HOAs: ‘command and control regimes’ under questionable consent

Excerpts from VII. Conclusion.

That particular paradox has been the source of considerable confusion and misunderstanding. For too long, conventional wisdom has been that CICs are nothing more or less than the product of market forces, and that the elaborate CIC servitude regime is nothing more or less than a market response to consumer demand. This received wisdom ignores the realities of several distinctly non-market phenomena, including the pervasive privatization policies of local governments and the self-interested motives of CIC developers, that are at variance with the best interests of CIC homeowners. It also fails to respond meaningfully to gaps in resident consent to the CIC servitude regime in the first place. Those market distortions have played a critical role in sustaining less than desirable rule-bound CIC templates. One consequence is that the status quo CIC paradigm cannot be justified as the inevitable product of market forces or consumer choice. In fact, we have argued the contrary to be true.

. . . .

In particular, we propose a new legal foundation for CICs composed of the following elements: (1) a new set of governance choices based on a sunsetting of the developer-imposed servitude regime after the developer relinquishes control of the CIC; (2) a series of clear statutory rights for residents; (3) a fair, equitable and affordable alternative dispute resolution regime; (4) an ombudsman with a mandate to resolve homeowner issues before such issues metastasize into full-blown wars; and (5) the imposition of systems of transparent management and accountability.

. . . .

Ultimately, CICs must be afforded the opportunity to shed their command-and-control rule regimes in favor of templates aimed at reinforcing norms of basic neighborliness. This way, similarly situated residents, all of whom share the goals of minimizing their own transaction costs while preserving and protecting their property values, are given the chance to live the essential wisdom of “self-interest rightly understood.”

Paula A. Franzese and Steven Siegel, Trust and Community: The Common Interest Community as Metaphor and Paradox,  Vol 72, Missouri L. Rev.,  1111,  2007. 

Steven Siegel

1.  Co-author of AARP amicus brief to NJ Supreme Court in the 2007 Twin Rivers HOA free speech appeal.
2.  The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years after Marsh v. Alabama, Wm & Mary Bill of Rights J., Spring 1998.

HOA Legislation to solve the ills of society

Substantive issues surfaced during a legislative hearing in Arizona on HB2724.  Pro-homeowner attorneys spoke of ex post facto CC&R amendments, contract law, Restatement of Law trumps business judgment rule, courts supporting HOAs because the laws favor HOAs, etc. 
Click to view this 22 minute WMV video excerpt by StarPub. Required viewing for all concerned persons.
References:

Understanding life in an HOA: you are treated just like any other employee

Unfortunately, living in an HOA is like being an employee in a business.  You may not like the way it’s run, or find the managers, bosses, or fellow employees pretty bad at doing their jobs.  You may not like the way they do things, the jobs given or not given you, or how a committee that you are on is performing. What are your recourses there? Well, you got the same in the HOA corporation, owner or not. 

Your HOA board director is not at all like an elected public representative, nor is he bound by the same laws and understandings as are public officials. Rather, he is a director of a corporation with responsibilities to the corporation, and not to individual owners.  Keep that in mind!  The courts and legislators somehow assume that the directors are your elected representatives, and that they have your consent in every decision they make.  This is an assumption that legislators, as elected representatives, well know is NOT true

BIG EXCEPTIONS: 

1. Under an adhesion “contract” and state laws granting financial penalties and loss of your home, you must make those compulsory payments and cannot leave the mandatory association unless you move.  Your home is, in reality, collateral for life for the inept performance of your HOA board so the HOA can survive.

2. While there are employee and labor laws to protect employees, there are no  laws to protect you and your rights as a mandatory member of an HOA under compulsory assessments.

As a homeowner friendly attorney stated before an Arizona legislative committee, “HOAs are the largest unregulated business in the Unitized States”.

GET INVOLVED AT YOUR LEGISLATURE!   YOUR LEGISLATORS WILL DO NOTHING UNLESS DEMANDED BY NUMEROUS COMPLAINTS, WITH DETAILS, ABOUT HOA ABUSE OR VIOLATIONS OF STATE LAWS  OR THE GOVERNING DOCUMENTS.


Digg!

Contracts, the Constitution and consent to be governed

How does a person exhibit his consent to be governed?  Constitutional scholar Randy Barnett explains this theory of consent,

One consents to obey the laws of the land because one has chosen to live here. Just as you are bound to obey your employer (within limits) . . . you are bound to obey the commands of the lawmaking system in place where you have chosen to live. . . . So long as you chose to remain, you have “tacitly” consented to obey the laws.” Call it the “love it or leave it” version of consent.[i]

While explicitly saying, “I consent” is unambiguous, Barnett argues that,

Simply remaining in this country, however, is highly ambiguous. It might mean that you consent to be bound by the laws . . . or it might mean that you have a good job and could not find a better one [elsewhere] . . . or that you do not want to leave your loved ones behind. It is simply unwarranted that to conclude from the mere act of remaining . . . that one has consented to all and any of the laws thereof.[ii]

Read the complete commentary at Consent.

[i] Restoring the Lost Constitution: The Presumption of Liberty, Randy E. Barnett, p. 17, Princeton University Press, 2004.

[ii] Id, p. 19.


Digg!

FL HOA committee no-nonsense hearings

I just returned from making a statement before the FL committee chaired by Rep. Robaina. A 10 minute video excerpt will show all legislators in all states that a truly investigative committee is sorely needed in every state.  This committee, with subpoena power, issued only after informal invitations were made to HOA attorneys and directs were NOT answered, got to understand just what is going on in these associations. No more propaganda from the special interests on what a great thing HOAs are to the country and to the state. 
Reformers first and foremost need an aggressive, no nonsense legislator bent on getting to the truth rather than expressing the special interest propaganda.  Rep. Robaina is such a legislator. BUT, in order for this to occur we need the same type of aggressive, activist oriented homeowners to educate and inform the legislators about the unspoken side of things, and to back this information with supporting documents.
You can view this video “trailer” at  StarPub by clicking on the camera icon next to FL Select, under PVTGOV News Video.
“If you are to succeed, you must accept the world as it as and rise above it.“
The “system” is opposed to HOA reforms and all advocates and activists must rally around the tactics contained in my Rules of Engagement, which calls for the same tough attitude as exhibited by Rep. Robaina.