HOA Constitutional Government

In further reaction to bona fide criticism, CAI continues its machinations of using front organizations in a futile attempt to legitimize it, those associations of hired hands, like COCA in Florida and CACM in California, and those illegitimate associations of the management-class HOA boards, like ECHO (Exec. council of Homeowners, which, in reality, is a misnomer and should be ECHOA, the Exec. Council of HOAs), as the voice of the homeowner before legislators and government agencies and commissions.

At no time have any of these industry supporters — the supporters of the fictitious person, the corporate HOA government — been granted any such authority by the homeowners, the employee-class within the corporate HOA business organization; not in the Declaration, nor by any valid vote or referendum on any particular issue by the homeowners. These groups are illegitimate representatives of the people, the homeowners. They act, however, as if they are the legitimate representatives in all political matters, but they are not the duly elected political representatives.

We see the comments by these groups in the July-August issue of CAI’s Common Ground magazine article, “Call & Response.” The comments that assert the right of the HOA, as an authoritarian private government operating outside the protections of the US Constitution, to control and regulate the people within the territory defined by the subdivision, the homeowners.

We see CAI’s attempt to enlist the support of homeowner associations in order to be the legitimate voice of the HOA, and by some far stretch of the imagination, of the people living in the association. As admitted by the CEO of CAI, Tom Skiba, HOAs are a business and not a government, yet in an outright contradiction to this statement, CAI continues to regard the HOA as the legitimate political government of the homeowners. In a clandestine operation, CAI has setup a website, http://www.responsibleneighbors.com/ as a front to appeal directly to California HOAs to support the CAI platform in the legislature.

Unfortunately, the HOA board speaks for the corporate entity, the HOA, and not the people, and have no legitimate authority to speak for the people. The legislators and government officials must clearly accept this fact. These government officials must look to the true homeowner advocates, and not be confused by the CAI attempt to instill confusion by referring to themselves as HOA advocates, for direction on how to proceed.

For important information on the role and purpose of CAI, see the CAI: The National Lobbyist for HOA Principalities Report.

Commentary regarding the CAI Common Ground article on advocates, part 2, “Call & Response” in its July-August issue.

I believe that “the business of HOAs is business” is an accurate paraphrase of the statement made by the CEO of CAI, Mr. Skiba, in CAI’s Welcome to Ungated forum. I must also assume that the business must be directly related to maintaining property values, the prime objective of all HOA Declarations. Just what this business is, Mr. Skiba fails to make clear. Is it a landscaping business? An architectural business? Trash collection? A resorts management company? A hotel management company?

Read the complete commentary

The formation of private HOA governments raises the same concerns of 250 years regarding the legitimacy of the social contract between the members and the community, the bona fide existence of mutual consent, and the protection of individual rights within the community.

. . . .

In spite of the above, supporters and proponents of HOA governance repeatedly use the simplistic argument: If you don’t like it or can’t accept the HOA, move out. That’s equivalent to saying, “If you don’t like the President, then move out of the country”. This argument by the proponents was addressed quite intelligently and with sound reasoning, more than 250 years ago in The Social Contract, where Rousseau states, “After the state is instituted, residence implies consent: to inhabit the territory is to submit to the sovereign”, but cautions in his footnote that,

This should always be understood as . . . [not referring to conditions affecting] family, property, lack of [housing], necessity or violence [that] may keep an inhabitant in the country unwillingly, and then his mere residence no longer implies consent either to the contract or to the violation of the contract.

The complete commentary can be read at Contract.

Expose the illusions of justice and the myths of the equal protection of the laws”

The legislature is the sovereign of a republican form of government, and that it’s the only game in town. Homeowners must attain the power to influence and change the views and attitudes of the legislators.

To accomplish this we must make it clear to the legislators and government officials that they must choose between continued support of private special interests who promote and support laws denying citizens their constitutional protections so they can make a buck; or to abide by their oath of office and support and uphold the US Constitution.

But let’s not be afraid to

1. name names,
2. expose the myths and illusions of justice and fair play,
3. confront those misleading and half-truths from the special interest,
4. challenge the misleading statements and half-truths of the special interests that have gone far too long unchallenged and have now become unquestionably accepted as being true,
5. support our positions with references to published authorities and media statements, and
6. to refrain from being argumentative and to avoid any personal attacks.

Further information on this campaign for victory can be found in this PDF version of a PowerPoint file: Rules of Engagement.

Dear California Legislators,

While civ: 1352 of the Davis-Stirling Act (please note that this Act has been placed under the Civil Code and not the Business and Profession Code) declares how a CID is created, “This title applies and a common interest development is created whenever a separate interest coupled with an interest in the common area or membership in the association ….”, 1363(a) mandates a homeowners association, to be known as a community association and not a CID association, “A common interest development shall be managed by an association that may be incorporated or unincorporated. The association may be referred to as a community association.” Yet this imposition of a private government lacks any homeowner protection as with a Homeowner Bill of Rights, nor does this provision require approval by a state agency or legislature, as would be required if the CID were attempting to form an incorporated community within the state structure.

The operative word is “shall” and constitutes a delegation of legislative powers to the community association. Under common interpretations of the US Constitution, this makes the association a state actor and subject to the 14th Amendment prohibitions as any other government body.(1) This state of affairs subjects these CIDs to meeting the recognized standards of proper due process equal application of the laws protections under the 14th Amendment.

While paragraph 1363(g) seems to provide proper notification of “crimes against the CID” by requiring that a schedule of violations be adopted and provided to each homeowner, much like in the public sector where criminal law requires that a crime must be contained in some statute, “[T]he board of directors shall adopt and distribute to each member, by personal delivery or first-class mail, a schedule of the monetary penalties that may be assessed for those violations . . . .”

However, paragraph 1363(h) only requires,

When the board of directors is to meet to consider or impose discipline upon a member, the board shall notify the member in writing, by either personal delivery or first-class mail, at least 10 days prior to the meeting. The notification shall contain, at a minimum, the date, time, and place of the meeting, the nature of the alleged violation for which a member may be disciplined, and a statement that the member has a right to attend and may address the board at the meeting.

This provision does not meet the accepted standards of due process that demands an impartial hearing where the accused may confront the accusers and present and examine witnesses. The homeowners are being short changed.

Under Article 4 of SB551 we have a very good move toward providing for this independent tribunal as a very good attempt to meet established requirements for due process. It’s unfortunate that the bill does not provide a mechanism to insure that the proposed bureau will indeed be there to serve justice for all. A “a pay as you go” procedure, as adopted in Arizona and as we have in the public sector, is a more appropriate approach to attaining this justice.

Notes:
1. See generally, Brentwood Academy v. Tennessee Athletic School ,531 US 288 (2001) (tests for state action); Steven Siegel, The Constitution & Private Govt, W & M Bill Rts J 461 (Summer 1998).