HOA Constitutional Government

The America based on the protection of individual rights and freedoms is being replaced, as exemplified by SB 1489 (see Virginia’s HOA bill, SB1489: stands the constitution on its head), by a belief in a New America of independent HOA principalities, which admits to no protections or defense of our cherished rights and freedoms.  The principles, values and beliefs of The Founding Fathers that served as the fundamental ideal of American democracy no longer seem to have relevance, relegating American democracy to that of a myth.

To propose a bill that subverts the voice of the members within a property owners association, or HOA, a voice that is granted under the contractual agreement called the declaration, is shameful.  It violates the Bill of Rights in the Constitution of Virginia, which, in part, holds,

A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the basis and foundation of government.

Section 1. Equality and rights of men.

That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity.

Section 11. Due process of law; obligation of contracts; taking of private property; prohibited discrimination; jury trial in civil cases.

That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts . . . .

It is a very disturbing realization that these principles and values do not even get lip-service in today’s political environment.  And to think that the Virginia Constitution had served, in part, as a model for the US Constitution.

It is very disturbing to find that the impetus for SB1489, a resurrection of a defeated SB 6016, was introduced as a result of an attorney who is a member of the national lobbyist for HOAs, Community Associations Institute (CAI).  This attorney is an intervener (a third party with an interest in the outcome) in a case before the Virginia court.  As the plaintiff’s attorney stated, and which is obvious to any informed reader, the bill is an overly broad response that opens the door to other potential actions by an HOA board.  The bill would destroy any vestige of democratic functioning in the HOA, and deny the clearly stated provision in the contractual declaration that requires a vote of the members to amend the declaration. (See my Commentary link above for a more detailed analysis of this bill).

 

In fact, the CAI attorney made a poorly defined, overly broad assertion before the committee that included, “There is currently no method for reformation in the Commonwealth, and there needs to be a solution for issues where one property owner controls because he has enough votes.”   As I’ve discovered, the modus operandi by many HOA attorneys is the understanding by the attorney that 1) the average homeowner is not knowledgeable in the law, 2) does not have the temperament to undertake a prolonged legal battle, and 3) does not have the funds to do so.  Therefore, we see many of these loosely worded, over-reaching statutes that favor the HOA since the attorneys well understand how to handle statutory challenges in view of the homeowner’s aversion to litigation.

 

Now just what is this astute attorney trying to say?  Is he saying that some devious person has seized control of the HOA to the detriment of the board, and that the state must help the board to restore order, the status quo?  How can one get legitimate control of the votes?  Well, that’s easy. The HOA board is by far the most common party to use proxies to support its position, and the legitimate use of proxies may be interpreted as “control the votes”. 

 

The other legitimate control of the votes usually comes from the developer who has not yet turned over the HOA to the membership, and is permitted under the declaration to have a favorable weighted voting mechanism in its favor.  So, what is this astute lawyer trying to say?

 

It can only be, as stated in my prior Commentary above, to impose the board’s will on a recalcitrant membership that opposes the board’s goals.  But, isn’t that their right under the declaration, a supposedly sacred agreement as CAI has shouted from the roof-top on many occasions?  Why the flip-flop?   

 

Furthermore, where is the overwhelming government interest to deny homeowner rights explicitly granted under a private agreement?  And, where is the necessity, not merely convenience, in order to accomplish this unstated government interest to warrant a violation of the US and Virginia constitutions?

 

This bill seeks government support by means of the courts and opens the door to state action in violation of 42 USC 1983, as it seeks to uphold an act that is clearly dictatorial and decidedly undemocratic.  All that the bill requires in order for a court to rule in the HOA’s favor is simply “a good faith attempt to amend”, period. 

 

This sponsor of this bill, for a second time, has bowed to the influence of the CAI special interests to stand the Constitution of Virginia on its head. 

The bill must not pass!

 

 

Virginia’s HOA bill, SB 1489, “reformation of declarations”, is another legalistic slight-of-hand that appears to have been accepted by its sponsor unquestioningly and without conducting any due diligence as to the real intent behind the bill. In the spirit of “transparency to the public”, Virginians should ask the sponsor which lobbyists or group brought this bill to her attention.

The serious fault of this bill lies in its addition of § 55-515.3, “reformation of declaration; judicial procedure”, that grants the HOA the right to petition the courts to force amendments to the declaration without member approval. The bill provides an plausible justification and appearance of propriety with its verbiage relating to “inconsistencies”, “errors”, or “mistakes”. Yet, the bill seeks court approval of “reform, in whole or in any part”. And most atrocious are subsection (B)(2), that permits an open-ended right to amend the declarations contrary to the contractual requirement of a vote of the membership (emphasis added),

(A) [W]here the association . . . has attempted to amend the declaration using provisions outlined therein to resolve (i) inconsistencies in the declaration that are the source of legal and other disputes pertaining to the legal rights and responsibilities of the association or individual lot owners

(B)(2) Correct mistakes or any other error in the declaration that may exist with respect to the declaration for any other purpose.

The bill just requires a “good faith attempts”, on at least 3 different occasions, without any specificity on the meaning of “attempt”, by the board to have the declaration amended. Does that mean that the bill was rejected on each of the 3 occasions? Or that no quorum existed because the members, in exercising their rights under the declaration, did not attend meetings or did not submit their ballots or proxies in regard to the content of the proposed amendments? But, isn’t even the failure to attend a meeting or to vote also reflect the will of the people, the members? What a travesty on the supposed democratic functions of HOAs! What a reversal of the HOA lobbyist groups headed by CAI and their arguments against contract interference.

