable to the state, can be laid before each and every state legislature.  They and the individual legislators — excepting those too few individuals who had attempted to bring about much needed reforms, but who have attained very limited results against the strength of “the system”  — cannot say in all honesty, “not me, him or them.”  It is each of them who are accountable for the repudiation of our democratic system of government, much in the same manner that the German people succumbed to the National Socialist Party with its strident corporate supporters and were led astray.  (See section 5 of,  HOAs in America: the illusion of democracy in a dysfunctional republic).

It is well beyond the time for state legislators to see the reality before them and to make amends to the  good people of their state.  Information abounds in these various reform groups and on their internet web sites, available to those who truly seek a just and legitimate state government, and a local government answerable as all state entities are answerable to the Constitution.  No more shall private contracts be used as a devise to subvert the Constitution and our democratic form of government for their own persona agendas.

FL supreme court upholds private contract over constitution

 

This decision sounds really exciting, but . . . . . Read the relevant part of the Florida Supreme Court opinion (emphasis added):

 

The Grand’s declaration, which was filed in 1986, adopts the terms of “the Condominium Act of the State of Florida (Florida Statute 718, et seq.) in effect as of the date of recording this Declaration” and does not contain “as amended from time to time” language subjecting it to future statutory changes to the Condominium Act. See Angora Enters., Inc. v. Condo. Ass’n of Lakeside Vill., 796 F.2d 384, 386 (11th Cir. 1986) (noting that express agreement by parties in the declaration of condominium regarding application of future statutes to the association may determine whether parties have a “constitutional protection against future amendments to the Florida Condominium Act which, absent such an agreement, might arguably impair a party’s contract obligation”).   Cohn v. The Grand Condo Assn., SC10-430, (Fla.  3/31/2011).

 

In essence, the court is saying, as I’ve always opposed, that the people have the right to determine via a private contract whether the supreme law of the land, and of the state, applies to them.  And by constructive notice alone, without explicit consent, the courts hold that you surrendered your rights! This is wrong!  This “opt out” is ridiculous!  And it is an essential defect in the HOA/condo legal scheme – private parties can draft and file a document, especially a declaration, that exempts them from the application of the Constitution and laws protecting the people. So, why bother to have a constitution anyway?

 

Another advance for The New America of HOA-Lands. 

HOAs in America: the illusion of democracy in a dysfunctional republic

In order to understand the public policy toward homeowner associations with its manufactured appearance of bona fide homeowner consent, we need to examine the political climate and value system within our society.

See short video paralleling the decline of Rome. 

1. The empty value system – anything goes

The Declaration of Independence provided the fundamental basis for the unalienable rights that no government may take away from the people. Unfortunately, contemporary political and judicial leadership has failed to retain and uphold our unalienable rights in a replacement value system of ethics and morality.

2.  The decline in the caliber of elected officials and the rise of political party ideology

 The political system has evolved to a point where the vast majority of elected officials in each party feel comfortable only in advancing ideas acceptable to their core supporters. The political system now rewards ideology over pragmatism. . . . What’s unusual now is that the political system is more polarized than the country. Rather than reducing the level of conflict the ideology increases it.

3.  Legitimate government and the illusion of justice

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.”

4.  The rise of authoritarian private HOA governments

“Therefore this Restatement is enabling toward private governance. The question of whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law [meaning these servitudes], not constitutional law.” And, “What has been deliberately and carefully made ‘socially acceptable’ was, not too long ago, thought to be irresponsible — both financially and morally.”

5. The transformation of society and the acceptance of the New America of HOA-Lands.

 There are parallels between the acceptance and establishment of the HOA as an institution, and the influence and acceptance of Nazi doctrine in Germany before and during WW II. Both offered benefits and serious drawbacks, but only the pluses were seen and not the negatives. The rationale of the defenders of Nazism follow a similar pattern to that of the defenders of the HOA authoritarian, private government.

Mayer wrote that the “good” Germans went along “in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.”

 

Read the complete article HOAs in America.

AZ bill, HB 2441, is a bill of attainder and an act of tyranny

 

Arizona’s HB 2441 is an unconstitutional Bill of Attainder under the US (Art. I, § 9, cl. 3) and Arizona Constitutions (Art. 2, Section 25).  It is a violation of the “separation of powers” doctrine as the legislature has acted to punish certain members of its citizenry — the taking of private property rights from homeowners living in HOAs — by a “trial of the legislature” and a legislative exercise of a judicial function.  As such, a bill of attainder has been described as an act of tyranny (US v. Brown, 381 US 437 (1965)). 

A careful reading of the Senate amended version of HB 2441 . . . permit and declare it is not illegal to so act by minority vote, the taking of private property rights from Arizona citizens without their consent, and in violation of their contractual rights. This bill, by its “blessings” that it has now been declared legal for a minority to so act and therefore incumbent on the homeowner to be obey, opens the “barn door” to the establishment of the oligarchical control of the community.

In Brown, the Supreme Court held,

“The Bill of Attainder Clause was intended to implement the separation of powers among the three branches of the Government by guarding against the legislative exercise of judicial power.

“A statute which inflicts its deprivation upon named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, discouraging future conduct.”

HB 2441 repudiates the fundamental premise of democracy — majority rule. This bill is a special law for a private party and is prohibited under state and federal constitutions.

Read the complete Commentary here.

AZ Supreme Court to decide whether or not to proceed on Gelb and HOA adjudication

The Arizona Supreme Court will decide on April 19th whether or not  it will hear the appeal on the unconstitutionality of the adjudication of HOA disputes by an administrative agency.

For more information, see

Advocate submits amicus brief in AZ supreme court appeal of HOA due process

AZ bill, SB 1148, seeks to restore OAH adjudication of HOA disputes