HOA Constitutional Government

The CAI Rights & Responsibilities statement, offered as a guide to build better communities, reads in part,

Homeowners Have the Right To:
1. A responsive and competent community association.
2. Honest, fair and respectful treatment by community leaders and
managers.
6. Live in a community where the property is maintained according
to established standards.
7. Fair treatment . . . .
8. Receive all documents that address rules and regulations governing
the community association . . . .
9. Appeal to appropriate community leaders those decisions affecting
non-routine financial responsibilities or property rights.

Comment: These so-called rights have never been reduced to a bill of rights and made part of the legal contract between homeowner and HOA. As it stands, these are just statements of policy without any legal obligations placed on the HOA.

Homeowners Have the Responsibility To:
1. Read and comply with the governing documents of the community.
2. Maintain their property according to established standards.
6. Contact association leaders or managers, if necessary, to discuss
financial obligations and alternative payment arrangements.
7. Request reconsideration of material decisions that personally
affect them.
9. Ensure that those who reside on their property (e.g., tenants,
relatives, friends) adhere to all rules and regulations.

Comment: These obligations imposed upon the homeowners quickly become exercises in futility when the HOA ignores and is non-responsive to homeowner communications. Some of these responsibilities are actually state laws relating to HOA conduct, and not homeowner conduct. Some of these responsibilities assume that the “laws” of the community have been openly and fairly debated and voted upon by all homeowners, when such is not the case and where many CC&Rs do not permit homeowner participation in the drafting of the standards, and rules and regulations or even amendments to the bylaws.

Rather shockingly, CAI fosters a police state where it is a responsibility of the homeowner to inform the authorities of violations of “state” laws (see 9).

And, under “Community Leaders Have a Right To”, we see many of these so-called rights as really obligations of the board, not a right of a homeowner, or as mandated homeowner behavior and attitudes equivalent to “politically correct” behavior denying the homeowner his right to display dissatisfaction with board actions and behavior. For example,

“2. Expect residents to know and comply with the rules and regulations
4. Conduct meetings in a positive and constructive atmosphere.
5. Receive support and constructive input from owners and nonowner residents.”

Furthermore, under “Community Leaders Have the Responsibility To”, we once again see no legal responsibility by the HOA to act according to these “ought to” statements. In fact, the punitive aspects in these statements are the only responsibilities put into law, but they are meaningless laws without penalties against the boards for violating the laws, or as a deterrent against future acts by the board in violation of state laws and the governing documents.

Summary

While CAI’s R & R policy may make good reading, it fails to make any of these “suggestions” part of the governing documents and state laws, or part of a homeowner’s bill of rights, or to seek accountability and penalties against HOA that currently violate state laws and the governing documents with impunity. CAI ignores the reality of the HOA model and its legally binding Declarations, and ignores the conduct of it members who continually seek the enforcement against “letter of the law” violations, in contrast to R & R appeals for fairness and just treatment. CAI’s Rights and Responsibilities does not deal with reality, nor has CAI lobbied for the legalization of its “ought to” recommendations.

The CAI Rights & Responsibilities statement, offered as a guide to build better communities, reads in part,

Homeowners Have the Right To:
1. A responsive and competent community association.
2. Honest, fair and respectful treatment by community leaders and
managers.
6. Live in a community where the property is maintained according
to established standards.
7. Fair treatment . . . .
8. Receive all documents that address rules and regulations governing
the community association . . . .
9. Appeal to appropriate community leaders those decisions affecting
non-routine financial responsibilities or property rights.

Comment: These so-called rights have never been reduced to a bill of rights and made part of the legal contract between homeowner and HOA. As it stands, these are just statements of policy without any legal obligations placed on the HOA.

Homeowners Have the Responsibility To:
1. Read and comply with the governing documents of the community.
2. Maintain their property according to established standards.
6. Contact association leaders or managers, if necessary, to discuss
financial obligations and alternative payment arrangements.
7. Request reconsideration of material decisions that personally
affect them.
9. Ensure that those who reside on their property (e.g., tenants,
relatives, friends) adhere to all rules and regulations.

