Category: Opinion

The problem I’ve found across state legislatures, and with the advocates, is that the advocates are either being too reasonable, thinking that the legislators are indeed on their side, or too fanatic, moaning and groaning that  “we wuz robbed!”  With all due respect to the advocacy leaders in Texas, unless the issue of , say foreclosure, is shown to be a gross injustice rather than a just bad choice of already granted to HOAs. Simply on the fact of a failure to fairly and properly disclose, as brought out by the woman at the Houston conference, there is gross injustice.  And, when state governments say nothing to warn buyers after hearing of these complaints, then it’s obvious that the legislators don’t care about homeowner rights, and there is gross injustice.

 

“In order to succeed, you must accept the world as it is and rise above it”

 

For years I believed that the legislators would standup and defend the Constitution and protect the fundamental values, beliefs and principles of our Founding Fathers.  And when they repeatedly failed to do so, preferring to defend HOAs under the flimsy arguments of a constructive notice and “continuing to live” as a consent to be governed, I realized other factors were at work.  Over the past few years my thoughts turned to the influence of political parties and the control they have over the individual legislators, the powerful committee assignments that can kill bills without a hearing, and party positions. The majority party has control over chairmanships and submitting bills for final vote, among other powers.

 

For example, in Arizona the Rules Committee Chairman killed several HOA reform bills on his own prerogative, or so it seemed.  But, his acts were not possible if he were to continue as an important person within the party if he did not follow his party’s wishes. One bill, back in 2004, did get past the chairmen but only as a result of the strong combined efforts of the bill’s sponsor, the active involvement of the media, an outspoken advocacy support.

 

If successful legislation is to be obtained, advocates must understand the political forces at work here in America, as demonstrated by the recent national political campaigns.  They also operate at the state level, too.  In short, the political parties have become identified with specific ideologies, and hold the obedience to their ideology before their allegiance to the country.  That is, party first, our party must win, defeat the other party’s ideas, do not defect or deviate from the 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 — their ‘base”.  (The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America, Ronald Brownstein, Penguin Books, 2007).

 

 

As related to HOA issues, the parties, under the influence of the special interests and misguided public interest organizations on both sides, do very little to help the homeowner. (Recall the conservative Goldwater Institute flimsy, but ideological, position that homeowners have entered into a bona fide contract which must not be interfered with by the government). Party interests dominate over American democratic principles and values. Yes, advocates may find a sympathetic legislator, or fortunate to find a champion like Rep. Farnsworth in Arizona and Rep. Robaina in Florida, but they are far and few in between.  And they, too, must deal with their party leadership.

 

Advocates must meet the challenge to our American foundations and address their grievances to that level.  You cannot get anywhere with arguments that its “not nice” to require homeowners to do such and such, but must show that it is fundamentally wrong to permit such CC&Rs and restrictions.  The party leadership must be shown that their positions are not what the people want, and that they are not good for America.  The party leadership must be asked if it stands for authoritarian regimes that deny individual rights under CC&R constitutions that lack protections of individual rights and freedoms. Do these party leaders believe that the repression of fundamental freedoms to achieve their vision of a landscaped American is good public policy, or is it serving to establish a New America.  Surely, establishing a landscaped American can be achieved in a fair and democratic manner without suppressing individual rights and freedoms. (See Establishing the New America of independent HOA principalities, http://starman.com/starpub).

 

These onerous provisions only serve to unjustly punish homeowners who are without adequate due process protections.  If legislators want these oppressive statutes, then give the homeowners sufficient laws to protect their individual rights.

 

 

 

A second issue with getting substantive legislation is the focus on personal problems.  Why is so much discussion taking place at this level? Because it reflects the extent to which homeowners do not understand what they have supposedly, freely and with full understanding, agreed to when buying into an HOA.  (Sadly, there have been no legislative arguments protesting this freely consented contractual  view homeowner agreement). 

 

Much of the personal problems brought out at this meeting, at similarly at the Florida homeowners conference, fail to focus on the broader picture that emphasizes the adhesion contact nature of the CC&Rs.  Again, with all due respect to these advocate leaders, the answer lies in 1) proper and complete disclosure and 2) the protection of individual rights that both political parties claim to favor, but somehow avoid or distort when it comes to homeowners living in HOAs.

