HOA Constitutional Government

I renamed this article by Gary Daddario, “The Pursuit of Happiness” (Common Ground, Sept/Oct 2009, CAI) to “The Pursuit of Happiness under Authoritarian HOA Regimes”, which more accurately reflects the state of affairs and conditions within homeowners associations.  The article must be read with this understanding in order for the reader to understand the unstated premises underlying Daddario’s pronouncements.

For example, “In community associations, the foundation for problem-solving is the association’s rules and regulations”  must be understood that the R & Rs are designed for  maintaining property values without concerns for the protection of individual property rights, which are presumed to have been granted carte blanche to the HOA board.  The CC&Rs “constitution” does not admit to individual liberties protected by state laws.   “The board and its attorney also should ensure the rules are fair and provide equal treatment to all residents of the community”  must also be a understood within the objective of maintaining property values.  There is no room for exceptions under a strict interpretation of these guidelines, and none is mentioned.  In contrast, state constitutions contain such protection of individual rights in their Declaration of Rights.

However, I am particularly disturbed by the advice for the adoption of HOA rule enforcement procedures without reference to civil/public government laws and legal procedures. “Once carefully drafted rules are in place, boards should develop their own process for enforcing them.”  Daddario, a CAI member attorney, then offers a procedure that places the HOA board in the same position of a county or district attorney who prosecutes violations of the law, or “crimes against the state”.  (A crime is a violation of law that affects the society as a whole and the state sues on behalf of all its citizens in their best interests.  Sounds familiar to those pronouncements of HOA enforcement for the benefit of all the members?)

The author advises that 1) “the HOA Observe the violation or receive the complaint. This represents the board’s introduction to the issue”, and 2) “Conduct a factual investigation of the alleged violation.”  But, isn’t this what the prosecutor and police do?  Isn’t the HOA acting as if it were a civil, but private, government?  Except, of course, as we all know, the HOA’s covenants (laws) and procedures fail to measure up to or conform those of public government. (For more detailed analysis of HOA government vs. public government, see Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs).

 The member is being shortchanged!  The astute, if I may, HOA attorneys well know that “after notice and an opportunity to be heard” falls short of the Supreme Court’s rulings on due process, which require an independent tribunal where the parties, including the accused member,  are allowed to present evidence and witnesses, and to question accusers and witnesses, if any.  This is absent from the article.  (For those not in the know, CAI attorney lobbyists in Arizona killed such a law that provided bona fide due process for HOA disputes by means of  Office of Administrative Hearings adjudication).

Advisory statement (1) above also raises the question of who can file a complaint with the board?  The landscaper?  A visitor? The management firm/manager?  Anybody?  Or must there be a “person with standing” as required in civil court?  What about a disgruntled neighbor who got it in for another member?  Or a board member who got it in for the accused?  We all know very little, if any, investigation occurs in the HOA enforcement process. Usually, a fine is the first notice of an alleged violation!   But, this doesn’t stop the HOA attorney from acting to enforce the board’s wishes, and paying little or no heed to the rules of civil procedure (generally 11(a) or (b)) that requires the attorney to attest “that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and warranted by existing law . . . ” 

These recommended procedures and HOA “laws” flaunt any semblance of a fair trial or due process concerns for the member, but do exhibit an elevated position of the HOA’s “laws” (CC&Rs, bylaws and R & Rs) over individual rights and liberties, as possessed by all those state residents not living in HOA-land.  And these protections are neglected in this article since CAI does not admit to, accept, or is willing to discuss any downside to living in HOA-land.

I am justified in renaming the article as I have, “The Pursuit of Happiness Under Authoritarian HOA Regimes.”  My guidelines for living in HOA-land are simple:  accept the HOA regime, conform to its pronouncements, and always honor the HOA board.

To paraphrase President Obama’s words, when considering all the factors establishing the HOA as an institution — the legal scheme and the mass merchanding  of HOAs — all of us should honestly answer the following question:

What is the “character of the community”?

