A historical look at the purpose and intent of the HOA promoters

 

This eEditorial presents a historical criticism of planned communities, dating from 1992 through 2000, by two political scientists, Evan McKenzie, Associate Professor of Political Science, University of Illinois at Chicago, and Robert Jay Dilger, formerly Professor of Political Science, University of West Virginia.  The last material comes from a book by Donald Stabile, which was funded by both CAI and ULI, the two prominent organizations that promoted and mass marketed the legal scheme for HOAs.  This commentary presents a homeowner advocates view of history that is not publicly known to state legislators or public officials.

 

 

 

 

 

Excerpt from Dilger (1992): 

 

[HOA promoters assume that HOAs] incorporate all the rights and privileges embodied in the U.S. Constitution, including all the rights of free speech . . . and the rights to due process and equal protection of under the law found in the Fourteenth Amendment.

 

 

 

Excerpt from McKenzie (1994):

 

[T]he balance of power between the individual and the private government is reversed in HOAs. . . . [T]he property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander.

Excerpt from Stabile (2000):

 

[HOAs are] a consumer product sold by profit-seeking firm, a legal device, a corporation reliant on both coercive powers and voluntary cooperation, a democracy, and a lifestyle.

 

With this plan, TB50 [The Holmes Association Handbook] set out the plan that would be taken in forming the CAI.

Read the complete eEditorial at History.



 

 

 

Who lives in an HOA? Public officials take notice

My initial look into the CAI sponsored homeowers association satisfaction survey conducted by Zogby revealed the following.  The comparisons are based on the 2007 survey sample and the US Census data of 2000.

 

 

1.                  The sponsor of the survey, not Zogby who conducted the survey, was a CAI division, Foundation for Community Association Research.  “The Foundation supports Community Associations Institute (CAI), a national organization dedicated to fostering vibrant, competent, harmonious community associations.”  CAI  PR VP Frank Rathbun is also a VP of the Foundation.

 

2.                  The selected sample of some 709 telephone calls, which came from, “Samples are randomly drawn from telephone CDs of national listed sample.”  I’m not sure what “national list sample” really means.  You can buy telephone directory CDs, but this national sample tag is questionable.  In any event, if one accepts the survey as valid, then

  a.      About 61% were 50+ reflecting increasing potential problems with retired people dealing with compulsory fees. (There are no “tax” breaks for medical or old age; inadequate reserves.)  US Census data for 2000 shows 27.3% of the total population are 50 and over.

b.      College and post-grad made up 68% of the survey.  (US Census shows 24.4% or, if “some college is included,  86% in HOAs vs 51.8% in US).

c.      Minority groups were only 11% of the sample.  The 2000 US Census shows a total 24.8% for Black/African American and Hispanic/Latino.

d.      Incomes of over $50,000 comprised 79% of the respondents.  US Census shows 41.9% with incomes over $50,000).

e.      A tabular look: 

Category

 HOA Survey US Census
Age 50+ 61% 21%
Education: college + / some college 68% / 86% 24.4% / 51.8%
Minority 11% 24.8%
Incomes over $50,000 79% 44.9%

 

 

While further analysis is being performed, the above seems to indicate a class structuring of Americans between the “Haves” living in HOAs, and the “Have-nots” living outside the HOA. Furthermore, if the “Have-nots” rent within an HOA, they are considered second-class citizens within the HOA.  Yet, HOAs were sold to government officials and the people under the banner of “affordable housing”.

 

Today, this class structuring is being conducted by more and more local municipalities with their mandatory HOAs for new developments.   Based on CAI estimates and US Census data, the percentage of people estimated to be living in an HOA in 2000 is 16.1%, which is higher than either the Black or Hispanic minority group percentages.

The CAI survey details can be found at Survey.

FL legislative HOA committee gets subpoena power

View news video at Subpoena. 

The January 14th Sun-Sentinel article reported that, 

“In his letter creating the committee, [State House Speaker Marco] Rubio said he wants it to examine ‘accounting, budgeting, audits, theft by officers and directors, elections and access to records.” He also wants the committee to consider “state regulation of condominiums and cooperatives by the Department of Business & Professional Regulation.'”  

“Rubio gave the committee subpoena power to force reluctant board members, accountants, lawyers and managers to testify and provide records that they have refused to give to unit owners who have the right to see them. All testimony and documents will be public.” 

The committee is the Select Committee on Condominium and Homeowner Association Governance.  Its scheduled meetings are January 26, and February 9, 16 and 23.  

