HOA advocate credentials are lacking

Should the FEDS get involved in HOA-Land abuse even though HOAs are controlled by state laws?  It would need to come under the approach that state laws are so varied that uniform laws must be adopted, and not by ULC that is steeped in the past and promotes more bad laws. This “what state are you in and that’s the law” has been a general argument for federal law and is a reason for federal intervention in the courts.

With all due respect for the hard work of several reform social media groups, getting the attention of state legislatures and DOJ/FBI depends upon the credentials of advocates. Can they make arguments at the level where the courts and lawyers will stand up and take notice? This is a longtime failure of HOA reform efforts even though they have obtained important reforms here and there over the years.

These reforms, for the most part, are rooted in “operational” reforms that affect the laws now on “the books” —  the overwhelming bad laws dealing with day-to-day operations and functions of the HOA. This reform legislation is needed to bring  a fair and just treatment under the constraints of the HOA legal scheme until reforms of substance are adopted.

Allow me to explain with an example.  There are many “good” laws that are designed to protect the homeowner and his rights, and put restrictions on the HOA. They may even have strong enforcement provisions with criminal violations.  Great? On the surface yes because enforcement is still the task not of the state, but the homeowner who has to bring such charges. The state – district/county attorneys and attorney generals — are not obligated to act. BUT, by definition, a crime is an act harmful to the state beyond one person. “Crime is “the intentional act usually deemed socially harmful or dangerous . . . prohibited and punishable by law.”

This “not my job,” hands-off posture constitutes an error of omission by the state that, under the obligations of the Constitution.

“We the People of the United States, in Order to . . . establish Justice, insure domestic Tranquility . . .  promote the general Welfare . . ..”

Stay with me.  What is necessary is to rewrite the CC&Rs that is based on The Homes Association Handbook, as the Founding Fathers did when they threw out the Articles of Confederation for the US Constitution.  There has been and is little support for this approach, which I believe is the result of a lack of understanding and a fear that their HOA would be abolished —  a very successful fear mongering by CAI. And that includes a fear of CAI.

Over the years I filed an IRS tax-exempt complaint against CAI for having the customers of its members also a member of the business trade group in violation of its tax-exempt status. In 2005 CAI had to drop HOAs pe se from membership. Earlier this year I filed a 40-page complaint with the antitrust division of DOJ arguing that CAI was a monopoly, and has acted to thwart competition and the free entry into the HOA education market. 

Recently I asked for support of my appeal to the Federalist Society  to encourage and promote dialogue on the constitutionality of and loss of citizen rights in an HOA. The Society’s mission is educational for lawyers and student lawyers, and has a national  program of local law school chapters to debate issues. (Notable attorneys and government officials attend these meetings. My grandson had the opportunity to meet the Governor.)  I argued that new lawyers sally forth lacking the truth about HOA-Land serving to perpetuate the unjust laws.

HOA reformers and groups must present themselves as knowledgeable advocates, united nationally, who understand the law and the judicial process.  Reformers need to be able to stand up before CAI, the courts, and state legislators and win!  As I posted elsewhere, I am still waiting for an answer to my 2006 challenge to debate the CAI “elite” lawyers who are members of CAI’s CCAL.

As the renowned international management consultant Peter F. Drucker made clear, “A mission statement has to be operational; otherwise, it’s just good intentions.“

Political dynamics at play in HOA-Land

“In order to succeed you must accept the world as it is and rise above it”

Historians have referred to the American Revolution as the “American Experiment” because it introduced a modern, as of that time, form of a democratic republic.  Would such a government based on the principles, beliefs and values of our Founding fathers survive the passage of time?  However, over the past century there has been a slow but steady erosion of the American Experiment. 

Simply stated, the following questions remain unanswered by state legislatures or HOA special interests, first asked in 2005:

  1.     Can a legislature delegate its functions, not government services but functions, to private entities without oversight or compliance with the Constitution, as required of all government entities?
  2.      Can private parties enter into contractual arrangements using adhesion contracts and a constructive notice consent, which serves to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?

(Why Homeowners Associations (HOAs) should and must be made political subdivisions) (2012).

Failing to address these fundamental questions has permitted HOAs to exist as de facto governments functioning as a second form of political government within the US. HOAs reject the US Constitution by their actions — forget the words.  In 1964, with the publication of the Homes Association Handbook, Technical Bulletin #50, by the Urban Land Institute, and with the support and funding of private interests and federal agencies, the birth of the Second American Experiment went largely unnoticed.  

“The special interest promoters have described this second Experiment, boastfully, not as a revolution, but as “The Emergence and Acceptance of a Quiet Innovation in Housing”.  This second experiment was not a strengthening of democracy, but one that promoted and established, with the support and cooperation of the state legislatures, private, contractual, authoritarian government regimes.”

Homeowners Associations: the Second American Experiment (2008).

 

HOA willful blindness

An interesting aspect of the law came to my attention unexpectedly arising from the Trump lawsuits: willful blindness. This post takes a broader view of the HOA-Land legalities.

“Willful blindness, also known as conscious avoidance, is a judicially-made doctrine that expands the definition of knowledge to include closing one’s eyes to the high probability a fact exists.” ( The Supreme Court’s Willful Blindness Doctrine Opens the Door to More Wrongful Criminal Convictions | The Heritage Foundation).

The mens rea fundamental principle to uphold a wrongful act  required actual knowledge of  the wrongdoing by the accused, and can be found quite commonly in the statutes. So, evidence of actual knowledge had to be proven. This principle, although it had good intentions, failed to address the question of the accused lying, “I didn’t know I violated the law.  Honestly!”

But what if the evidence clearly shows that it had to be obvious to any reasonable person that the law was being broken?  What then? In the name of justice, the courts accepted the willful blindness doctrine. “C’mon, everybody knows that the act was a violation of the law” and cannot be denied by claiming dumb ignorance.