For those arguing favorably for HOAs, please bear in mind that the developers, the HOAs, the national business trade group, the lobbyists, the legislators, and the state consumer protection agencies come with very unclean hands.  They have all played a role in establishing and favoring these private governments over individual property rights.

On September 9, 2009, I attempted to provide members of HOAtalk.com important information to better their understanding of the downside of HOAs. My post there was simply a summary and link to my commentary on a CAI lobbyist article, CAI lobbyist firm espouses HOA secessionist, un-American views. I was informed that this forum was “A positive place for community association leaders to share ideas and learn”, and was summarily banned and declared an “unperson” — my posts and member replies were removed.

Not the first time I was so attacked by homeowners(1). However, in my 10 years of severe criticism of CAI I was only directly addressed twice by CAI, publicly. And it was polite and non-controversial. So, once again, analogous to CAI shutting down its Message Board and Skiba’s blog to outsiders, and its disparaging picture of homeowner advocates in 2006(2) , we see Group Think at work. Group think is an inbreeding of customs, beliefs, values, attitudes, etc where anything different is suppressed and rejected out of hand.

Let’s see what Psychologists for Social Responsibility has to say about group think.” (3)(emphasis added).

Groupthink, a term coined by social psychologist Irving Janis (1972), occurs when a group makes faulty decisions because group pressures lead to a deterioration of “mental efficiency, reality testing, and moral judgment”. Groups affected by groupthink ignore alternatives and tend to take irrational actions that dehumanize other groups. A group is especially vulnerable to groupthink when its members are . . . insulated from outside opinions. . . .”

Janis has documented eight symptoms of groupthink, some of which include,
1. Collective rationalization – Members discount warnings and do not reconsider their assumptions.
2. Belief in inherent morality – Members believe in the rightness of their cause and therefore ignore the ethical or moral consequences of their decisions.
3. Stereotyped views of out-groups – Negative views of “enemy” make effective responses to conflict seem unnecessary.
4. Direct pressure on dissenters – Members are under pressure not to express arguments against any of the group’s views.
5. Self-censorship – Doubts and deviations from the perceived group consensus are not expressed.
6. Illusion of unanimity – The majority view and judgments are assumed to be unanimous.
7. Self-appointed ‘mindguards’ – Members protect the group and the leader from information that is problematic or contradictory to the group’s cohesiveness, view, and/or decisions.

The members of HOAtalk, (a more appropriate title would be, “HOAsweetTalk”) clearly exhibited these symptoms, and were not interested in dealing with reality, preferring to “see no evil, hear no evil, speak no evil”. To do so would destroy their illusions of goodness, of being a member of something important, and their rationalizations of not doing anything wrong, harmful or unethical. These HOA Loyalists probably participated in all those “satisfaction surveys”, and legislators have accepted these extremely biased and irrational views when deciding on HOA reform legislation.

Of course, we know who has fostered this group think. CAI continues to mislead the legislatures, the homeowners, HOA boards and the public about life in an HOA, having omitted from their books, pamphlets, brochures, classes and seminars any mention of the downside of HOA living. Or is it “the darkside?”

Notes:

[1] See HOA group think, http://pvtgov.org/pvtgov/downloads/cai-group-think.pdf.

[2] Id. (I declined to be interviewed for this article, insisting on an open debate on the issues with a Q & A period.  I got no response from CAI).

[3] What is Group Think?,  Psychologists for Social Responsibility, Sept 2009, (http://psysr.org/about/ pubs_resources/groupthink%20overview.htm)

The recent article(1) by the hired-hand, paid, Arizona lobbying organization for the CAI chapter, DeMenna & Associates, contains many of the points that I’ve been arguing relating to the attitudes and views of CAI and die-hard, homeowner association true believers: anti-democratic principles, anti-individual rights, secessionist philosophies, and a corporatism promoting the HOA state above everything else that recalls fascist principles.

