HOA Constitutional Government

Given the current dismal state of affairs with our economy, and the increasing rate of HOA/condo foreclosures, I have been doing a lot of serious pondering (ahem!) on this major threat to the survival of HOA-land.   I think I hit upon the only real solution to the HOA foreclosure problem, taking a cue from the federal government bailout of the mortgage industry, banks, and GM.  I am not proposing another government bailout.  Oh no!

 Instead, I’m proposing a private corporation bailout.  You know, like the Bank of America bailout of Merrill Lynch, etc.   But, the major obstacle to this plan was, WHO?  I thought and thought of candidates.  In these dire circumstances it had to be a “true believer”,  a corporation that had faith in HOA-land, and one that would fight tooth and nail to preserve HOA-land from collapse.  Only one stood out, loudly and clearly:   Community Associations Institute (CAI).  But, would they?

 I pondered a little more, just a little more, and the answer was an obvious, thunderous, “Yes they would!”   Isn’t CAI promoting the adoption of UCIOA, that national top-down imposition of separate laws for HOA-landers? Doesn’t it already have  cadres lobbying to protect HOAs against constitutional encroachments in every state? I recently explained how this national organization, once an educational organization, reformed themselves into a business trade organization in order to be able to lobby state legislatures in order to protect HOA-land.

 In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors, on local community governance through the adoption of uniform planned community acts that perpetuate the current anti-American HOA governments. In effect, the super, privatized agency to replace the US Constitutional system of government. (Part II, The Foundations of HOAs).

 It is not far-fetched that CAI, with all its political influence, would jump at the chance to bailout HOAs.  And, in exchange for its financial assistance, there is the standard, business quid pro quo:  control of the industry by controlling the individual HOA boards of directors.  Yes, unlike banks, CAI does have people in place to manage and oversee CAI’s interests, like any other takeover corporation.  The $$$$?  That’s easy to come by.  All CAI has to do is to strengthen its binding agreements with the lenders and FHA, Fannie May and Freddie Mac. No problem here!  Isn’t this the modus operandi currently behind PUD statements and the 20 – 30 year restrictions on terminating an HOA?  As investors would say, It’s a done deal!

 I think this is a win-win solution.  Everyone would be happy.  As for lack of constitutional protections and secessionist philosophy, c’mon, get with it!  Nobody cares about that, especially the politicians.  Trust me.  It would be a done deal.

Would someone please let CAI know — quickly.

This Goldwater Institute Policy Brief on the lack of knowledge of basics civics by Arizona students illustrates one of the factors that have permitted the establishment of the New America of HOA-lands. (Learn more about the New America here).

 I’ve repeatedly made reference to the “conspiracy of silence” and the “unspoken alliance” that are responsible for the lack of information on the downside of living in homeowners associations, and on the exchange of civil rights and freedoms for property values. These students will be living, for the increasingly most part, in a private government regime with no constitutional protections. “What you don’t know can’t hurt you” seems to be the approach of pro-HOA supporters that include, aside from the national lobbying organization, CAI, legislators, judges, attorneys, and elected officials who seem to be unaware of this basic understanding of American government.

 Learn more about the second form of local government that exists across the country, the corporate, authoritarian regime that denies the Bill of Rights under the suspect constructive notice “contracts”, which have been upheld by the courts as a legitimate surrender of one’s civil liberties. Visit: American governments: HOAs under servitudes & Public government under the Constitution. And, shorter and more to the point about the role and function of public government, visit: Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs.

In order to clarify just what a government is, I added the following material to Part III, “American Political Governments”, of The Foundations of HOAs. The complete Part III booklet can be found at Governments

Government is defined by a “social contract”, and CC&Rs define the new social contract (p.31 – 33)

The current view of the controversy that HOAs are governments make use of these similarities of purpose and functions between other legal entities and HOAs to argue that the homeowners association is not a government. However, since the “evidence” presented clearly demonstrates that governments and HOAs share these attributes, this comparison also serves the argument that a government is a business. This comparison argument, promoted by the pro-HOA special interests, places credence on the much quoted, yet archaic and misplaced 1946 Supreme Court holding (Marsh v. Alabama), “public functions” test that compared functions, services, and public access territories (the issue in this case was not about whether or not HOAs are governments, but on the application of free speech to company towns). It fails in face of the stark reality that state laws do not impose any such requirements on the incorporation of a town or village.

Given the prevalence of this misguided public functions test, I’ve repeatedly made use of a basic definition of government: a government is: “the person or group that controls and regulates the people within a territory.” While the functions and provided services of a government are shared with many other entities, both businesses per se and nonprofit organizations, this definition “separates the chaff from the wheat.” What has been absent from any debate on this controversial topic has been the subject of purpose: what is the purpose of the organization? Businesses per se, have a profit motive. Nonprofit entities have a multitude of purposes ranging from a purely educational focus to providing a united support group for a particular trade or industry or to providing some form of charitable assistance to the public.

The question to be addressed, and that has not been addressed, is: What is the purpose of government that distinguishes it from all these other organizational forms? If none can be found, then what is the point of a government? Can we really say that American government is a business like any other business? But, before we proceed any further, an examination of the loosely used term “government” or more precisely, “public government” is in order. After all, all organizations, if viable, have some form of government or governing body. Keeping it simple, a number of related definitions from Black’s Law Dictionary will clarify my definition of a government.

Under “government”, Black’s simple definition says: “The structure of principles and rules determining how a state or organization is regulated.” And, to clarify by what is meant by a “state”, Black’s speaks in the same terms of the differences in function that distinguishes an association from that of the state, and of the need to determine the “essential and characteristic” activities and purposes of a state. A state is a community of people established for “securing certain objectives . . . a system of order to carry out its objectives.” Nothing new here, but Black’s then goes on to say: “Modern states are territorial; their governments exercise control over persons and things within their frontiers.” And cautions not to confuse the “state” with other communities of people in other forms of organizations designed to accomplish other objectives.

With this understanding, we can now move forward to examine the distinguishing essentials and characteristics of public, or state government. And the answer to the question raised above can be uncovered in the political and democratic philosophies and fundamental principles written centuries ago, in the writings of Rousseau, Voltaire, Locke, Montesquieu, Thomas Jefferson, James Madison and the other Founding Fathers. In short, and stated simply, they are the surrender of the rights and freedoms possessed by man living in “the state of nature” (which is a long forgotten condition and environment, yet, unrecognized, is still a condition actively desired in today’s society), under a “social contract” that establishes the quid pro quo for this surrender.

Read more . . . American governments: HOAs under servitudes & Public government under the Constitution