 

As described in The Second Civil War, even the party’s “true believer’s”, the ideologues, are answerable to the public, the voters, if they people rally together and make their voices heard loud a clear.  The Houston conference, and those in other states serve a valid purpose. However, will lose any impact unless homeowners make their voices heard loud and clear.  Internet campaigns to the legislators are required, along with strong presence before the hearing committees.  

 

It’s up to you, the individual homeowner, to protect your fundamental rights and freedoms.

With over 20% of Americans living in homeowners associations, will any of the candidates put a stop to the loss of homeowner rights as a result of state supported authoritarian HOA regimes?  Regimes that deny due process of law and the equal protection of the laws?

Even the national HOA “true believer” lobbying group, CAI, has declared that

“Associations ensure that the collective rights and interests of homeowners are respected and preserved.” 

 

Florida’s CAN lobbyist was quoted in the Sun-Sentinel:

Berger [CAI CCAL member and lobbyist] counters, “There is no First Amendment right to put up a political sign in a deed-restricted community because there is no state action in a private HOA. So the association can enforce its ‘no sign’ rules in this regard.”

See:
The New America HOA-land of CAI: “ensuring the collective rights and interests”
The political ideology toward homeowners associations

   

CAI continues[i]  its black-is-white and white-is-black Alice in Wonderland[ii] view of the world with more pronouncements that the corporate form of HOA governance under an adhesion contract is “the most local form of local representative democracy“.  This new pronouncement of Fundamentals[iii] must be read carefully, as must all pronouncements from those who practice the political “permanent campaign[iv]” approach to HOA issues.

 

These Fundamentals must be interpreted based on the facts, that HOAs are legally bound in accordance with the corporate form of business government, and under a binding adhesion contract. Do not confuse HOA governance with public government.  Do not assume that the HOA does indeed function under the same mission, duties, obligations and restrictions as public government. They do not!  Take the time and compare. Do not accept these political lobbying statements by CAI whose aim is to persuade the public to accept its view of a New America as valid.

 

CAI clearly states that these  Fundamentals “will help people recognize the core principles at the heart of the community association model”.  But, before declaring that HOAs are the common local form of government, the Fundamentals first principle is to declare that “Associations ensure that the collective rights and interests of homeowners are respected and preserved.”  The reader should step back and examine what is being said by CAI. 

 

First, CAI is no longer saying HOAs are the best form of democracy.  Second, CAI is speaking not of individual rights and freedoms, the foundations of American democracy, but of “collective rights and interests“.  Third, CAI is declaring that indeed HOAs constitute a New America[v], a America based on a communal society, a socialistic society, and not one based on fundamental American values, beliefs, and principles as stated in our constitution. 

 

In CAI’s black-is-white and white-is-black world,  this declaration is consistent with its opposition to the constitution when it argued against “the unwise extension of constitutional rights to the use of private property by members”  to the NJ Appellate Court.[vi]  It is inconsistent with its statements that HOAs are democratic, at least not as practiced in America under the Constitution.

 

Looking at these Fundamental principles, CAI’s position on HOA democracy is clarified.  Items 9 and 10 address concerns for the individual homeowner.  Item 9 is a declarative statement of balancing collective rights with individual rights. It is not a goal statement, but a declarative statement which must be taken as an assertion of fact.  Item 10, pertaining to compromise with homeowners, is a guideline as it uses “should”.  In all fairness, CAI does declare in Item 8 that the HOA directors must obey the governing documents and the law.  Unfortunately, CAI fails to indicate that not only are the governing documents easily interpreted as an unconscionable adhesion contract, but that the laws favor the HOA and permit the loss of homeowner rights and freedoms.  Items 9 and 10 must be read with these facts in mind.

 

My “Alice in HOA Wonderland” Commentary referenced in footnote 2 also addresses the qualitative aspects of a democracy, as put forth by Professor Robert A. Dahl, and argues that voting alone — without due process of law, separation of powers and checks and balances — does not make a democracy.  This Commentary must be read to understand the simplified propaganda of Items 2 and 5, which resort to implications of bona fide democratic processes at work in HOAs just because homeowners are allowed to vote (unless not fully paid-up).

