Category: Opinion

In keeping with the  highly controversial question in Washington of upholding the US Constitution as the supreme law of the land, advocates and HOA homeowners should look to the highly controversial question of the constitutionality of the HOA legal scheme. While much has been said on both sides, most of you including the BODs of HOAs who should know better, do not have all the facts regarding the true position of the national HOA lobbying organization, Community Association Institute (CAI). It actively lobbies, uses propaganda to advance its personal agenda, promotes, supports and protects this legal structure and scheme. Let’s take a closer look at what CAI stands for.

As a result of repeated arguments of the unconstitutionality of the HOA legal scheme, CAI was forced to address the question of HOA private governments operating outside the Constitution. In its CAI Press Release (Oct. 7, 2015)[1] CAI attempted to defend its secessionist position with reference to its amicus brief advice to the NJ Appellate Court in 2006[2] (890 A.2d 947 (App. Div. 2006)), which stated in relevant part:

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 . . . . (p. 21).

The business judgment rule is the correct standard for reviewing community association board decisions. (p. 4)

In addition, the press release goes on to say (emphasis added),

Contrary to conventional wisdom, Americans do not waive their constitutional rights when they move into a community association. In fact, courts have found that community association residents, by enacting reasonable rules for their own communities, are actually exercising their constitutional rights of association, contract, expression and assembly.

I posted a rebuttal, “CAI maintains HOAs do not violate the Constitution.”[i] Suffice it to say that the above says it all. In short, 1) contrary to the above, courts have upheld waiver or surrender of rights, even asserting implied surrenders and 2) CAI avoids addressing the questions of a valid consent to be bound or agree, the criteria to pass judicial scrutiny regarding the constitutionality of laws and contracts. Like with Trump, there is no defense the controversial claims of mini-government and quasi-government, but just questionable assertions.

It becomes imperative to draw attention of HOA boards to CAI’s strong, misguided influence over state legislatures and the courts to restore the protection of the Constitution to homeowners living in HOAs. The boards have a fiduciary duty to the membership who are still citizens of the US. HOA boards must recognize CAI’s secessionist position that has distorted the valid and worthwhile purposes and objectives of the HOA model, and take steps to divest themselves of its influence that serves CAI’s personal agenda.

References

[1] Homeowner Rights and the U.S. Constitution, “CAI News Release” – online (Oct. 2015).

[2]   CBTR v. Twin Rivers, 890 A.2d 947, (NJ Super. App. Div. 2006)),

[3] CAI maintains HOAs are protected by and do not violate the Constitution — not so! George K. Staropoli, HOA Constitutional Government (2015).

 

 

 

As I’ve repeatedly written here,[1] the fundamental justification for the validity of the HOA CC&Rs (declaration of covenants, conditions, and restrictions) resides in the highly controversial doctrine of a bona fide consent to be bound.

Edwin Meese III explains that the “Will of the majority” is a political mechanism for decisions to be made by the government:

The “consent of the governed” stands in contrast to “the will of the majority” . . . consent is the means whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate [and hence just] is whether that government rests on the consent of the governed. . . .  Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens.[2]

Prof. Randy Barnett wrote;

A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority …. A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the HOA amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.[3]

This doctrine raises the issue of ‘the tyranny of the majority’ when the minority is not given due respect nor the ability to freely and equally speak out on HOA governmental issues. The structure of HOA governance is not based on and contradicts fundamental American principles and traditional values.

The legitimacy of consent

Allow me to clarify the concepts of “the will of the majority” and “majority will,” with the “consent to agree.” While my discussion deals with our constitutional system of government, it applies to the private, de facto HOA system of government as well. Both claims to be representative democracies where the citizen-member agrees to be bound by a constitution (CC&Rs) and the decisions of their representatives, supposedly acting in their behalf.

As we are well aware, a citizen-member is held to be bound by the will of the majority as evidenced by means of a vote of approval even though he himself did not approve or vote. Yet a majority vote construed as the will of the people is antithetical to a government of the people. “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” It is a practical solution for a government of the people to be able to function, but the solution is contrary to a government of the people.

It is a mechanism to overcome a defect in the philosophical meaning of a democracy that takes the position that an individual’s minority vote is a tacit (implied) consent to be bound by the majority position. That goes for all constitutions or CC&Rs, or amendments, or to any other contract requiring the approval of a group of individuals.

In general, tacit consent fails because it turns the very notion of consent on its head. Since the goal of consent theory is to ensure that government derives its authority from the conscious choice of the individuals it is to govern.[4] (My emphasis).

