Category: Opinion

I have taken excerpts from Senator Obama’s acceptance speech and applied them to the HOA regime.  The intent is not related to any political party position, but the content of the message.

 

 

1.  Obama. speaking about White House policy:

Out of work? Tough luck. No health care? The market will fix it. Born into poverty? Pull yourself up by your own bootstraps – even if you don’t have boots. You’re on your own. . . . It’s time for us to change America.

1.  HOA comment

Yes, homeowners living in HOAs are on their own.  It is an inescapable fact.  HOAs are unaccountable to the state government and are allowed to function in ways that would not be permitted by a de jure state entity.  While homeowners are subject to financial penalties and loss of their home for amounts that are usually less than 10% of their home value, board members are not penalized with substantial fines, jail sentences, or restrictions on holding board positions. 

Such a laissez-faire policy is a statement of public policy, a policy that says HOA violation of the laws and permits the implicit surrender of constitutional rights and freedoms, that is good for the general interests of the public.

And yes, it is time for a change, to remove the failure to protect homeowners and to apply constitutional rights and freedoms.

 

2.  Obama, on “The Promise of America”:

What is that promise? It’s a promise that says each of us has the freedom to make of our own lives what we will, but that we also have the obligation to treat each other with dignity and respect. . . . Ours is a promise that says government cannot solve all our problems, but what it should do is that which we cannot do for ourselves – protect us from harm . . . .  Our government should work for us, not against us. It should help us, not hurt us.

Individual responsibility and mutual responsibility – that’s the essence of America’s promise.

2.  HOA comment

The state acts as a banana republic, seeing no evil, hearing no evil and speaking no evil.  Such behavior reflects a favoritism for HOAs and an unconstitutional disregard for the rights of the people.  While there are laws regulating truth in lending, truth in advertising, equal opportunity employment, fair housing, etc, there are no equivalent laws to protect homeowners in HOAs.    In fact, there are not even any warning or advisory notices from state consumer agencies in order for homeowners to understand not only their obligations, but their loss of rights when living in an HOA.  And, the state disclosure laws are a miserable failure considering the absence of any warnings relating to the loss of one’s rights. 

The de facto approval of one group, the HOA, harming its very own owners and members, reflects a failure of the state legislatures.  The state has failed miserably in its duty to protect one faction against another, to use its appropriate police powers, which is necessary for the proper functioning of a democracy.

Instead of creating harmonious and vibrant communities, HOA regimes create a divisive and hostile community environment where neighbors spy on neighbors, where neighbors distrust and believe that other neighbors will deliberately destroy the community and lower their own property values, where the mantra of “maintaining property values” is the only objective of the HOA.  It is not required, as evidenced by the absence of any such “contractual” provisions in the CC&Rs, and exclusion from constitutional protections, to be fair, just, compassionate, or charitable.

 

 

3.  Obama, speaking of what America has lost

What has also been lost is our sense of common purpose – our sense of higher purpose. And that’s what we have to restore. . . . Now is the time . . . .

 

3.  HOA comment

 

This public policy toward a preference for private HOA government, reflected in unconstitutional special laws for special private organizations,  is a privatization not of some government services, such as trash removal or water electricity, but of the very function of government itself.  This privatization without the protection and application of the US Constitution and Bill of Rights is establishing a New America of independent HOA principalities.

 

Now is the time to stop the spread of private governments protected by legislatures catering to the special interests. Now is the time to restore the America of our Founding Fathers that, under current HOA public policy, is rapidly becoming a myth.

 

 

More information can be found in the new book release, Establishing the New America of independent HOA principalities.  See PVTGOV.

 

Based on the above CAI materials, we can safely conclude that CAI has equated “vibrant and harmonious communities” with “as defined in terms of the best interests of CAI members”.  It is highly irrational to believe and accept that the two are the same, that the interests of the homeowners, and even the HOA corporation, are identical to those of the vendors servicing HOAs.  Yet, this is the CAI position, while at the same time its lobbyists are proclaiming to the legislators that CAI speaks for the best interests of the HOA and the homeowners. 

 

 

The above materials also confirm CAI as a national lobbying organization with CAI “Central” controlling the local chapter LACs. CAI is a top-down structure.  There is no voice of the homeowner community.

 

 

 

Read the complete Commentary at Candor

 

 

 

 

 

Both parties and presidential candidates are oblivious to the changing landscape of America that extends beyond the physical to cultural, social and political landscapes.  Homeowners associations are protected, encouraged and supported by the state legislatures who are active participants in establishing the New America of privatized local governments.

 

“Governments are instituted among men deriving their just powers  from the consent of the governed.” — Dec. of Independence.