 

Fundamental Item 6 is CAI’s attempt to justify the New America of HOA governance with the misleading and simplified, “homeowners choose where to live and accept a contractual responsibility”, ignoring any discussion of adhesion contracts.  I addressed this “permanent campaign” statement in a Commentary[vii] that argued a wrongful application of public law doctrine to the binding contractual nature of HOA government.  “How does a person exhibit his consent to be governed” under a contractual arrangement, I asked.  Again, read this Commentary after reading Item 6.

 

 

 

 

 Notes

CAI continues[i]  its black-is-white and white-is-black Alice in Wonderland[ii] view of the world with more pronouncements that the corporate form of HOA governance under an adhesion contract is “the most local form of local representative democracy“.  This new pronouncement of Fundamentals[iii] must be read carefully, as must all pronouncements from those who practice the political “permanent campaign[iv]” approach to HOA issues.

 

These Fundamentals must be interpreted based on the facts, that HOAs are legally bound in accordance with the corporate form of business government, and under a binding adhesion contract. Do not confuse HOA governance with public government.  Do not assume that the HOA does indeed function under the same mission, duties, obligations and restrictions as public government. They do not!  Take the time and compare. Do not accept these political lobbying statements by CAI whose aim is to persuade the public to accept its view of a New America as valid.

 

CAI clearly states that these  Fundamentals “will help people recognize the core principles at the heart of the community association model”.  But, before declaring that HOAs are the common local form of government, the Fundamentals first principle is to declare that “Associations ensure that the collective rights and interests of homeowners are respected and preserved.”  The reader should step back and examine what is being said by CAI. 

 

First, CAI is no longer saying HOAs are the best form of democracy.  Second, CAI is speaking not of individual rights and freedoms, the foundations of American democracy, but of “collective rights and interests“.  Third, CAI is declaring that indeed HOAs constitute a New America[v], a America based on a communal society, a socialistic society, and not one based on fundamental American values, beliefs, and principles as stated in our constitution. 

 

In CAI’s black-is-white and white-is-black world,  this declaration is consistent with its opposition to the constitution when it argued against “the unwise extension of constitutional rights to the use of private property by members”  to the NJ Appellate Court.[vi]  It is inconsistent with its statements that HOAs are democratic, at least not as practiced in America under the Constitution.

 

Looking at these Fundamental principles, CAI’s position on HOA democracy is clarified.  Items 9 and 10 address concerns for the individual homeowner.  Item 9 is a declarative statement of balancing collective rights with individual rights. It is not a goal statement, but a declarative statement which must be taken as an assertion of fact.  Item 10, pertaining to compromise with homeowners, is a guideline as it uses “should”.  In all fairness, CAI does declare in Item 8 that the HOA directors must obey the governing documents and the law.  Unfortunately, CAI fails to indicate that not only are the governing documents easily interpreted as an unconscionable adhesion contract, but that the laws favor the HOA and permit the loss of homeowner rights and freedoms.  Items 9 and 10 must be read with these facts in mind.

 

My “Alice in HOA Wonderland” Commentary referenced in footnote 2 also addresses the qualitative aspects of a democracy, as put forth by Professor Robert A. Dahl, and argues that voting alone — without due process of law, separation of powers and checks and balances — does not make a democracy.  This Commentary must be read to understand the simplified propaganda of Items 2 and 5, which resort to implications of bona fide democratic processes at work in HOAs just because homeowners are allowed to vote (unless not fully paid-up).

 

Fundamental Item 6 is CAI’s attempt to justify the New America of HOA governance with the misleading and simplified, “homeowners choose where to live and accept a contractual responsibility”, ignoring any discussion of adhesion contracts.  I addressed this “permanent campaign” statement in a Commentary[vii] that argued a wrongful application of public law doctrine to the binding contractual nature of HOA government.  “How does a person exhibit his consent to be governed” under a contractual arrangement, I asked.  Again, read this Commentary after reading Item 6.

 

 

 

 

 Notes