HOA Constitutional Government

In the newly released book by Nelson, Private Neighborhoods, Nelson quotes Citizens Against Private Government HOAs (former name of this organization), pp. 342-3, Ch. 16, “The Executive Office”.

The material used (dated from 2003) reads, in part:

“According to this group, the lack of rights protection reflects in part the fact that ‘the HOA lacks a separation of powers doctrine as found in every level of American government’ . . . .”

“[W]hile members may vote for board members as if they were electing councilmen or legislators, the HOA is not a real democratic institution.”

The pattern of these chapters is to introduce prevalent problems and then the author presents his solutions.

Private Neighborhoods and the Transformation of Local Government, Robert H. Nelson, (Urban Institute Press 2005) [Not affiliated with the Urban Land Institute, ULI. See http://www.urban.org/%5D.

Private Neighborhoods and the Transformation of Local Government, Robert H. Nelson, (Urban Institute Press 2005) [Not affiliated with the Urban Land Institute, ULI. See http://www.urban.org/%5D.

In reading Part V, “Creating HOA Constitutions”, of Bob Nelson’s new book, Private Neighborhoods, its 3 chapters are called: The Neighborhood Legislature, The Neighborhood Executive Office and The Neighborhood Judicial Branch.

In his intro to this part he says, among other things,

“The purpose of a constitution is to set the ground rules for governance. . . . Yes the rise of the private neighborhood has resulted in far and away the largest number of new constitutions in recent years. [Is he referring to HOA pincipalities?] . . . . [T]he real estate lawyers and their developer clients . . . With no previous experience available to understand what the pros and cons would be to live in a community controlled by covenants, [governing documents] were born . . .”

Author Robert Nelson advocates the rewritng of HOA constitutions, allowing for the exercise of pro-active local voice in the governnace of the community. He admits that the big obstacle to creating communities has been the real etate profession’s drafting of the CC&Rs with a concern for the profitability of the developer so he can easily exit the governance of the subdivision. In short, he propounds the current special interest view that private HOAs offer more local influence and should replace local governance.

But, he doesn’t mention the 14th Amendment protections against state and local government violations of our rights. He seems to think that’s not an issue. Rather, he refers to law of covenants and equitable servitudes as rewritten in the Restatement (Third) of Servitudes (2000) as the basis for rewritng the HOA declaration/constitution. So much for the American way of life.

I don’t think anyone here is going to create a better set of rules than are already in existence, for better or for worse. This, I believe without reading the details, is what Nelson is promoting: The end game of planned communities is the legitimization of the private HOA form of government, accepted by all, replacing civil local government without the Bill of Rights.

Then, we will become The United HOAs of America. That’s where you must be watching.

August 17, 2005

Dear SacBee Editor,

Curtis Sproul’s letter called for the protection of CIDs as if they were a threat to the national security of California. Save the CID from government legislation and interference with a private association, he seemed to be arguing.

This “hands-off” treatment of CIDs, as if they were principalities with their own private constitutions and laws, ignores the fact that CIDs are undemocratic and are foreign to fundamental American values and principles. Just because a homeowner can vote doesn’t make the CID a democracy — you can vote in Cuba and China. Where are the separation of powers, the checks and balances, and the due process and equal treatment under the law protections of the 14th Amendment of the US Constitution? While they apply only to government entities, they do not apply to private contractual governments.

What is the reason why CID special interests oppose the application of the US Constitution protections to homeowners? Surely not for national security reasons. Maybe they realize that a concern for the American belief in individual rights and freedoms, protections that are lacking the declarations and in the CID legal scheme, would result in the loss of the power to coerce and intimidate homeowners into compliance. Such typical devices, sadly sanctioned by the state, are foreclosure and financial ruin through liens for fines.

These 14th Amendment protections must apply to CIDs, and CIDs must accomplish their goals of property value protections under the American system of government.

[unpublished]

What individual rights, as are recognized by the law and our government, exist in the HOA contractual government? None. Read your CC&Rs, which do not specify any rights except the right to the use of amenities under restrictive conditions. And, if you are behind in your monetary obligations to the HOA, like a common criminal in our society, the homeowner is disenfranchised and that right is lost. The HOA contractual government is a blot, a hugh stain, on the American system of government.

The proponents of planned communities, from their very existence with the HUD/ULI/FHA backed Homes Association Handbook of the 1960s, not only preferred it that way, but quickly learned that mandatory membership and compulsory dues under a private contract, to remove the application of the 14th Amendment protections, was necessary to make planned communities work. They then spent their efforts to convince government officials, public policy makers, the media and the public on what a great and grandiose innovation they were promoting. See the ULI and CAI funded book, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, Donald R. Stabile (Greenwood Press 2000).

The principles of American government never really concerned them — it was a profit making endeavor, not the creation of a better community as was, at least, the ideals of the Progressive Movement of the early 1900s. “They [CAs] exhibit a combination of traits in keeping with a consumer product sold by a profit-seeking firm, a legal device, a corporation reliant on both coercive and voluntary cooperation … “(pp. 102 -104). “Of these alternate forms of association, TB50 [the Homes Association Handbook] highlighted the automatic-membership under CC&Rs as the most effective” (p.93).

This Handbook is over 40 years old, and sadly, the truth of its statements stand today. Why isn’t our government demanding that the governance of planned communities provide for the protection of homeowner rights as the homeowner would have if not living in an HOA? Why aren’t our legislators standing by the US and state constitutions and upholding our individual rights guaranteed by these constitutions?

Letter to Arizona Capitol Times, August 5, 2005

In the Arizona Capitol Times article on the homeowner association proxy bill or “ominous bill” if you prefer, about to become law, Rep. Chuck Gray, R-19, responds to my advice that HOAs should come under the municipality laws of the state. In this way, there would be accountability by the HOA boards. [New HOA Law Bans Proxy Votes, Makes It Easier To Oust Board Members, Page 3, July 29]

Rep. Gray says that he does not see that happening. We also know, based on Legislative performance over the past five years with numerous bills in regard to holding HOA boards accountable, that the likelihood of such efforts is nil. The conclusion can only be that the Legislature is being held hostage by the HOA partisans, forcing it to beg and plead with the HOA boards, attorneys and management firms to behave, to obey the law, to stop causing all these problems.

Or perhaps the other explanation is that the Legislature does not give a hoot about homeowner rights.

Given this set of circumstances, the future will remain troublesome, and it will grow as more and more HOAs come into being.

George K. Staropoli