Category: Opinion

Posts by GKS

HOAs as a “failed experiment”?

“Failed experiment” was discussed on OnTheCommons internet talk radio show (http://onthecommons.us) with Evan McKenzie and Shu Bartholomew, its Host.  I’m happy to see that they recognize the HOA legal scheme of privatized government as an experiment.  Unfortunately, after 40 years it has proven to be a successful experiment and a well entrenched American institution, at the expense of the Constitution and our individual rights and freedoms.  And, sadly, pronouncements in support of private property rights and contract sanctity by the public interest organizations fail to recognize the denial of individual liberties by HOAs. (See The impact of ideology on the HOA legal scheme).
 
For a discussion of my Second American Experiment Commentary of July 21, 2008, see Homeowners Associations: the Second American Experiment.  Below is an excerpt from my new book, Establishing the New America (see http://starman.com/starpub for more information). 
 
 
1.1  The fall of the American Experiment 
Historians have referred to the American Revolution as the “American Experiment”, because it introduced a modern, as of that time, form of a democratic republic.  Would such a government based on the principles, beliefs and values of our Founding fathers survive the passage of time?  
. . . .
However, over the past century there has been a slow but steady erosion of the American Experiment.  We have witnessed the Supreme Court view the Constitution, that contract between the people and the federal government, as a “living document” subject to its interpretations, such as adding “privacy’ as a new fundamental right, ignoring the Ninth Amendment, and redefining the meaning of “public use” to mean “public purpose”.  This slippery slope is creating a land not of law, but of men. Witness the many battles to place the “right” men as Supreme Court Justices.
. . . .
In California, a rewrite of its HOA laws contains an empty chapter for a homeowners’ bill of rights.  In New Jersey, its Supreme Court believes that the business judgment rule is sufficient to protect homeowners’ fundamental rights.  In Arizona, the only two important HOA reform bills that would provide substantive due process protections were either killed or delayed by the actions of the Rules Committee chairmen.
 

The impact of ideology on the HOA legal scheme

Excerpts from the complete commentary –

Those who paid close attention to the presidential campaigns bore witness to this strict partisan politics of ideology vs. the good of the country, where the party must win at all costs, and their “the politics is war” mentality.  Arguments and statements were made to advance one’s position that seemed to lack any rational or pragmatic basis — just beat the other side! 

On the national level, again, we see public interest organizations like the Institute for Justice and The Goldwater Institute proclaiming their ideology of no government interference with private property rights.  But, they only see abuse with respect to eminent domain issues and are blind to HOA abuse, where issues of government interference and support of private organizations are not seen as a constitutional issues. 

I could not miss the similarities in position with respect to private government HOA regimes that deny constitutional protections of equal application of the laws and of due process.  Aren’t these constitutional issues under the Fourteenth Amendment?  Isn’t government interference a constitutional issue under Art I, sec. 10? 

Many homeowners had written the AG’s office over the years seeking consumer protection assistance, only to be told that they should get appropriate legislation in order for the AG to act.  With this refusal to appeal, the Attorney General is now helping to establish the New America.  

Qui Pro Domina Justitia Sequitur  (“who prosecutes on behalf of Lady Justice?“, DOJ seal)

This conclusion admits to a New America under the rule of man, and not of law, where the purpose of local government is the adherence to an imposed top-down legal scheme. A legal scheme where concern for urban landscaping is first and foremost and superior to the America values of individual property rights and freedoms. 

Read the complete commentary here . . .

Can HOA boards represent their membership before public bodies?

I posted my comments to a LoudounTimes (VA) article about an HOA lobbying before a public body concerning construction of a hospital outside the HOA subdivision.  The article focused on allegations of an improper board vote and the composition of the board.

However, there is a much larger issue here, beyond the technicalities of the HOA management procedures and votes.  Does an HOA have the authority under the law or its governing documents to assert that it is the legal representative of the members to speak before public bodies?  I don’t think so, especially without a plebiscite from the HOA members. 

If the HOA speaks before a public entity, then isn’t the HOA a lobbyist and must so register with the state, subjecting itself to all legal requirements of lobbyists?

As the courts have reminded homeowners, as well as CAI, HOAs are contractual “businesses” subject to the business judgment rule, and are not public entities.  The election of an HOA director carries with it no powers to speak before public bodies on behalf of homeowners.  And while we are at it, it goes the same for the HOA attorneys and management firms who allege to the media, and at state legislative hearings, that they represent the people — the homeowners.

Government officials and legislators must bear this in mind the next time these organization claim to speak for their homeowners.

 

Can HOA boards effectively be removed?

One of those CAI educated, certified HOA property managers wrote in the Desert Sun this Nov. 15th urging homeowners to get involved. He wrote,

The general membership of the HOA is not asked to vote on most issues that the board of directors makes decisions on because the board was elected by the members within the community to act on their behalf.

That says it all.  A grant of broad powers as if the board were inded an elected public representative.  This is a generalized surrender of one’s private property rights, carte blanche.  And this failure to understand what was given away to the board, and the court’s broad interpretations of HOA powers, verging on communalism and “state” control of private assets, lies at the root of homeowner discontent.

 I just love these appeals to democratic processes in an authoritarian regime. First, the HOA board is a corporate form of government, and whoever heard that businesses were democratic. Just because there are some opportunities to vote doesn’t make HOAs democratic — see China or Cuba.

Second, other processes set into place in the public arena do not apply under the HOA constitution , the CC&Rs and bylaws. For example, fair election protections — board uses HOAs funds for “campaigning” while homeowners must use their own funds; equal access to the HOA newletter/website and community hall for meetings; access to the membership list in order to contact others.

Now, ask yourself why these democratic processes are not found in the HOA authoritarian regimes?

HOA ideology: rules protect property values

“You signed the document saying you understood that you were moving into a deed-restricted HOA community,” she said. “If it wasn’t for these rules that keep our homes looking decent, our homes would be worth nothing. The appearance of the neighborhood has to be nice.”
 

 

(St Petersburg Times article of Nov. 13th, “Neighbors keep up appearances in struggling Tampa suburbs”).

How many people live in blighted areas, outside an HOA?  One AZ Senator took offense at a pro-HOA speaker who said, “Who wants to live in a blighted area?” in his defense of HOAs.  This Senator didn’t live in an HOA.

Getting back to close minded group-think, it’s really a question of your neighbors.  And the HOA mentality presumes that all OTHERS are out to destroy their $200,000 –  $1,000,000 homes, and must be subjected to strict disciplinary procedures, but not them.  How negative!  What a vibrant community attitude! 

Perhaps, indeed, those who choose HOA living are concerned about blighted neighborhoods, but that concern does not justify the loss of individual rights and freedoms, or the use of fraudulent sales tactics, or silence on the part of state consumer protection agencies, or mandating HOAs for new developments.  And with the state’s ideology of no accountability,  laissez-faire private government, these rules have become more important than the ends of maintaining property values.  And “maintaining property values” has even suppressed constitutional protections.

The mindset of “HOA uber alles” (HOA over all) is just another version of dogmatic ideology in pursuit of one’s personal choices, and to hell with everything and everybody else, including the Constitution.  The mindset does not reflect the best interest of our society, especially if it is to remain true to American values, beliefs and principles.