A little earlier I had commented that HOAs are here to stay, but face strong reforms. It was an appeal for all to get their voices heard and take the HOA-Public Attitude Survey. Allow me to clarify my position.
“HOA” has 2 common connotations: as a model of authoritarian private local government or as the real estate “package” of amenities, landscaping, and certain infrastructure. I have long maintained that the real estate package represents the end but the HOA government model is not the best means to achieve that end. And that state legislators have treated HOAs as independent principalities with their pro-HOA laws and support of de facto governments devoid of constitutional protections for HOA members.
The overwhelming reform legislation across the country presumes and accepts the validity of the governing documents and state laws. This is a loser position!
It implies the acceptance of the legitimacy of legal arguments supporting the governing documents and pro-HOA statutes. Advocates should be denying their validity and constitutionality; by failing to oppose these defensive arguments homeowners have put themselves in the weaker position of, Please sir, can I have some more justice? An example of reform legislation that challenges fundamental wrongs has been summarized in HOA Common Sense and the HOA-Land culture is presented in The HOA-Land Nation Within America .
Example: not only demanding the licensing HOA managers but holding them to the same statutes and rules – not CAI’s standards — as required of city/town manager; holding the BOD to the same standards as city/town councilmen. The constitutional arguments to use include: a violation of the equal protection of the law, holding the HOA as a state actor, or an unconstitutional special “franchise” of the state relating to these real estate “packages.” (“franchise: an authorization granted by a government or company to an individual or group enabling them to carry out specified commercial activities, e.g., providing a broadcasting service or acting as an agent for a company’s products.”
Advocates must not ignore these broad, constitutional arguments but educate themselves to understand them. I am urging advocates and homeowners to follow the path of the Founding Fathers who stopped toying with the Articles of Confederation as unworkable. Rather than continue to make the Articles work, they did away with them and created the Constitution of the United States.
HOA-Land will still be here but which form will it take? Spend another 30 years as before or go for fundamental reforms?
HOA Constitutional Government 