Realizing that homeowner rights advocates may pierce the veil of plausible justification for the bill, we see a title implying that the bill is an HOA reform bill. The use of the term “reformation” is interesting. Webster defines the terms,

Reformation: a reforming or being reformed; the Reformation — the 16th century religious movement . . . that resulted in establishing the Protestant Church.

reform: 1) to make better by removing faults and defects; 2a) to make better by putting a stop to abuse or malpractices by introducing better procedures, etc.

What SB1489 really appears to be is not a bona fide homeowner/member initiated homeowner rights reformation, but another example of the hypocrisy surrounding authoritarian HOA private regimes: a top-down state imposition of laws designed to further deny homeowner rights and freedoms in order to make the defective legal scheme of HOAs workable.

CAI supports this imposition of uniform state HOA laws, UCIOA, and the inclusion of its provisions when the model is not being adopted per se. (See CAI Central’s Public Policy statement). CAI has argued against the extension of constitutional protections to members (see it amicus brief in the Twin Rivers free speech case before the NJ appeals court). Even CAI’s top man has argued that HOAs are businesses, but democratic (See Ungated Blog on CAI website).

This bill should not even be heard in committee. It should be withdrawn immediately!

Virginia’s HOA bill, SB 1489, “reformation of declarations”, is another legalistic slight-of-hand that appears to have been accepted by its sponsor unquestioningly and without conducting any due diligence as to the real intent behind the bill. In the spirit of “transparency to the public”, Virginians should ask the sponsor which lobbyists or group brought this bill to her attention.

The serious fault of this bill lies in its addition of § 55-515.3, “reformation of declaration; judicial procedure”, that grants the HOA the right to petition the courts to force amendments to the declaration without member approval. The bill provides an plausible justification and appearance of propriety with its verbiage relating to “inconsistencies”, “errors”, or “mistakes”. Yet, the bill seeks court approval of “reform, in whole or in any part”. And most atrocious are subsection (B)(2), that permits an open-ended right to amend the declarations contrary to the contractual requirement of a vote of the membership (emphasis added),

(A) [W]here the association . . . has attempted to amend the declaration using provisions outlined therein to resolve (i) inconsistencies in the declaration that are the source of legal and other disputes pertaining to the legal rights and responsibilities of the association or individual lot owners

(B)(2) Correct mistakes or any other error in the declaration that may exist with respect to the declaration for any other purpose.

The bill just requires a “good faith attempts”, on at least 3 different occasions, without any specificity on the meaning of “attempt”, by the board to have the declaration amended. Does that mean that the bill was rejected on each of the 3 occasions? Or that no quorum existed because the members, in exercising their rights under the declaration, did not attend meetings or did not submit their ballots or proxies in regard to the content of the proposed amendments? But, isn’t even the failure to attend a meeting or to vote also reflect the will of the people, the members? What a travesty on the supposed democratic functions of HOAs! What a reversal of the HOA lobbyist groups headed by CAI and their arguments against contract interference.

Realizing that homeowner rights advocates may pierce the veil of plausible justification for the bill, we see a title implying that the bill is an HOA reform bill. The use of the term “reformation” is interesting. Webster defines the terms,

Reformation: a reforming or being reformed; the Reformation — the 16th century religious movement . . . that resulted in establishing the Protestant Church.

reform: 1) to make better by removing faults and defects; 2a) to make better by putting a stop to abuse or malpractices by introducing better procedures, etc.

What SB1489 really appears to be is not a bona fide homeowner/member initiated homeowner rights reformation, but another example of the hypocrisy surrounding authoritarian HOA private regimes: a top-down state imposition of laws designed to further deny homeowner rights and freedoms in order to make the defective legal scheme of HOAs workable.

CAI supports this imposition of uniform state HOA laws, UCIOA, and the inclusion of its provisions when the model is not being adopted per se. (See CAI Central’s Public Policy statement). CAI has argued against the extension of constitutional protections to members (see it amicus brief in the Twin Rivers free speech case before the NJ appeals court). Even CAI’s top man has argued that HOAs are businesses, but democratic (See Ungated Blog on CAI website).

This bill should not even be heard in committee. It should be withdrawn immediately!

On Jan 21, Pres. Obama returned to the doctrine that government employees must adopt and abide by a belief in public service.

In the realm of authoritarian HOAs, there is no equivalent “member service” doctrine because there is no provision for such within the duties, obligations and responsibilities set forth between the parties in the binding agreement known as the CC&Rs. There is also no requirement to:

* be compassionate,
* be fair and just,
* provide due process protections for members,
* adopt the US Bill of Rights as part of the CC&Rs,
* provide for a truly democratic form of government with a separation of powers and checks and balances upon the Board, or
* provide for fair elections that include free political speech and equal access to resources to contact the membership, such as with community centers, newsletters, member mailing lists, etc.

 

President Obama must address the 20% of Americans living under authoritarian, undemocratic private HOA regimes, not subject to the Bill of Rights!

On Jan 21, Pres. Obama returned to the doctrine that government employees must adopt and abide by a belief in public service.

In the realm of authoritarian HOAs, there is no equivalent “member service” doctrine because there is no provision for such within the duties, obligations and responsibilities set forth between the parties in the binding agreement known as the CC&Rs. There is also no requirement to:

* be compassionate,
* be fair and just,
* provide due process protections for members,
* adopt the US Bill of Rights as part of the CC&Rs,
* provide for a truly democratic form of government with a separation of powers and checks and balances upon the Board, or
* provide for fair elections that include free political speech and equal access to resources to contact the membership, such as with community centers, newsletters, member mailing lists, etc.

 

President Obama must address the 20% of Americans living under authoritarian, undemocratic private HOA regimes, not subject to the Bill of Rights!