HOA Constitutional Government

Once again we see an industry study showing that homeowners “love us”, either the board or the community managers.  I’m waiting for one that also praises those HOA attorneys next.  This time the Arizona Association of Community Managers reports an “independent” study praising community management performance.  Sadly, instead of meaningful research, its “study” report has the taste and smell of just another promotional and marketing brochure.

The reader of the press release is told he can obtain the details of the study from AACM’s web site, but the details are not there.  Instead of an appendix of the questions asked and response breakdown, we get AACM’s conclusions.  For example, the study reports that 93% of purchasers were aware that an HOA existed, and that 90% “were familiar” with the CC&RS.   That’s fine, but what does “familiar with” mean?  Do homeowners understand and agree with the provisions that permit the surrender and loss of their rights?  Or, do they compromise under the practicality that, “I have to agree otherwise I can’t move here, and I can’t move anywhere else and find a comparable home.” 

This is not freely consented.  And if they have not read or had the meaning of, the consequences of, or the impact on their private property and fundamental rights fully explained to them in order that they understood the general impact of the CC&Rs, then there is no full consent. These questions, “getting to the root of things”, were not asked.

Only 15% of the homeowners filed a complaint”, they state, and then add that, “Overall, more homeowners were satisfied than dissatisfied with the resolution of their complaint against another homeowner” (emphasis added). AACM goes on to present “facts” on manager communications with homeowners. Real, substantial question aimed at getting to the heart of the matter were not asked.  Like, “How satisfied were you with your communication with the managers?”  Or, how many complaints were filed against the board?  Against the manager?  How satisfied were homeowners with the resolution of complaints?

Or, how about those questions designed to elicit sympathy for those “poor volunteers”?  Homeowners believe their board tries to do their best for the community (emphasis added), reports AACM, yet avoid any discussion of the effectiveness or adequacy of their attempts to do just what is “best” for the community.  “Best” is not defined.  Is it similar to insuring domestic tranquility, promoting the general welfare, establishing justice? Or is it simply enforcing the CC&Rs to maintain property values?

The general impression of this “study” is, as I said at the start, just another promotional piece released at the time legislation has been introduced to regulate managers under the real estate department.  Until these hard questions raised above, and those similar or based on my “10 Myths About HOAs”  (http://pvtgov.org/pvtgov/10_myths.htm), are addressed simple fixes will continue to be inadequate, and homeowners will continue to be back before the their legislatures next year, and the next, and the next.

The AACM study:  http://www.aacmonline.org/doc/AdobeViewer.asp?doc_filename=/hoa/assn10622/documents/aacm%20impact%20study%20executive%20summary.pdf&sfind=&print=0&docid=166975

   

Once again we see an industry study showing that homeowners “love us”, either the board or the community managers.  I’m waiting for one that also praises those HOA attorneys next.  This time the Arizona Association of Community Managers reports an “independent” study praising community management performance.  Sadly, instead of meaningful research, its “study” report has the taste and smell of just another promotional and marketing brochure.

The reader of the press release is told he can obtain the details of the study from AACM’s web site, but the details are not there.  Instead of an appendix of the questions asked and response breakdown, we get AACM’s conclusions.  For example, the study reports that 93% of purchasers were aware that an HOA existed, and that 90% “were familiar” with the CC&RS.   That’s fine, but what does “familiar with” mean?  Do homeowners understand and agree with the provisions that permit the surrender and loss of their rights?  Or, do they compromise under the practicality that, “I have to agree otherwise I can’t move here, and I can’t move anywhere else and find a comparable home.” 

This is not freely consented.  And if they have not read or had the meaning of, the consequences of, or the impact on their private property and fundamental rights fully explained to them in order that they understood the general impact of the CC&Rs, then there is no full consent. These questions, “getting to the root of things”, were not asked.

Only 15% of the homeowners filed a complaint”, they state, and then add that, “Overall, more homeowners were satisfied than dissatisfied with the resolution of their complaint against another homeowner” (emphasis added). AACM goes on to present “facts” on manager communications with homeowners. Real, substantial question aimed at getting to the heart of the matter were not asked.  Like, “How satisfied were you with your communication with the managers?”  Or, how many complaints were filed against the board?  Against the manager?  How satisfied were homeowners with the resolution of complaints?

Or, how about those questions designed to elicit sympathy for those “poor volunteers”?  Homeowners believe their board tries to do their best for the community (emphasis added), reports AACM, yet avoid any discussion of the effectiveness or adequacy of their attempts to do just what is “best” for the community.  “Best” is not defined.  Is it similar to insuring domestic tranquility, promoting the general welfare, establishing justice? Or is it simply enforcing the CC&Rs to maintain property values?

The general impression of this “study” is, as I said at the start, just another promotional piece released at the time legislation has been introduced to regulate managers under the real estate department.  Until these hard questions raised above, and those similar or based on my “10 Myths About HOAs”  (http://pvtgov.org/pvtgov/10_myths.htm), are addressed simple fixes will continue to be inadequate, and homeowners will continue to be back before the their legislatures next year, and the next, and the next.

The AACM study:  http://www.aacmonline.org/doc/AdobeViewer.asp?doc_filename=/hoa/assn10622/documents/aacm%20impact%20study%20executive%20summary.pdf&sfind=&print=0&docid=166975

   

Rebuttal of CEO President Tom Skiba’s Ungated, “Build vs. Destroy”, blog entry. The tone of Mr. Skib’as lament is shown by the following excerpt:

On the one hand we have literally millions of homeowners who are working to make their communities better places to live, serving on their boards, volunteering to staff events and activities, and building community each and every day. 