“the prosecution must show that the defendant was aware of a high probability of the fact in question but deliberately avoided confirming it. The prosecution must prove that the defendant was subjectively aware of the risk involved and that he or she consciously avoided learning about it.” (Willful Blindness Law and Legal Definition | USLegal, Inc.).

HOA willful blindness affirmative defense

I am sure most readers are aware of alleged lies made by the HOA, its managers, and directors, including its lawyers that come as a surprise to the average owner. “They’re lying, they’re lying,” the homeowner shouts to no avail. What to do? Take charge now that you are informed about the law, and even educate your attorney likewise, to raise an affirmative defense.  You charge the HOA with willful blindness as its obvious it violated the law by knowingly turning a blind eye to its actions.  Example, not reading the obvious applicable governing documents or state laws on the issue at hand.

“An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts. The party raising the affirmative defense has the burden of proof on establishing that it applies.” (affirmative defense | Wex | US Law | LII / Legal Information Institute (cornell.edu)).

Please take note on how powerful this doctrine is in holding the board of directors and managers to the wire when acting outside the law. It will put stop to their outright falsehoods and lies, and hold then to knowing the law and governing documents. It will require their attorneys to make the law and governing documents clear to the board.

HOA Advocates must bring the people out of the cave into the light

My Plato’s cave analogy:

“The policy makers, the public and the homeowners must understand that they have been living in a “cave” created by the promotion and mass merchandising of the HOA legal scheme,[1] eagerly accepted in exchange for empty promises of maintaining property values.  As prisoners within the cave, HOA members can only see the shadows of reality cast by the false light of the special interest propaganda.  Those who have escaped the cave and who have gone into “the light” of reality become enlightened.”[2] 

 It’s appropriate to restate a few of my views from my 2021 Commentary, “HOA Reformers needed to educate.”

“HOA Reformers are needed as educators to spread the facts about HOA-Land to the public in general; especially to the legislators, the media, the HOA boards, and to the universities and high schools. . . . The Plan[3] first requires addressing the attitudes and views of BODs, the members, and the public in general.  The conditioning and indoctrination by the biased views of the national pro-HOA special interest entity must be de-conditioned by a program of reorientation.”  

This past Monday I contacted The Federalist Society[4] seeking its assistance to spread the word by opening up debates and discourse through its member attorneys, and  law schools and their student chapters across the country.  It also publishes a law journal that is distributed to all members, The Harvard Journal of Law and Public Policy. I asked,

“Whereas,  I humbly ask The Federalist Society to abide by its mission and purpose and enact programs to address this representative sample of first impression questions, and arrive at the truth of the matter. As of today, to paraphrase Don Quixote’s reply (in Man of La Mancha) when presented with the Inquisition’s facts, ‘CAI facts are the enemy of truth.‘”

Today I was contacted by the Bill of Rights Institute[5]whose “mission is to equip students and teachers to live the ideals of a free and just society, and we have been engaged in this important work since 1999.”  BRI extends the re-educational process to secondary school students and teachers. It, too, is silent on HOA injustices. You can help them see the light.

Once again, in a show of unity, I ask for support in pursuing this invaluable vehicle for getting our  message out.  It must be understood that these groups are interested in substantive constitutional issues that apply across the states, which may require federal regulation to replace the private CAI control of the industry. 

Only our proactive involvement will stop the See no evil, hear no evil, speak no evil about HOA-Land.

Figure 1 See no evil, hear no evil, speak no evil about HOA-Land

NOTES

[1] See TB#50: The Mass Merchandising of HOAs by ULI and Mass Selling of HOAs Required Authoritarian Governance.  

[2] Excerpt from HOA Common Sense, No. 2: The new Enlightenment Age. See Plato’s allegory of the cave in Book VII, The Republic.  For a summary and a simplification of the allegory, see the YouTube video at http://youtu.be/sAu-CNSh9F0.

[3] See A Plan Toward Restructuring the HOA Model of Governance.

[4] The Federalist Society.

[5] BRI is a non-profit organization that designs and delivers unbiased, fact-based civics and history curricula, classroom-ready resources, and educational programs for teachers and students across America. See Bill of Rights Institute.

What makes for a good HOA member attorney??

First, what indeed does a lawyer  do?   There are family, corporate, injury, property, constitutional, etc. lawyers with  specialty in that  particular area. Of course, we see lawyers  saying they can represent you in many areas.  Ahem! Second, there is the level of expertise and competence in their chosen field. 

Now a homeowner needs to find a litigation attorney with expertise in the courts and lawsuits. You need a litigation attorney when dealing with a  rogue board that ignores the law and governing documents. (Please don’t be afraid to call it like it is).  Sitting down in a delusional kumbaya scenario is laughable to a rogue board (not aloud of course).  But going to court introduces another important element that has a direct bearing on the judge’s decision:  the specifics of the relevant HOA, contract, and property laws and precedent — decisions in prior related cases. And don’t forget the governing documents.

And guess who has the most credibility, as they frequently remind everyone, but good ol’ CAI.  And the local CAI attorney has the benefit of CAI Central’s collection, distribution, and advice on HOA related cases across the country.  So, which way will the judge lean when no one offers opposing arguments?  Towards the experts in HOA-Land law or towards the stumbling local run of the mill attorney?  Don’t miss understand me, I’ve witnessed some damn good, highly paid attorneys fall by the wayside.

Therefore, what must be done to achieve a balance and justice for you, the homeowner under the gun? Obviously, the attorneys must be educated, and those already educated and knowledgeable must speak out.  Where does it begin??  In the law schools across the country that have played their part by errors of omission  in failing to educate budding lawyers going forth in ignorance of HOA injustices.