Category: Opinion

The New Jersey Supreme Court heard this appeal that included issues of violations of the NJ constitution by the Twin Rivers HOA. The court held,

We reverse the general ruling in respect of the fundamental rights exercises implicated that TRHA was not subject to limitations imposed by the New Jersey Constitution and that the business judgment rule and contractual standards applied. We remand plaintiffs’ claims in counts one, two, and three of the complaint for reconsideration under the proper standard.

This is a solid victory that HOAs cannot operate outside the Constitution by arguing that they are just a simple private agreement among consenting adults, not to be interfered with by the government. In essence, that they are principalities operating with their own, untouchable constitutions.

CAI amicus curiae brief in opposition:

This Court must balance the plaintiff’s claims that focus on their perceived individual “rights” versus the rights and legitimate economic expectations of other homeowners.

In the context of community associations, the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) raises the likelihood that judicial intervention will become the norm,and serve as the preferred mechanism for decision-making,rather than members effectuating change through the democratic process.

Court filings:
The complete opinion (pdf)
appeals brief (pdf)
CAI amicus brief (pdf)
Response to CAI (doc)

More and more homeowners across the country are seeking information on homeowners associations, because in the past the only information that has been available has been from the industry supporters. Even state web pages, in many states, only provide links to the industry supported web pages and not to homeowner rights advocacy pages.

The people want more, and along with other advocacy websites, PVTGOV.ORG, the website for Citizens for Constitutional Local Government, Inc, brings the other side of the picture — the side that has been kept from the public for too long. It has been viewed more than 40,000 times for those seeking assistance from oppressive and abusive private HOA governments.

The truth is Out There!

HOA SURVIVAL GUIDELINES UNDER ACCOUNTABILITY LAWS

As more and more state legislatures realize that they cannot continue to protect homeowner associations that deny citizens their fundamental rights and freedoms, and that the grievances repeatedly brought before them are legitimate and well grounded in law, the existing un-American form of HOA government and the way of life promulgated under these authoritarian regimes will cease to exist. The HOA, as with the Anti-Bellum South, will be gone, Gone with the Wind.

State legislatures will impose more and more stringent and necessary laws and regulations on these regimes as has been warranted by the failure of and repeated resistance to self-reform. The HOA will be held accountable under the laws of the state and country, as is required of every other level of government in these United States of America.

See more …

Comments on CAI’s Common Ground, Jan-Feb 2006 article, Quality of Life, relating to CAI’s 2005 survey of HOA satisfaction. (See http://pvtgov.blogspot.com/2005/12/analysis-of-2005-cai-hoa-survey.html for a detailed analysis of the survey).

Common Ground
It’s enough to make you wonder about all those screaming headlines regarding abusive, out-of-control HOAs. “Having gone to a lot of [association board] meetings where there is some unhappiness with communities,” says Howard A. Goldklang, CPA, the current president of the Foundation, “I was a little surprised that there wasn’t some negativism” reflected in the survey.

But Jordan thinks association unrest has been deeply exaggerated. “I think there’s a lot of great stuff we know instinctively is true, but it’s nice to have it backed up,” says Jordan, a partner with the law firm of Powers Phillips, in Denver. “The horror stories we hear are the 2 or 3 percent minority. It just happens to be a loud minority.” Likewise, Goldklang calls the satisfaction rate the survey’s “most significant” finding. “I’ve always felt this way without a study-that association living is very positive,” says Goldklang, who is president of Goldklang, Cavanaugh & Associates, in Fairfax, Virginia, and also a Common Ground contributing editor. “It provides a lot of structure and it provides a lot of areas where it takes concerns away from the homeowners and provides leadership.”

Const. Gov.
Here we go again, the majority is allowed to abuse the rights of the minority in violation of all the principles of the American system of government. The private, authoritarian HOA government has no place for the protection of individual rights as mandatory under the Constitution, nor attempts to establish a separation of powers, or checks and balances doctrine to insure against the tyranny of the government, and to provide for due process of the law.

The survey does not ask those questions of a voluntary surrender of rights, if the homeowners do indeed realize that they surrendered these rights, or that they are not subject to the same protections of homeowner rights as all municipal governments are subject.

A violation of the law is a violation of the law, no matter if just a handful of people are abused. That’s a fundamental principle of our system of government, and any deviation for a legitimate de jure government interest, not a private government interest, must be justified under judicial scrutiny. HOAs represent an un-American, controlled from the top, form of government where all the residents must conform and obey the rules/laws for the benefit of the state — the HOA.

Common Ground
Either way, Nelson(1) thinks the Zogby results offer a striking contrast to political schisms at the national level. “If you take the United States right now [and ask people,] ‘Do you think we’re headed in the right direction right now?,’ half the people would say no,” Nelson says. “But a lot more people seem to think their associations are working out pretty well right now than think the United States is working out. People are a lot more happy locally than they are nationally.”

Const. Gov.
Nelson also argue for the succession of HOAs from local municipal government, because the privatized HOA will replace the services and functions of municipal governments in the future (See Chapter 20, Neighborhood Succession, in this book).

Note 1. Author of Private Neighborhoods and the Transformation of Local Government

Excerpts from page 8 of the November 17, 2005 Background Paper to the California Joint Commission discussing a CID Ombudsman are well worth repeating:

It is extremely hard for a homeowner to challenge the rules under which they live, if they have been approved by the HOA, and the stakes for every homeowner can be very high.

CID boards of directors have the ability to limit a freedom which no counterpart for nearly any other kind of government authority – the liberty of an individual homeowner to use his own property.

While most people who get involved in political activity at the local level, state or federal level do so as an individual choice—and many decide not to make that choice – participation in an HOA [the governmental body of the CID] is a necessity of ownership in CIDs.

[I]t is clear that a substantial number of CID owners do not fully comprehend how powerful the terms in the CC&Rs, the HOA and its board of directors can be – and how critical it can be to them to be an active member.

My commentary can be found at: CA-Ombudsman

The complete Background paper can be found at CA_background