HOA Constitutional Government

The fact that HOA boards are corporate entities and not public bodies raises the question of “loyalty” or duties.  Do your representatives act in the best interest of their constituents, the people, or in the best interests of the state?  We know that, as a corporate entity, boards are required to act in the best interest of the HOA, the state, and not in the best interests of the people, the homeowners.Is there any real difference between the “state” and the “people”?  Is there any difference between the HOA and the homowners?  CAI and the courts argue yes, there is a difference.

Should HOA boards be required to true elected representatives of the the homeowners as our public officials?  

A well known political scientist involved in HOA matters commented on a 2004 speech, excerpted in the NY Times, by Mayor Giuliani. (See Freedom).

This person commented that: “Freedom is about authority? This is an issue in HOA and condo living, too. This speech is from 1994, but it is worth thinking about.”

In his speech, Mayor Giulanai talked about legal authority,

“Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do. “

I say,

Let’s seriously think about the “lawful authority” of HOAs, and the adhesion contract, the biased state laws protecting authoritarian regimes, and the question of free and open consent with full knowledge without explicit agreements to surrender constitutional rights and freedoms. 

The consent of the homeowners, the people, is not freely and openly given to warrant such acceptance and consent, giving ethical, moral and legal justification that the laws must be changed.  The institutions within HOAs are not democratic and are not based on the American model of government, but are based on the corporate form of governance that has no provision for protecting the constitutional rights and freedoms — the unalienable and individual rights — of homeowners.

This should be the mission of every person who considers himself a homeowner rights advocate.

Former CAI president, and attorney, J David Ramsey  published an article, “Twin Rivers Analysis”, attempting to emphasis that homeowners do have constitutional rights in HOAs, and that we need judicial review to protect those rights.  Of course, he somehow alludes to the awkward argument that as a government, the HOA couldn’t set restraints on homeowner rights, which surprise, surprise, are for the good of all and not to protect individual rights.  (My emphasis).

The Court emphasized that the character of the restriction is of importance, not the identity of the party who would impose the restriction. Thus, the question of whether a particular covenant in a contractually-created community violates an owner’s constitutional rights of expression finds its answer in well-established property law jurisprudence. Only in this context, will we be guided in such a way to balance  all constitutional interests and evaluate the reasonableness of any one restriction in a private Community setting.

The Court also upheld our sacred rights of free speech and expression by understanding that, in an interdependent community of people who chose to reside in a common interest community, these rights of expression and speech do not only exist for one, but for all.

Right out of the Restatement Laws, Third Property (Servitudes) § 3.1. Doesn’t that sound like socialism —  “for the greater good”  — and at odds with American values and beliefs of individual rights and liberties. You know, why we have the US Constitution and Bill of Rights to restrict government, public or private, from abuse of power.

The quote about “contractually-created community” avoids questions of the validity of the contract, and whether the property-servitudes doctrine of constructive notice satisfies the required level of judicial review for the loss of constitutional rights.  (If you don’t quite understand this, Ramsey, as an attorney and past CAI president, sure as hell does).  Furthermore, does the taking of property and other rights by an amendment without the homeowner’s consent also satisfy judicial review requirements?  Or, the absence of an explicit, signed consent to an actual  and specific right being surrendered rise to the required level for judicial review.  (Here, in spite of the word “contract”, the HOA is treated as the equivalent of a municipal government).

The issue of consent and judicial review was ignored by the NJ  Supreme Court, and in Ramsey’s inadequate analysis of Twin Rivers. As mentioned elsewhere, the repeated assurances that HOAs are indeed subject to the Constitution falls flat on its face when the courts continue to place property law superior to the Constitution as the new supreme law of the land.

When a private property owner imposes limitations on free speech, however, and a court overturns those limitations, there may well be an interference with constitutionally protected property and privacy rights. The New Jersey Supreme Court understood this distinction and took great pains to express the limited scenarios under which private property owners will be treated in a manner similar to the government.

For these reasons we suggest that it is inappropriate to interpose statements of legislative intent concerning constitutional rights in UCIOA or any other legislation affecting common interest communities.

These arguments are lost on me.  If a government interferes there’s no loss on rights, but when a private person does then he may lose his rights?  What about these homeowners?  Didn’t they lose their rights?  Or, is Ramsey arguing that the fictitious person, the HOA, was protected and its constitutional rights were protected by this decision? What’s his point?  In his conclusion, Ramsey restates CAI’s opposition to court interference by means of judicial review like here in Twin Rivers (seems he’s breathing a sigh of relief that the decision went against the homeowners).

Ramsey spends much time to defend the use of Schimd (NJ case) by the court to arrive at its decision, while omitting any reference to those other tests of state actors set forth by the US Supreme Court that have definite application to this case.

Read Ramsey’s article with reference to the independence of HOAs from the Constitutional protections of individual rights versus communal rights.  Does he clearly demonstrate that the Constitution really protects your rights within a private organization, in spite of his lengthy attempt to convince the reader otherwise.

A link to Ramsey’s article appears in the CAI Ungated blog: http://cai.blogware.com/blog/_archives/2007/8/7/3144730.html

 

America is no longer a country governed under the laws of the land, but by the laws of men and the predilections of judges.  Americans are living in a society that has been reinvented by public interest firms, government officials and the courts, including the US and state supreme courts.  A society where black is defined to look like white, and white is defined to look like black.  Where what you see is not what you get – a modern version of the Wonderland of Alice, and Lewis Carroll.  Where important and meaningful philosophies and political theories are made less and less distinguishable so that everything A is like everything B. 

Where traditional legal meanings such as constitutional and private property rights have become whatever the current group in power says they are.  Where “government intervention” really means “laissez faire” government at the turn of the 20^th century, or that “anything favorable to business goes”.  Where the courts have upheld the common law of equitable servitudes superior to constitutional and state laws, and, therefore, as the true supreme law of the land. 

. . . . 

This can be accomplished quite easily and painlessly, if it were not for the national lobbying organization’s pursuit of its personal agenda for “laissez-faire” private governments, and its insistence on complete independence of HOAs from the judicial application of the supreme laws of the land.  Completely independent of course, except under the centralized, national dominance of UCIOA, and its derivative state laws and CC&Rs, that establish authoritarian regimes contrary to the American system of government.

Read the complete 11 pages . . .

After being in existence for some 24 years, the national commissioners felt the need to add a homeowners bill of rights to UCIOA, responding to outcries from homeowner rights advocates, and others such as AARP, for the need to protect homeowners.  However, a quick glance at the committee draft of the supposed UCIOA Homeowners Bill of Rights Act for homeowners reveals the now all too familiar industry redefinition of common words  — label it according to what they want to hear, but give homeowners only token changes.    

These proposed amendments bring to mind Hans Christian Andersen’s fairy tale, The Emperor’s New Clothes, and more specifically, the negotiations between India’s demands for independence against the British. Gandhi is offered token reforms to appease demands for true local government.  He replies that they are unacceptable. A British officer retorts with, “Hear, hear!  India is part of the British Empire and . . . .”  Gandhi cuts him off with, “India belongs to the Indians!” 

HOAs belong to the homeowners, not to the industry business trade groups attempting to subject homeowners to special state laws that create private, authoritarian governments under UCIOA, permitting HOAs to remain outside the application of the Fourteenth Amendment to the US Constitution.  

To view the complete email to the NCCUSL commissioners, see UCIOA.