On this Memorial Day, May 30, 2016, America is fighting battles in a number of countries where our sons and daughter and our brothers and sisters have paid the ultimate price defending the United States of America, and the democratic values and beliefs of justice and equality for which it stands.
Yet, we have those in America firmly believing that the Constitution protects free speech, but not when private contracts are involved. And they support private agreements called Declaration of Covenants, Conditions and Restrictions (CC&Rs) that cross over the line between purely property restrictions to establishing unregulated and authoritarian private governments. Florida attorney Ryan Poliakoff (brother of the late CAI activist attorney Gary Poliakoff) is one of them. These HOAs (an all-inclusive term) operate outside our constitutional system of government.
In his May 28th column on Florida Today, he asks and answers the title question, “Did you sign away your free speech with HOA?”[1] with a firm YES. Why and for what system of government are our troops fighting and dying for? For the America of our Founding Fathers or for the misguided special interests who have a financial interest in HOA-Land, and who act and function as an oppressive oligarchy. (It is estimated that 20% – 23% of Americans live under HOA private governments). In our case, it means rule by the few special interests who lobby nationwide for pro-HOA legislation to protect the status quo.
I’m shocked at Mr. Poliakoff’s biased and simplified explanation and justification for HOA private governments; after all, he is a lawyer and dares speak of The Bill of Rights. He writes,
Private entities have no obligation to respect your right to say whatever you want, no matter how offensive it may be. . . . So if the rights and obligations of a mandatory membership community are contractual, and not municipal, shouldn’t they be allowed to restrict speech?
The most blatant misrepresentation of the facts occurs when he argues (emphasis added),
Personally, I agree with the majority position. I see no reason that persons who voluntarily bind themselves by, knowingly, buying property subject to restrictions should not be bound by those restrictions (unless the state passes laws that expressly limit the association’s power, such as the condominium laws that protect owners’ right to assemble, or the federal laws that guarantee every person the right to fly an American flag.)
Otherwise, I view deed-restricted communities as guided and governed by contracts, and I believe they should be treated, generally, the same as any private contract between individuals”.
I vehemently object to these misleading statements by an attorney! Apparently he has failed to read, or refuses to rebut, arguments that I raise with respect to 1) alleged agreement to a contract,[2] 2) HOAs as de facto governments hiding behind the privacy of the questionable CC&Rs contract,[3] and 3) the application of US Supreme Court criteria for a bona fide surrender/waiver of constitutional rights, including due process and the equal protection of the laws, which the HOA legal scheme fails miserably.
Furthermore, he should well know that the alleged contract is not between individuals or other HOA members, but between the HOA and the individual owner. Yet, he admits, by implication, that all HOA reform legislation is an attempt to restore lost rights, rights that belong to all Americans.
Mr. Poliakoff also informs his readers that he co-authored the 2009 book, New Neighborhoods[4] that contains the very same attitude and view towards independent HOA principalities as professed in this article. In my Amazon book review I wrote (emphasis added),
Ellen Hirsch de Haan, former CAI president, acknowledges that the biggest problem for the successful operations of these associations “is the lack of education among the consumers who are buying homes and units . . . . And the authors inform their readers that, “These neighborhoods could not operate without . . . the owners, who give up certain traditional homeowner rights for the good of the community.” “This is good”.
“The Poliakoff’s continue, informing their readers that “out of anarchy came utopia“, and quote an appellate court dicta that “each owner must give up a certain degree of freedom of choice which he might otherwise enjoy living in a separate, privately owned property.” The authors define the purpose of this book as, explaining “the workings of these communities — these New Neighborhoods — . . . and to let purchasers know just what they are getting into.”
I believe that Mr. Polikoff has failed miserably to fully educate the legislators, the media and the home buyers in both his book and in his recent article, both of which present the special interest “party line” and not the facts, the whole facts, and nothing but the facts.
This is not new or unique to Mr. Poliakoff. CAI has recently released a series of white papers, which I collectively refer to as the CAI Manifesto.[5] Kelly Richardson, national CAI Trustee and Realtor wrote about socialistic housing and submitting to the will of the community because, allegedly, that buyers had openly agreed to the surrender of their rights.
That’s the root of so many of the HOA horror stories we’ve all heard, as owners normally do not realize that their submission to the will of their new community is accomplished by the automatic application of covenants running with the residence. . . . The most caustic critics of HOAs in general are actually opposed to the concept of joint ownership. This is a completely unrealistic position . . .[6]
The positions taken in support of HOA-Land, as evidenced above, constitute a political movement — as any other recognized movement — that consists of separate and disparate collection of private governments not subject to the constitution because of a “verboten,” hands-off attitude, and have created 2 Americas. The divide is just a dangerous as a country divided over political philosophy as witnessed in our current political campaign. It must not be allowed to continue regardless of what party or person will sit in the White House.
References
[1] Did you sign away your free speech with HOA, FloridaToday (USA Today), Ryan Poliakoff , May 28, 2016.
[2] Consent to be governed, No. 4 of HOA Common Sense: rejecting private government.
[3] HOA Governments in fact, No. 9, Id. See also, CC&Rs are a devise for de facto HOA governments to escape constitutional government.
[4] New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.
[5] CAI manifesto: CAI’s plan for HOA-Land in America; See also, Deborah Goonan’s critique in “HOA laws and Free Speech, Right to Know”.
[6] Realtor magazine publishes HOA socialism by CAI Trustee, quoting A Note of Caution About HOAs, RealtorMag, Official Magazine of the National Association of Realtors, February 2015.
HOA Constitutional Government 