 

The only defense offered by the special interest promoters and legislators has been one specious argument based on “a consent to be governed” based on an unsigned contract,  and by ascribing de jure government attributes to the HOA. Attempts at reform legislation are met with the outcry of “contract interference”.  More specifically, on Art 1, Sec 10, of the Constitution, the disjointed clause 1, which states:  “No state shall . . . pass any . . . law impairing the obligations of contracts.”  Now there are certain implicit assumptions underlying this restriction to make this provision a fair and just restriction.  The equivalent statement in the Northwest Treaty Ordinance of 1787, adopted just months before the creation of the Constitution, makes an explicit statement of these fair and just understandings,

 

“Art. 2d.  “That no law ought ever be made  . . . that shall . . . interfere with or affect private contracts or engagements, bona fide [sic], and without fraud, previously made.”

 

It appears that the HOA supporters have been citing the wrong document, since neither “interfere” nor “private” appear in the Constitution.  The supporters rely on the unjust constructive notice doctrine that does not require explicit consent, understanding or an exchange of positions, all contrary to contract law.  Furthermore, the so-called “sacred” contract is allowed to be amended to the detriment of homeowners without their explicit consent.  This “open-ended” consent to abide by any amendment passed by the requisite amount of homeowners also flies in the face of not only contract law – agreements to agree – but also as a taking of private property rights indirectly by the HOA. 

 

The HOA, having the support and protection of the state legislature, is acting as the state’s surrogate in the taking of private properties.  There are no state consumer protection agencies to warn or advise homebuyers of the loss of their rights and freedoms when entering into  the court enforced “binding” CC&R contract.

 

This spread of homeowner associations contrary to American principles of democratic government is documented in Establishing the New America of independent HOA principalities, based on the author’s eight-year struggle to educate the people and legislators to obtain the necessary legislative reforms.  Find out more about this growing secession from the Constitution at StarMan Publishing.

 

Both Senator Obama and McCain must address the continued spread of this privatization of local community government, contrary to the ideals, values, principles and beliefs that founded this great nation.  They must look inwardly to America, and put their own house in order.

 

See also Memorial Day: American soldiers are defending a New America, one without democratic protections.

 

 

Today’s public policy does indeed allow for the secession from local governments by HOAs.  As private contractual organizations acting as de facto governments, the restrictions and prohibitions, and the permissions, freedoms and rights contained in the US Constitution and Bill of Rights do not apply to these HOA private government regimes.  Nor are there any state laws to generally apply state constitutions and laws to HOAs.

 

What applies to HOAs are only specific laws and court decisions, such as those granting some homeowner protections, and those restricting their rights to less than what is provided under state laws and municipal ordinances.  Examples are: to fly the American flag, to park cars on public streets, or to place signs on their private property.

 

Further lack of important democratic protections include the lack of an independent tribunal, for example, to issue “search warrants” or to sign/approve “criminal charges” – issue fines under reasonable cause. There is no legal justification or authority for the HOA board of directors, or some vaguely worded ACC committee, to consider the rights and freedoms of the homeowner. This is simply because they have no such rights under their “constitutions, the CC&Rs, and state governments have failed to insure that these private constitutions protect their rights and freedoms under the laws of the land.  Any other alleged homeowner rights would require, in the absence of specific statutes, the courts to determine whether or not they are entitled to such rights.

 

Yet, the special interests, including the national lobbyist Community Associations Institute, the assocaiations of HOA boards, and the associations of management firms or HOA attorneys, all favor the status quo.  The only exception is the CAI promotion of the national adoption of the onerous and repressive Uniform Common Interest Ownership Act (UCIOA) model for state laws, which serves to strengthen these independent principalities.  UCIOA does not contain a homeowners’ bill of rights either.

 

The application of specific laws to protect and support private organizations that govern the people within a subdivision territory, in pursuit of maintaining property values, only serve to establish a New America of independent HOA principalities. They must be found to be a wrongful application and violation of the US Constitution and Bill of Rights.

 

Read more about The New America of Independent HOA Principailities.

 

                     

 

In early January 1930, Mohandas Gandhi composed a Declaration of Independence for Indians against the British Raj. I have paraphrased this document as befitting the state of affairs today with the state protection of authoritarian homeowners association regimes.

We believe it is the inalienable right of the [homeowners in HOAs], as of any other [citizen], to have freedom and enjoy the fruits of their toils and have the necessities of life, [liberty and the pursuit of happiness].

The [state legislatures] have not only deprived the [homeowners in HOAs] of their freedom but have based itself on the exploitation of [these homeowners], and [have ruined their respective states] 

economically [by failure to hold HOAs financially accountable],

politically [by depriving these homeowners of their due process and their equal application of the law protections that are applicable to all other government entities],

culturally and spiritually [by supporting the HOA’s objectives of maintaining property values without protecting the rights and freedoms of the homeowners]. 

We believe, therefore, that the [state legislatures] must sever their connection to, [protection and support of, and cooperation with these independent HOA principalities] and [deny their secession from the US and state Constitutions].