Category: Opinion

In its lobbying efforts, and other propaganda efforts to promote the acceptance and support of planned communities with homeowners associations, Community Associations Institute, CAI, has made use of models of representative democracy generally known as voting “delegate systems”.  Simply stated, HOA members vote for their “representative” or delegate in their “district”, which is some predefined neighborhood.  The delegate gets to vote in place of the homeowner-member on issues requiring a membership vote.

The problem is, these delegates have no real powers because the Declaration of CC&Rs determines who is responsible for the operation of the HOA form of governance, and that is the Board of Directors.  And we all know that the CC&RS are not modeled after the US Constitution, Declaration of Independence, or contain any Bill of Rights protections, or on the principles of the social contract, or on John Locke’s The Second Treatise of Government.  No, the 1964 marketing plan for planned developments, as we know them today, was the Urban Land Institute’s Homes Association Handbook, TB#50,[1] that was based on profit motives for the real estate interests. 

This illusion of democracy at work reminds one of the “people’s democracies” where the people vote for their representatives who possess very little real power, and are subject to a Central Committee, or to Commissars, who control the government.  The HOA form of governance is not the product of attempts to produce a more perfect government than our current form of democratic government, but is the adoption of the top-down corporate model of governance with the board of directors in control for all practical considerations.[2] 

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A higher authority — a belief in a purpose to life and which gives meaning to our activities – has served to set ethical and moral values throughout the ages. 

But, God is dead.  God has been dead for a long, long time.  So, anything goes and there is no need to obey some higher authority.  Our politicians learned this very quickly and dedication to public service — service to make a better society — has been replaced with “leaving a highly favorable lasting legacy”.  And, the majority of people have come to accept a much lower standard for our leaders, one that makes the politician “just another guy like us, doing what we the average guy would do”. A good politician is one who is simply perceived as “cool”.

Our judicial system no longer believes that all men “are endowed by their Creator with certain unalienabale rights” arising from “Nature’s God”, or “that to secure these rights governments are instituted among men”.  The Justices have taken these rights away and have redefined and interpreted our rights and the Constitution, seemingly influenced by the fleeting moment in history and how it makes them feel good.  This human behavior was anticipated by our Founding Fathers who took precautions to prevent or to lessen its harmful affects. 

But, God is dead, killed by these same Justices in the name of the same Constitution that they reinterpret quite freely without any apparent rhyme or reason.  And in their infinite wisdom, the Justices have failed to provide a much-needed replacement for this higher authority, leaving the people to choose for themselves what is proper conduct and behavior for society.  The result has been predictable: anything and everything goes.  “What is good and proper” has become “whatever makes you feel good.”

So, the people may write their own private constitutions to govern communities, and they need not comply with the US Constitution, or at least only comply with what the Justices will uphold and enforce if we can decipher whatever that is. Yet, it appears that whatever makes the community feel good is OK.  If its profits first, or “maintaining property values” first, who’s to say they can’t?

Who is to say, “No?”  Our Justices, having removed a “higher authority” as a guide to maintaining order, direction and goals for a society, have established no ethical or moral doctrine to replace “higher authority”.  Our political leaders firmly believe in their own personal view of “what’s good for me is good for the country.”  Our religious leaders have failed to rally to the dangers of a directionless and leaderless society.  In this leaderless void, the answer has become, “whatever makes you feel good”?

Quo vadis, homeowner?  Where are planned communities and homeowners associations taking you?

Homeowners seem to prefer the private contractual government arrangement that controls and regulates not only the use of their private property, but also the behavior of the people themselves within the homeowner association community.  They seem to prefer the policing and enforcement functions of the HOA designed to maintain property values, and turn a blind eye to the lack of protections of their rights and freedoms within this independent form of authoritarian government.

. . . .

One can only conclude that homeowners under HOA regimes must look to their private constitutions, their CC&Rs, for whatever protections they may have, and not to the US Constitution.  Unfortunately, in order to make enforcement first and foremost within these regimes, old proven methods had to be employed – the suspension of fundamental rights and freedoms in the HOA “constitutions”. 

This seems an acceptable trade-off for many homeowners in New America.

Read the complete commentary at Experiment.

Homeowners seem to prefer the private contractual government arrangement that controls and regulates not only the use of their private property, but also the behavior of the people themselves within the homeowner association community.  They seem to prefer the policing and enforcement functions of the HOA designed to maintain property values, and turn a blind eye to the lack of protections of their rights and freedoms within this independent form of authoritarian government.

. . . .

One can only conclude that homeowners under HOA regimes must look to their private constitutions, their CC&Rs, for whatever protections they may have, and not to the US Constitution.  Unfortunately, in order to make enforcement first and foremost within these regimes, old proven methods had to be employed – the suspension of fundamental rights and freedoms in the HOA “constitutions”. 

This seems an acceptable trade-off for many homeowners in New America.

Read the complete commentary at Experiment.

 

“Why should the NJ Constitution be invited to upset the contractual understandings that the members of this community have upon purchasing their condominiums and their townhouses?  These people buy-in because they don’t want the . . . .“

This question was asked by a New Jersey Supreme Court Justice during Oral Arguments in the Twin Rivers HOA constitutionality case in January 2007.  It is a very revealing question, reflecting the prevalent view within our society, but surprising when coming from a state supreme court justice.  It accepts the false premise that whatever private parties contract together should not be subject to judicial review and the constraints of the US Constitution.

Now, in part, the statement is correct if viewed solely as a previously agreed upon contract with stated obligations, since the Constitution clearly states,  “No state . . . shall pass any . . . law impairing the obligations of contacts . . . .”  Art I, Sec. 10.   Therefore, since the homeowner association Declarations are previously agreed to obligations, the state shall not “upset the apple cart”.  But, it is well-established legal doctrine that the state has the right under its police powers to regulate contracts, and has done so in all arenas except for planned communities with an almost sanctified religious deference and hands-off recoil.  Why the special treatment, also contrary to the US Constitution?

This question by the NJ Justice also reflects a broader, more serious issue that the Constitution is no longer the supreme law of the land.  That, when it comes to HOA Declarations of CC&Rs, private parties may contract to anything they want.   It is even more disturbing when this Justice clearly knows that the constructive notice doctrine binds the homeowner and that there is no explicit surrender of constitutional rights when it comes to the HOA supposed “contract”.  Just to what “contractual understandings” this Justice is speaking of had not been presented to the court, and reflects a personal opinion of the Justice and an abuse of discretion.

Welcome to the New America.