HOA Constitutional Government

Recently, a Colorado judge awarded an HOA some $10,000 in libel damages from a homeowner who was quite forward in her criticisms of her board. The Colorado Gazette reporter quotes the homeowner association president,

“She still has rights as an owner,” [he] said. “It’s a legitimate issue. We’ll consider it, as long as she’s civil and doesn’t call people names. We’re not in the punishment business.” [emphasis added].

Say again????

HOAs are in the punishment business 

1.  When it possesses foreclosure rights that usually exceed US Supreme Court opinion on excessive penalties in insurance damage claims (State Farm v. Campbell, 538 U.S. 408 (2003) ) —  the “it’s not fair for good people to pay for deadbeats” slogan used by proponemts of HOAs and supporting state legislators; 

2.  When it issues, not uncommon, $25-$100/day fines for trivial, alleged violations;

3.  When it denies proper due process ( the ‘standard’ CC&R and statute wording only mentions “an opportunity to be heard”), by failing to include with respect to this so-called hearing, “by an impartial tribunal where the homeowner can present and question witnesses” — the recognized standard for proper due process hearings;

4.  And when it operates with homestead exemption laws that exclude homeowners living in HOAs as a special class of citizen from general exemption laws that apply to all the residents of the state.

No, it is quite clear that HOAs seek to punish as a detriment to other homeowners who may insidiously plan, as it appears HOA board thinking goes, to avoid paying HOA debts.  Never mind any factors beyond the control of the homeowner, like death of the bread-winner, loss of employment, market downturns, personal family financial obligations,   such as unexpected doctor and hosital bills, etc.  HOAs seem to ignore the fact that our society operates with a more compassionate view of  “fairness” .

No, the homeowner must pay no matter what, for as long as he lives in the HOA, because his home is collateral for HOA expenses.

Recently, a Colorado judge awarded an HOA some $10,000 in libel damages from a homeowner who was quite forward in her criticisms of her board. The Colorado Gazette reporter quotes the homeowner association president,

“She still has rights as an owner,” [he] said. “It’s a legitimate issue. We’ll consider it, as long as she’s civil and doesn’t call people names. We’re not in the punishment business.” [emphasis added].

Say again????

HOAs are in the punishment business 

1.  When it possesses foreclosure rights that usually exceed US Supreme Court opinion on excessive penalties in insurance damage claims (State Farm v. Campbell, 538 U.S. 408 (2003) ) —  the “it’s not fair for good people to pay for deadbeats” slogan used by proponemts of HOAs and supporting state legislators; 

2.  When it issues, not uncommon, $25-$100/day fines for trivial, alleged violations;

3.  When it denies proper due process ( the ‘standard’ CC&R and statute wording only mentions “an opportunity to be heard”), by failing to include with respect to this so-called hearing, “by an impartial tribunal where the homeowner can present and question witnesses” — the recognized standard for proper due process hearings;

4.  And when it operates with homestead exemption laws that exclude homeowners living in HOAs as a special class of citizen from general exemption laws that apply to all the residents of the state.

No, it is quite clear that HOAs seek to punish as a detriment to other homeowners who may insidiously plan, as it appears HOA board thinking goes, to avoid paying HOA debts.  Never mind any factors beyond the control of the homeowner, like death of the bread-winner, loss of employment, market downturns, personal family financial obligations,   such as unexpected doctor and hosital bills, etc.  HOAs seem to ignore the fact that our society operates with a more compassionate view of  “fairness” .

No, the homeowner must pay no matter what, for as long as he lives in the HOA, because his home is collateral for HOA expenses.

 Excerpts . . .

Can individuals contract to establish a governing body that controls and regulates the people within a territory, and avoid adherence to the US Constitution, by means of a contract that is contrary to and ignores the state municipality laws?

 

How has this state of affairs come to be?  The HOA legal basis for the exclusion from the application of the 14^th Amendment is the use of CC&Rs, the interpretation of CC&Rs as binding contracts — but not contracts of adhesion — and the equitable servitudes doctrine of “constructive notice”.  This legal basis to sidestep the Constitution raises serious questions regarding the unconstitutional surrender of fundamental rights.

 

Supporters of HOAs point to the general consent doctrine as applied to public governments:  if a person lives in the political jurisdiction, then he is assumed to have consented to be governed.  (Pro-HOA supporters apply this same rationale with regard to adhesion contract criticism: no one forced him to buy in HOA-land). If people buy into HOA-land, then, it is argued, they consent to be governed as if the HOA were indeed a public entity and not subject to the restrictions of contract laws.  Yet, HOA governance is not public governance, but contractual private governance.