Exposure is necessary and vitally important to understanding HOA private governance. In Arizona, for example, the videotapes of the Office of Administrative Hearings, that has the power to hear HOA disputes, exposed the attitudes, views and conduct of HOA boards, managers and attorneys for all to see.  Listeners heard how they responded when a homeowner disagrees with his board, or a director, or a manager, or who seeks legitimate inquiries into the operations of his HOA.

Let’s hope that the Florida legislature will indeed take a good, investigative look into the real world of HOAs and condos, not paying believing the dual personalities who have come before it saying one thing, and then doing just the opposite.

I’m concerned because in Arizona 8 years ago, the HOA Interim Committee was to look into complaints against HOAs, but quickly went into defensive posture with statements like, “We will be going slowly. We don’t want to upset those 95% of the associations that are good”.  And, after 3 sessions with over 100 homeowners in attendance each time, homeowners were told, “We don’t want to hear anymore horror stories.”  And astonished attendees said to themselves, “Isn’t that the purpose of these hearings?  The questioning of HOA boards and hired hands, the management firms and attorneys, never took place. 

Floridians must make sure that the same whitewash does not take place with this committee.  Homeowner reform stalwart Rep. Robaina was appointed as chairmen of the committee.  Write the media and your legislators!  Support Rep. Robaina.  Support this committee.  Support Florida based Cyber Citizens for Justice.  But, beware of the industry special interests groups, CALL and CAN, lawyers and management firms with $$$ to influence legislation against reforms. Stand up and shout,

 “I’m mad as hell, and I’m not going to take it anymore.” 

The Sun-Sentinel article can be viewed at:http://www.sun-sentinel.com/news/local/southflorida/sfl-flbcondo0115sbjan15,0,7138007.story?coll=sfla-news-florida

The New Law of the Land: contract as you wish

I wrote many times about the court and legislature’s hands-off CC&Rs policy, and adopted and promoted not only by the so-called public interest organizations when it comes to HOAs –  ACLU, Institute for Justice, CATO Institute, Goldwater Institute, etc.  Here’s the official position from the Restatement Third, Property (Servitudes), that legal source that courts use as the authority on common law:

§ 3.1, Validity of Servitudes, Comment a. (emphasis added)

This section applies the modern principle of freedom of contract to creation of servitudes. The Restatement of Contracts explains this principle: ‘In general, parties may contract as they wish, and courts will enforce their agreements without passing on their substance. . . . The principle of freedom of contract is rooted in the notion that it is in the public interest to recognize that individuals have broad powers to order their own affairs.’ The effect of this rule is to shift to the party claiming invalidity of a servitude the burden to establish that it is illegal, unconstitutional, or violates public policy.

The burden is placed on the homeowner to show, usually by the burden of evidence or proof, that the statute or covenant is invalid.  There are no restrictions in the above statement, or references to the use of legitimate police powers to regulate (as done many times in many other areas of law) making the task very, very difficult.  As examples, the courts have adopted the Restatement with respect to covenants that benefit the community as a whole (socialism, communal living) are valid irrespective of a homeowner’s individual rights under the Constitution, and ex post facto amendments are valid because the servitudes say there can be only one set of rules applied equally to all.

The Social Contract theory is dead. All contracts are just “pieces of paper”, subject to the laws of the man currently in power.
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Puppet Governments and the Illusion of Democracy: Voting Delegates

In its lobbying efforts, and other propaganda efforts to promote the acceptance and support of planned communities with homeowners associations, Community Associations Institute, CAI, has made use of models of representative democracy generally known as voting “delegate systems”.  Simply stated, HOA members vote for their “representative” or delegate in their “district”, which is some predefined neighborhood.  The delegate gets to vote in place of the homeowner-member on issues requiring a membership vote.

The problem is, these delegates have no real powers because the Declaration of CC&Rs determines who is responsible for the operation of the HOA form of governance, and that is the Board of Directors.  And we all know that the CC&RS are not modeled after the US Constitution, Declaration of Independence, or contain any Bill of Rights protections, or on the principles of the social contract, or on John Locke’s The Second Treatise of Government.  No, the 1964 marketing plan for planned developments, as we know them today, was the Urban Land Institute’s Homes Association Handbook, TB#50,[1] that was based on profit motives for the real estate interests. 

This illusion of democracy at work reminds one of the “people’s democracies” where the people vote for their representatives who possess very little real power, and are subject to a Central Committee, or to Commissars, who control the government.  The HOA form of governance is not the product of attempts to produce a more perfect government than our current form of democratic government, but is the adoption of the top-down corporate model of governance with the board of directors in control for all practical considerations.[2] 

 For more . . .