The article also contains a strong, but disingenuous, attack on the support by legislators for reforms to the extent that the reader comes away with the feeling that strong efforts by DeMenna & Associates is absolutely necessary to ward off these harmful reforms that seek to destroy HOAs. Talk about self-promotion!

Here are some of the rhetoric and extremist statements made in the DeMenna article, emphasis and commentary added:

[13] bills is a reduction in the amount of harmful or anti-HOA [please read: against the fictitious corporation that is legally independent from its constituent members, whose interest will differ] bills being considered before the Legislature. [Substantive reform bills, some 3 bills over 10 years, attempt to restore lost individual rights and freedoms taken away by the CAI influenced HOA statutes.]

However, the CAI LAC continues to fight as hard as ever to defeat a number of bills currently moving through the process. . . . . One such bill . . . would cripple the ability of homeowner associations to enforce parking and street restrictions in communities with roadways dedicated to cities and counties. . . . The reality is that a small group of hobbyists [ham radio operators] would like to impose their will upon the majority of their neighbors, compliments of the Arizona State Legislature.

[These bills] are symptomatic of a common problem surrounding most HOA legislation introduced at the Capitol: the Legislature’s continued attempt to interfere with the rights of willing parties to contract. New laws continue to be enacted and imposed upon the majority of homeowners because of the desires of a small and vocal minority.

If CC&Rs were easier to amend, homeowners who desire to change onerous provisions (whether it be parking, HAM radio towers, or acceptable house colors), could attempt to do so at the local level, and the Legislature should not feel obligated to interfere with private contracts between willing [and fully informed?] parties.

Each community’s needs are different and unique . . . . Until this larger concept or true “Power to the People” legislation is actualized, it is likely that we will continue to fight anecdotal, short-sighted, one-size fits all homeowner association legislation at the State Capitol.
[“Anecdotal”? What about fears spread by CAI about HUD not providing loans to HOAs if foreclosure rights are done a way with? Or, that Justice of the Peace courts would be swamped with complaints by homeowners seeking justice and fair trials, even though for years it had argued that these HOA problems were due to just a handful of troublemakers?]

Often, a developer will design communities with narrow roads in exchange for agreements to enforce CC&R parking restrictions on community streets [???] . . . Planned community associations inherit use restrictions from developers who draft the CC&Rs. [I thought these CC&Rs were contractually negotiated by willing and informed buyers.]

I got news for this lobbyist firm. First, in our democratic system of government, minority rights are protected from abuse against more powerful factions. It is an essential requirement of the social contract whereby consent to be bound by public government is given. In other words, majority rule is not without sensible constraints in order for society to function as intended, otherwise lynch mobs and other acts of local anarchy would be the rule of the land.

Second, what is implied here is the public domain argument that living in an HOA is implied consent to be governed, which completely ignores the contractual provisions of the CC&Rs. It ignores other contract law 101 requirements, the most abusive of all is the mere constructive notice doctrine to bind buyers to the CC&Rs and to the surrender of their rights and freedoms. Talk about unconscionable covenants, adhesion contracts, and being contrary to public policy! Funny, while the Restatement of Servitudes sets these tests for valid covenants, it then ignores the reality of the CC&Rs contract.

Third, recognition is given to the imposition of a “constitution”, designed to protect the interests of the Declarant, a profit seeking business, first and foremost — and that includes those covenants to protect the lenders needed by the Declarant to develop the subdivision — with an marked absence of concerns for adherence, as required by all other forms of governance, to the Bill of Rights or Constitution itself. For those with some knowledge, a direct covenant that “the HOA will be subject to and bound by the Constitution as if it were a public entity charted not under corporation law, but municipality law” is a simple statement that will do nicely. Otherwise, as implied and quite emphatically demanded by this article, private parties can establish a New America of independent entities, principalities in effect, that rejects and secedes from our system of government.