 Agreement to be bound in HOA-Land

In HOA-Land,[5] tacit consent rules the roost! The national pro-HOA lobbying entity Community Associations Institute (CAI), the state legislators and the courts all have upheld the tacit consent legal doctrine as binding. In opposition, Keith Wittington speaks on the concept of popular sovereignty,

“Tacit consent purports to provide a rationale for obligating those of us, by chance or choice, have not made their approval of the government explicit. . . . Perhaps most significantly, we are taken to have consented tacitly to government action if we continue to vote for government.”[6]

Consequently, when your HOA says the majority rules since it represents the will of the owners just remember it’s just a means to grant the board the authority to govern. Representative democracy does not reflect the will of the people. Too easily the BOD, the government, rules as if it were the sovereign ignoring any responsibility to represent the genuine collective views of the people.

This is accomplished by rigging the HOA rule making and election processes that make no attempt to be fair and just procedures that reflect the will of the people as honestly as possible. It cannot say it truly attempts to represent any dissenting individual’s wishes, desires or views.

Intent of Commentary

I write this Commentary in the hope that HOA members will understand the true nature of the HOA governmental structure, which is not democratic; in the hope that they will no longer fall prey to the falsehoods of a democratic government and not accept that the BOD is here to help the HOA succeed in the best interests of the members. The BOD has assumed the position of sovereign and, like an emperor or king, can do no wrong if the members allow it.

 

References

[1] George K. Staropoli, “HOA representative government and consent of the governed”, HOA Constitutional Government (2019); “HOA Common Sense: rejecting private government (2013); “Buyer ‘Truth in HOAs’ Disclosure Agreement”, HOA Constitutional Government (2011); “’The Invisible, yet binding, HOA “agreements’”, HOA Constitutional Government (2007).

[2] Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.

[3] Randy Barnett, Restoring the Lost Constitution, Princeton Univ. Press, (2004).

[4] Keith E. Whittingham, “Chapter 5, Popular Sovereignty and Originalism,” Constitutional Interpretation, Univ. Press of Kansas (1999).

[5] See Citizens For Constitutional Local Government: The national pro-HOA lobbying entity Community Associations Institute (CAI), the state legislators and the courts all have upheld this

[6] Supra n. 4.

 

Yesterday the US Supreme Court denied hearing an appeal from the 9^th circuit’s homeless decision that held “it was ‘cruel and unusual punishment’ to enforce rules that stop homeless people from camping in public places when they have no place else to go.”[1] The Boise, ID lawsuit was based on 42 USC 1983 – violation of civil rights – alleging a violation of the 8^th Amendment prohibition on cruel and unusual punishment.

As many of you are aware I’ve also considered HOA foreclosure a violation of the 8^th Amendment against cruel and unusual punishment.[2]

“The Tennessee appellate court in Brooks found ‘that the foreclosure sale price shocked the conscience of the court.’ A home valued at over $321,000 was foreclosed for just $12,800 of which $6,734, more than half, went directly into the attorney’s hands.  That’s more than 25 times the “damages” to the HOA.”

This application of the 8^th Amendment can be easily extended to HOA foreclosures for the very same failing to provide another place to go. Many foreclosures create this unconscionable state of affairs that is only meaningful against homeowners who have a high equity in their home, otherwise it doesn’t pay for the HOA to foreclose. But they still foreclose! Why? As a punishment and they have been granted this special right allowed only for banks and other hard-money lenders.

It is well beyond the time for homeowners to make use of the powerful violation of the constitution arguments against their HOA! But, get a lawyer who as an appropriate understanding of constitutional law, and not just a real estate or HOA lawyer.

We can easily forgive a child who is afraid of the dark;

the real tragedy of life is when men are afraid of the light.

(Plato).

 

References

[1] Martin et al v. City of Boise, 920 F.3d 584 (8^th Cir. 2019).

[2] “Draconian punishment and intimidation, No. 8”, George K. Staropoli, HOA Common Sense: rejecting private government (2013). (Available on Amazon); ”HOA foreclosures and unclean hands,” George K. Staropoli, HOA Constitutional Government (2014).

The outcome of the impeachment process will have important consequences for HOA reform legislation at the state level.  Will Congress, especially the Republican Party Trump loyal stalwarts, fail to enforce the willful and intentional contempt for the social contract that binds all citizens – the US Constitution? In HOA-Land there is no meaningful enforcement of violations of the CC&Rs contract by the HOA president, the board of directors, the officers and the managers.

As we are well aware in HOA-Land, even with its façade of a democratic body, rogue presidents are untouchable. The members live at the suffrage of the HOA because the president can continue to act at will.

Failing to hold President Donald J. Trump accountable under the Constitution creates an atmosphere that will result in the death of democracy and all citizens will then live at the suffrage of the President. Any belief that Congress may come to the aid of HOA members and hold state legislatures accountable to the Constitution becomes a pipe dream. A failure to convict presents an open door for pro-HOA legislatures to disregard member-citizen constitutional protections with impunity.

Congress, especially the Republic Party Trump loyalists, must act with integrity and honor and remove Trump as President. It will serve as a warning and detriment for others that indeed the Constitution shall prevail and will be enforced as the Founding Father meant it to be.

Read more about the HOA-Land nation in America. StarManPub: HOA-Land Nation