Category: Opinion

Posts by GKS

Take the HOA political free speech poll

I’m pleased to see that Deborah Goonan has followed up on my Jan. 29 post regarding Arizona’s SB 1412 bill that restores and protects fair elections and campaigning by members.   Glad to see that she also asked AZHOC, Dennis Legere,  to get involved. Good work Deborah!

BUT we need more active involvement from other groups within and without Arizona.  You are needed to create a bandwagon of support so your state will get the message!  And that also calls for taking the free speech poll today, on left panel, which will demonstrate to your legislature that there is a serious need for such a bill in your state.  Completely private, I don’t get name or email address.

sen_Gov

nation-coverRK

 

CAI reacts to loss of HOA civility

CAI’s new venture into creating harmony by means of a pledge of civility is astounding! I don’t know where to begin. It says be civil, but follow our Rights and Responsibilities program.

Understand that CAI claims some 347,000 HOAs throughout America and a membership of some 40,000. Doing some simple arithmetic – now follow along – that means at most CAI has a miniscule 11.5% presence in HOA-Land. And they dare speak of majority rule when its lobbying before state legislatures affects some 88.5% non-involved HOAs.

Here’s what the CAI Civility Pledge and Civility Pledge Form have to say, in part,

By adopting the Community Association Civility Pledge, community association boards commit to embracing principles that establish a framework for effective community conversations.

The Community Association Civility Pledge was created by CAI’s College of Community Association Lawyers in recognition of the critical responsibility of a board leader to facilitate community conversation about important issues.  

5. We also encourage all residents to review Community Associations Institute’s (CAI) Rights and Responsibilities for Better Communities.

These commitments are guiding principles. They are not governing documents or legally enforceable and do not give rise to penalties if they are not followed.

​ Note that all 5 items on page 1 of the Civility Pledge Form begins with “We.” The form is addressed to the BOD and asks the BOD to sign the pledge and send it on to “CAI Central” as a matter of record.

So, what’s happening? Well, a couple of things come to mind. First, it’s not binding on anyone just a wish, a hope, a desire, but not seeking governing document reforms.

Second, How about CAI legislating such governing document reforms with effectiveness – penalties against the BOD that will help keep them in line. Maybe that will stop average people from being frustrated that there is no one to help them.

Third, maybe CAI is running scared that California’s SB 323 restoration of fundamental rights and freedoms for members will catch on in other states, like is now taking place in Arizona. But restructure the HOA legal model, as I’ve proposed, to make that a reality oh no!   (See HOAs are in need of a major restructuring, published on Jan. 25, 2020, a week before this pledge showed itself).

Finally, in my 20 years dealing with CAI I have never seen such a request by CAI for BODs to pledge or sign anything except membership applications and dues payments.   This format imitates by Truth in HOAs Disclosure Agreement of 2011.

Homeowner Association (HOA)

Buyer “Truth in HOAs” Disclosure
&
Consent to be Governed Agreement

By my signature below, I , the undersigned Buyer, have read and understood the restrictions imposed upon me by law and the courts as a member of an HOA, and have agreed to the waiver and/or surrender of my rights explicitly contained below. All other rights not expressly prohibited below or expressly granted below to the HOA are retained by me.

I, the undersigned Buyer, and the undersigned HOA by its President, hereby acknowledge and consent to the following:

The opening paragraph requires the buyer to explicitly acknowledge his awareness and understanding of the CC&Rs and that he’s surrendering his rights. It also asks for the HOA president to attest to the truth of the above conditions and legalities of the governing documents. No wonder nobody signed it! It was my response to the pro-HOA forces mantra you agreed, you agreed, you agreed. So, I simply put it to them, put up or shut!

Now that tells you something, doesn’t it? CAI’s pledge is more puffery to sell to the policymakers, the legislators and the media. It doesn’t argue for legislative reforms to require BODS to follow a code of ethical and legal conduct, which CAI has the power to sponsor in every state. DON’T BUY IT!

 

 

Authorities for protected HOA political speech — SB 1412 poll

In regard to Arizona’s SB 1412 seeking free political speech with regard to HOA governance issues, please see the following Commentaries containing relevant court opinions and California bill, SB 323, passed into law last year. Don’t forget about the important references — endnotes — found in these Commentaries.

Take the HOA public issues poll in confidence. Complete privacy. I don’t get name or email address, so take the poll today!

  1. Political free speech both without and within the HOA (2018).
  2. NJ Supreme Court upholds constitution against HOA free speech electioneering violations (2014).
  3. CA SB323 a model on fair elections for all states (2019).
  4. courts hold HOAs as political second governments with public issues (2009).
  5. Protecting HOA political free speech on matters of general community interest (2015). Applies anti-slapp laws protecting HOA free speech.