On the other hand, we have the folks bent on making a lot of noise and tearing down the work of others, the individuals who believe that there is no good community association, that all boards are corrupt, and that if you are happy in your community you are at best a dupe and at worst an unindicted co-conspirator in the great community association conspiracy, a conspiracy that exists only in their minds. 

Read the full blog and rebuttal at Destroy.

 Scientists have long held that there I no proof that God exists.  The acceptance of this statement by many has had profound affects on our ethical, moral and legal conduct.  His Holiness The Dalai Lama wrote(1), 

 

Now, many people, believing that science has ‘disproven’ religion, make the further assumption that because there appears to be no final evidence for any spiritual authority, morality itself must be a matter of individual preference
And whereas in the past, scientists and philosophers felt a pressing need to find solid foundations on which to establish immutable laws and absolute truths, nowadays this kind of search is held to be futile.

 

With this view as their real basis, the 9 Supremes in black have further pursued the separation of church and state to the point that God is an unmentionable within government. However, this position is contrary to the strong beliefs of our Founding Fathers who had deep religious convictions and beliefs with respect to God and the importance of religious values.  The foundation of our Declaration of Independence is based on the higher authority of a God: 

 

When in the course of human events it becomes necessary . . . to assume . . . the separate and equal station that Nature and Nature’s God entitle them . . . We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness – That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

 

With the banishment of God from government, the Supremes have struck a mortal blow to the very foundations of American political philosophy, beliefs and values. These rights that were held by the Founding Fathers, and other political philosophers at that time, superior to any rights granted by any government, and expressed in the US Constitution and Bill of Rights, have been declared null and void by the Supremes.  With no substitute standard being announced by the Supremes to guide the people, they are left to flounder. And we have floundered.   

In place of these higher standards and ideals, we have the decisions of 9 people in black that are subject to the ebb and flow of the times.  These Supremes have decided just which enumerated rights will and which will not be protected, have added additional rights not enumerated, and outright denied the validity and intent of the Ninth Amendment(3): The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 

A poor substitute for a higher authority that has surfaced in recent years is the lame “politically correct” standard.  It’s not even a morally or ethically correct standard, but a politically correct standard that spews forth from who knows where and why.  But, obviously, it’s a political standard designed to advance the positions of those currently in power. 

We are no longer a nation of laws, but a nation of men. We have no moral, ethical or legal compass.  Anything the Supremes decides goes. The people have been rendered powerless when the burden of proving unconstitutionality falls to them, and not to the learned scholars; and when legal scholars for the real estate business interests declare the laws of equitable servitudes superior to the Constitution(2).  

In regard to planned communities, we witness this deviation from the Constitution quite clearly when legislatures encourage, support and protect private local governments that, unlike our municipal entities, operate outside Constitutional protections and deny their members the rights and freedoms enjoyed by others outside the planned community. Within the homeowners association authoritarian, pseudo-democratic governments, the people do not come first. 

We are living in a New America where the America of our Founding Fathers is rapidly becoming a myth.   

NOTE:  The new $1 Presendential Coin series does not show “In God We Trust” on either the front or back.  It is inscribed on the edge of the coin and cannot be read by the naked eye.

 

 

 

In Florida, the protection of HOAs is reflected in an email by a legislative committee staff director, who wrote,

From an economic and policy standpoint, if associations were to lose the right to foreclose upon their assessments it is believed that many associations would suffer great economic harm and perhaps would be forced to cease operations. Were that to happen, honest owners who had paid their assessment could be harmed when their common areas (roof, building supports, roads, and landscaping) would fall into disrepair.

Most legislative reforms have only resulted in more and more legislative micro-management of associations in an attempt to achieve justice and fair play.  And the more the legislature imposes conditions on the day-to-day operations of the associations; the more and more likely will the courts view these associations as state actors and hold them to the laws of Florida.   

The desire to obtain justice and fairness can only be attained by substantive reforms to the state laws and covenants that have created oppressive regimes, operating under their own “constitutions” – bring them back under the constitution and laws of the land.  For better or worse. Some 44 years of attempting to write a form of governance better than the US Constitution has been a fruitless endeavor and a miserable failure.

As an example of the need for reforms to the legal basis of HOAs is the need to foreclose on “deadbeats”, as people behind in their assessments have been repeatedly stereotyped. The staff director also wrote, “Condominium and homeowner association liens are valid consensual liens on real property, and are subject to foreclosure if not paid.”   

First, the foreclosure is a statutory lien, one imposed by Florida law.  (FS 718.116 “(5)(a)  The association has a lien on each condominium parcel to secure the payment of assessments”). In my layman’s view, the holding that these liens are consensual comes from a statutory redefinition of what a mortgage is, and a statutory provision that the assessment can be foreclosed as a mortgage, so therefore, the HOA can foreclose on the home. (See my Tips for reforms in my materials).

Now, it’s not hard to accept that the state has an interest in keeping associations from failing, but is very hard to accept the state will do so by denying homeowners their fundamental civil rights and liberties, and allow the HOA boards a free-hand without accountability to the state.  And in order to accomplish this, a new set of laws for the governance of a community had to be established by the state just for this category of homeowners.  These condo and HOA statutes created separate and unequal laws within the state.

Why do condos and HOAs need the draconian right to foreclose?  Aren’t there existing, sound AICPA methods for the sound management of these nonprofits?  How do cities and towns manage to survive difficult times?  Surely, they do not foreclose themselves out of existence.  Or is it simply an arbitrary and convenient method to intimidate homeowners into paying without arguing the legitimacy of the right to foreclose?