Comment: These obligations imposed upon the homeowners quickly become exercises in futility when the HOA ignores and is non-responsive to homeowner communications. Some of these responsibilities are actually state laws relating to HOA conduct, and not homeowner conduct. Some of these responsibilities assume that the “laws” of the community have been openly and fairly debated and voted upon by all homeowners, when such is not the case and where many CC&Rs do not permit homeowner participation in the drafting of the standards, and rules and regulations or even amendments to the bylaws.

Rather shockingly, CAI fosters a police state where it is a responsibility of the homeowner to inform the authorities of violations of “state” laws (see 9).

And, under “Community Leaders Have a Right To”, we see many of these so-called rights as really obligations of the board, not a right of a homeowner, or as mandated homeowner behavior and attitudes equivalent to “politically correct” behavior denying the homeowner his right to display dissatisfaction with board actions and behavior. For example,

“2. Expect residents to know and comply with the rules and regulations
4. Conduct meetings in a positive and constructive atmosphere.
5. Receive support and constructive input from owners and nonowner residents.”

Furthermore, under “Community Leaders Have the Responsibility To”, we once again see no legal responsibility by the HOA to act according to these “ought to” statements. In fact, the punitive aspects in these statements are the only responsibilities put into law, but they are meaningless laws without penalties against the boards for violating the laws, or as a deterrent against future acts by the board in violation of state laws and the governing documents.

Summary

While CAI’s R & R policy may make good reading, it fails to make any of these “suggestions” part of the governing documents and state laws, or part of a homeowner’s bill of rights, or to seek accountability and penalties against HOA that currently violate state laws and the governing documents with impunity. CAI ignores the reality of the HOA model and its legally binding Declarations, and ignores the conduct of it members who continually seek the enforcement against “letter of the law” violations, in contrast to R & R appeals for fairness and just treatment. CAI’s Rights and Responsibilities does not deal with reality, nor has CAI lobbied for the legalization of its “ought to” recommendations.

Amitai Etzioni writes about ideals for a better community¹.

WE hold that law and order can be restored without turning this country into a police state, as long as we grant public authorities some carefully crafted and circumscribed new powers.

WE hold that people can live in communities without turning into vigilantes or becoming hostile to one another.

WE hold that our call for increased social responsibilities is not a call for curbing rights.

WE hold that powerful special-interest groups in the nation’s capitol, and in many statehouses and city halls, can be curbed without limiting the constitutional right of the people to lobby and petition those who govern.

The author summarizes:

“We suggest that free individuals require community, which backs them up against encroachment by the state and sustains morality by drawing on the gentle prodding of kin, friends, neighbors, and other community, members, rather than on building government controls or fear of authorities.”²

In the above, we can replace “public government” and “government” with “private, contractual government” and “HOA government” and the statements will be equally applicable, and more so since HOA governance lacks “some carefully crafted and circumscribed new powers”, as stated in the first paragraph above.

If you read the Community Associations Institute’s “Rights and Responsibilities”³, a term borrowed from the communitarian philosophy, we immediately come away with another view of community, one that solely focuses on and emphasizes the responsibilities of homeowners within their community. This document even fails to call for a homeowner’s Bill of Rights (see AARP Homeowner’s Bill of Rights, http://assets.aarp.org/rgcenter/consume/2006_15_homeowner.pdf), leaving some 275,000 Americans subject to highly restrictive and oppressive contractual documents that give the homeowner very few rights — the right to vote and to enjoy the amenities, if any, provided he does not fall behind in his payments to the HOA. Otherwise, the homeowner is subject to covenants, conditions, and other restrictions on his fundamental freedoms, quite contrary to the communitarian statement above, “WE hold that our call for increased social responsibilities is not a call for curbing rights.”