 

 

AZ SB 1412 reflects move to HOA constitutional reforms

ALERT to Arizonans — SB 1412 seeks to prohibit HOAs and condos from restricting political free speech. Members are permitted to associate, meet, discuss, show signs regarding political activity.  Key wording:
“AN INDIVIDUAL MEMBER OR GROUP OF MEMBERS MAY ORGANIZE TO DISCUSS OR ADDRESS PLANNED COMMUNITY BUSINESS, INCLUDING BOARD ELECTIONS OR RECALLS, POTENTIAL OR ACTUAL BALLOT ISSUES . . . .”
GET INVOLVED!  Don’t let CAI dump this CONSTITUTIONAL RIGHT enjoyed by citizens outside HOAs!  Post on your blogs. Contact the committee chair and members  NOW!  Assigned to Senate GOV under D. Farnsworth.
Here are the GOV committee emails:

Dfarnsworth@azleg.gov; sborrellli@azleg.gov

Lalston@azleg.gov; Vleach@azleg.gov; Jmendez@azleg.gov; fpratt@azleg.gov; vsteele@azleg.gov

LET YOUR LEGISLATORs KNOW WHERE YOU STAND ON RESTORING CONSTITUIONAL RIGHTS FOR HOMEOWNERS. Take the poll on the left panel today!

HOAs are in need of a major restructuring

Whether you like your HOA, or dislike your HOA, is immaterial. It’s all about the Constitution and the HOA legal scheme. What matters is whether the HOA legal structure is a danger to the country, because it will happen again. And none of us can have confidence, based on the historical record, that it will not happen again because . . . every day it is allowed to continue at will.[1]

It is well past the time for a restructuring of the HOA model of local government formulated some 56 years ago by ULI in 1964 — The Homes Association Handbook. In 1973 CAI was formed to deal with the persistent problems facing the HOA model, and in 1992 CAI was forced to change its educational tax-exempt status to that of a business trade group in an attempt to deal with the continued problems with HOA.[2] In 2005 it had to drop HOAs as a member due to conflicts with the purpose of a business trade group — HOAs are consumers of CAI services.

These HOA problems and issues are endemic to the legal model of unconstitutional, private governments as a result of the intents and motivations behind the introduction of HOAs: to make $$$ by means of a mass merchandising effort.[3] Constitutional considerations were ignored and avoided by focusing on the legalities of real estate law and equitable servitudes to justify the legal authority over the HOA members. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.

There is no denying that the HOA subdivision managed by competent boards and professionals appeals to the desires and wants of home buyers and bring many benefits. It comes as no surprise that the vast majority of persons living in an HOA approve and love their HOA, finding only minor problems with the board of directors or HOA managers. The annual “satisfaction” surveys produced by the pro-HOA trade group, CAI, reflect this positive attitude.

However, the HOA legal structure and scheme is authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law.

But the HOA is truly a totalitarian democracy. A totalitarian democratic state is said to maximize its control over the lives of its citizens by using the dual rationale of general will (i.e., “public good”) and majority rule.[4]

Prof. McKenzie wrote in 1994: “HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[5] The authoritarian nature of HOA-Land is masked by a thorough indoctrination that presents a false picture of the real estate subdivision as democratic, inappropriately named a community, simply because the members are allowed to vote, as meaningless as it is.

The HOA danger to the Constitution has been presented in several Commentaries herein, and in the white paper found in the book, The HOA-Land Nation Within America.[6]

There is no denying that the HOA subdivision managed by competent boards and professionals appeals to the desires and wants of home buyers and bring many benefits. However, as this whitepaper addresses, the means to this end are highly suspect and harmful to our democratic system of government.

StarMan Group, HOA Management Consulting, offers a program to resolve many of the substantive defects with HOAs by means of the complete restructuring of the model: a program of organizational development. It also requires the removal of the adverse influences by the CAI School of HOA Governance as I collectively refer to CAI’s policies, best practices, guides, communications, seminars and certifications, and in its Manifesto.[7]

consulting SIG image1

References

[1] Rep. Schiff’s (Rep. Adam Schiff is the leading Democratic impeachment prosecutor), opening argument Friday, Jan. 24, 2020, appealing to the Senators to uphold the Constitution. “Whether you like the president, or dislike the president, is immaterial. It’s all about the Constitution and his misconduct. What matters is whether he is a danger to the country, because he will do it again. And none of us can have confidence, based on his record, that he will not do it again because he is telling us every day that he will.”

[2] See in general: Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994; Donald R. Stabile, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing (funded by CAI and ULI).

[3] See in general, “Analysis of The Homes Association Handbook,” George K. Staropoli (2006).

[4] George K. Staropoli, The HOA-Land Nation Within America, p. 22 (StarMan Press 2019).

5 Supra n. 2, Privatopia.

[6] Supra, n.4, p. 4.

[7] Community Next: 2020 and Beyond (May 5, 2016).  A manifesto is a public declaration of intentions, opinions, objectives, or motives, as one issued by a government, sovereign, or organization. A white paper is an authoritative report or guide that informs readers concisely about a complex issue and presents the issuing body’s philosophy on the matter. It is meant to help readers understand an issue, solve a problem, or make a decision.