As to my arguments that HOAs are fascist based(2) , this article reflects 1) the corporation interests (and their membership national lobbying organization, CAI) to promote and protect the HOA legal scheme by lawyers and management firms that derive their income from being vendors to HOAs, 2) the denial of the individual and his rights and freedoms, 3) the preeminence of the “state”, the HOA, to which all members are expected to conform and owe a duty and obligation to support, first and foremost, and 4) ) the rejection of our democratic system of government. Is this America? Or, is this a New America?

Homeowners and legislators are being confronted with a decision that has the utmost consequences for America: To continue to support the Constitution and its fundamental principles, beliefs and values; or to support secessionist, authoritarian and private HOA governments.

 

Notes:

[1] “2009 Arizona Legislative Session”, Ryan Anderson,  Community Resource (CAI-AZ Issue 3, 2009).

[2] See, Is CAI seeking HOA – municipality synergies?   HOA Local Government, Sept. 2, 2009 (https://pvtgov.wordpress.com/2009/09/02/is-cai-seeking-hoa-municipality-synergies/).

 In its August 31, 2009 email, CAI Arizona proudly announced (emphasis added)

 “The Central Arizona Chapter, in conjunction with The Leadership Centre, is hosting a Municipal Officials HOA Conference.”  

 This email goes on to say,

 Join us for a panel discussion with your local mayors and city officials focusing on how Arizona HOAs can work better with your city and what services cities offer HOAs, including dispute resolution and assisting in municipal infractions (i.e. street parking,barking dogs, trespassing) in HOAs.

 Represented cities will include: Chandler, Gilbert, Mesa, Paradise Valley & Scottsdale . . . Avondale, Buckeye, Glendale, Goodyear, Surprise-Sun City & Peoria.

What is CAI trying to accomplish?  It appears that CAI is seeking a public-private co-operation in support of the private, contractual, authoritarian HOA form of government by democratic public government!  It is astonishing that we see 11 municipalities taking part in this program to better provide “dispute resolution” and dealing with “municipal infractions.”   Talk about getting government off our backs!   Here CAI is seeking a synergy with autocratic forms of government within the democratic municipality.

An examination of the commonplace HOA “constitution” reveals a fixation on a corporate objective of maintaining property values and a complete absence of protections of members rights, as US citizens.  There is no HOA Bill of Rights, or no Declaration of Rights as found state constitutions.  And, given the widespread support and backing for the strict enforcement of the covenants by vested corporate interests, namely the members of the national business trade organization known as CAI, the lawyers and management firms, one is easily led to the conclusion that the HOA is closer to fascism than to a democratic form of government. 

Benito Mussolini, the Italian dictator who was the founder of fascism in 1922, wrote:

Against individualism, the Fascist conception is for the State; and it is for the individual in so far as he coincides with the State…. Liberalism denied the State in the interests of the particular individual; Fascism reaffirms the State as the true reality of the individual.   Benito Mussolini, Fascism:  Fundamental Ideas

This quote can be read as,

Against individual member rights, the homeowner association concept is for the HOA; and it is for the individual in so far as he conforms to the covenants, bylaws and rules and regulations of the HOA . . . the free expression of individual rights and freedoms rejected the HOA in the interest of the individual; the homeowner association concept reaffirms the HOA as the true objective of member obligations and duties.

Aren’t these municipalities aware of the anti-constitutional position of CAI?  That it opposes the application of the Constitution to HOA governance!  That CAI-AZ fought to deny homeowners bona fide dispute resolution, without any cost to the municipality, by the state’s Office of Administrative Hearings? 

And now CAI appears to seeking police powers for the HOA to enforce public ordinances, while having opposed legislation that public streets are to be controlled by public government ordinances and not the private HOA covenants! 

 Can a group, of private persons opt to write a new state constitution and laws without approval, or the acquiescence by the legislature delegating such powers to the HOA?  I think not! 

 What is motivating these municipalities??  Surely not adherence to the state constitution.

 I am reminded of , “Beware the Jabberwock, my son”