From Villa de las Palmas opinion, “We conclude that under the plain and unambiguous language of [the California Davis-StirlingAct], use restrictions in amended declarations recorded subsequent to a challenging homeowner’s purchase of a condominium unit are binding on that homeowner . . .  Subjecting owners to use restrictions in amended declarations promotes stability within common interest developments. “

And what about enforceable binding contracts?

read the complete paper . . .

Bob Metcalf wrote a piece on his discovery of an unusual HOA web site, one that declares the HOA as a truly democratic organization (See Kentlands_tragedy).  This Gaithersburg, Maryland HOA calls itself, in its Declaration, “Kentlands Community Charter (Covenants, Conditions & Restrictions)” (See Kentlands site).  It’s homeowner’s guide reads:

“What definitively sets Kentlands apart from other homeowners associations (HOAs), though, is its democratic system of community governance. Because HOAs must, by Maryland law be organized under the laws that regulate business corporations, they are required to be governed by a board of directors (trustees). The typical result is an essentially autocratic system of governance, one to which many homeowners object because of the lack of public participation and absence of checks and balances.”

 “Kentlands has addressed some of the structural defects that are inherent in HOAs by creating a system of governance that is modeled after traditional American public government organizations. There are, in essence, three branches of government: legislative, executive, and quasi-judicial.” 

This was intriguing, a bona fide attempt to establish a democracy under a corporate form of government.  However, the governing documents tell another story, as Bob reports.

Read the complete commentary at Kentland.   

A review of recent media reporting on HOA incidents and developments reveals a noticeable, favorable trend in attitudes.  In the past, going back to just the 2000 – 2001 time frame, the media only interviewed HOA attorneys, many of whom were CAI members, but this important fact was not revealed to the readers/viewers.  They portrayed a just and rightful HOA board having to deal with troublesome, disgruntled homeowners who just didn’t know how to get along in an HOA.

Now, the media is reflecting the actions and decisions of these boards, including defensive answers and their justifications for their actions in spite of new state laws created to protect homeowner rights.  For example, in spite of new laws protecting the rights of homeowners to fly the American flag, homeowners are still being denied the right to fly the American flag.  What is finally being reported to the public is the legal, but unfair and unjust nature of the governing documents and state laws that create homeowners living in HOAs as second-class citizens. 

While the HOA boards and supporters, led by the national lobbying trade group, CAI, are still there attempting to defend this state of affairs that has produced a New America, they are finding it harder to convince the public of the righteousness of their arguments.  The media are beginning to expose the CAI view that HOAs are really businesses, which is shocking to many homeowners. And the fact that these private governments are protected from the application of the Bill of Rights because the courts have held the covenants to be binding contracts, yet the homeowner has not signed any such governing documents. The media are also exposing the fact that these governing documents, the CC&Rs and by-laws, do not explicitly contain wording to alert the homeowner that he is “willingly, and with full knowledge, surrendering his rights and freedoms” as claimed by HOA supporters.  (What is very disturbingly is that the state legislatures do not seem to see any problems in supporting and mandating HOAs that deny their citizens many rights and freedoms that other homeowners still enjoy).

In an earlier Commentary, “Continued national HOA problems and the failure of the media”, July 2007, contained a quote from a NY Times Executive Editor who spoke of the role of the media,

 

Our job is not to ’support’ our leaders, not to buy in to any administration . . . but our job should be to figure out what they believe and why, and how all of that shapes the policies they make. We are obliged to get past the labels and slogans.

 

This role of the media, and the special status granted to it by the First Amendment to the US Constitution as protector of the people, and not of  any government whether federal, state or private HOA government, was well stated by US Supreme Court Justices Black and Douglas.

In the First Amendment the Founding Fathers gave the free press the protections it must have to fulfill its essential role in a democracy. The press was to serve the governed, not the governing . . . The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

NY Times v. U.S., 403 U.S. 713 (1971).

While so many clamor about the interference of big government and their fight to protect individual rights and freedoms, the media had failed to inform the people, the public policy nonprofits and the legislatures under its obligation to protect the people in a democracy.  Today, the public is getting to see the first glimpses of the full story about the emergency and quiet acceptance of homeowner associations. 

More needs to be revealed.  There is no national security issue with HOAs.