The special interest HOA propaganda has made public government interference in your life the targeted enemy, in order to avoid any focus on the “built-in” tyranny of the local community government, the HOA. This propaganda implies that tyranny and interference by local government is what the homeowner had signed-up for, wants, and has voluntarily accepted.

The planned community model with its authoritarian government, the HOA, and supported by special-interest lobbyists for the profiteering of their members, while attempting to justify the oppression by co-opting the ideals and tenants of respectable, socially beneficial philosophies, must come to an end. The planned community model must be radically revised so it can coexist within the democratic form of government so cherished here in the United States. If not, it must be subject to “muni-zation”, or the equivalent of municipal government nationalization.

NOTES
1. The Spirit of Community, Amitai Etzioni, p. 1 – 2 (Touchtone 1993). (Communitarian philosophy).

2. Id, p.13.

3. Rights and Responsibilities, CAI (http://www.caionline.org/rightsandresponsibilities/index.cfm (Dec. 11, 2006).

Through out the country we continue to have the increased creation of authoritarian, privately chartered principalities called homeowners associations. All under the careless or non existent oversight of state legislatures that delegate their sovereign powers to these private entities.

Can a state legislature delegate its sovereign powers to private governments that are not subject to the application of the 14th Amendment? Can the legislature create and sanction private governments unaccountable to civil government, and thus unaccountable to the people of the state? Is this not an act providing for the unequal protection of the laws?

Questions are arising concerning the wording of the 14th Amendment, Section 1:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside. . . . No state shall make or enforce an law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws.”

Are these fictitious persons, HOAs, subject to the jurisdiction of the state? Yes, they are. Are the people living under the control and regulation of these quasi, de facto territorial governments subject to the jurisdiction of the state? If so, then according the Amendment they must be protected by the application of this same Amendment. HOA governments must be subject to the same accountability and restrictions as any other civil government entity. If not, then there is a new social order severely altering the American system of government, and the US Constitution no longer has any meaning.

By virtue of not holding private HOAs subject to the application of the 14th Amendment and the Bill of Rights, and since the 14th Amendment has been found applicable to state agencies, then state legislatures have granted HOAs broader powers and functions, with less oversight, than required of any state agency . This is unacceptable and must not be allowed to continue.

As I far as I could determine, from my non-lawyer research, the issue that constructive notice meets the US Supreme Court judicial review tests for the surrender of constitutional rights has never been specifically challenged. The complex issues relate to the taking of one’s rights and property under the 5th and 14th Amendments without “due process“, or a violation of the “equal application of the laws” doctrines.

Under procedural due process, levels of review have been stated regarding any such “takings” — were proper procedures followed in the taking. Under substantive due process, was the Constitution violated?

In procedural due process, for example, minor rights need only meet the “government interest” test — it’s in the interest of the government to take away such rights, as putting up signage on one’s property, or notice of an HOA violation. And, under substantive due process, there are the “fundamental rights” that are NOT found in the Constitution, but have been determined by an activist Supreme Court.

US v. Carolene Products Co., 304 US 144 (1938) (the landmark Footnote Four decision); Planned Parenthood v. Casey, 505 US 833 (1992) (Footnote Four Plus). For a general discussion, see Constitutional Law, Sec. 11.5 – 11.7, Nowak and Rotunda, (West Group 2000).

In regard to HOAs and planned communities, the task before advocates is very similar to the landmark civil rights cases relating to “separate but equal” facilities in Plessy v. Ferguson, 163 US 537 (1896), which was overturned in part with respect to education by Brown v. Bd. of Educ., 347 US 483 (1955):

Are private HOA governments separate but equal to public government?

Lower courts have implicitly said “Yes” by their decisions to uphold the loss constitutional rights, without examining or raising the issues of explicit agreeement, sufficient notice and a legitimate government interest. It appears that our courts have held that,

“No, Americans do not have a right to public government.”