HOA Constitutional Government

Observing the continued behavior and actions of Emperor Donald The Trump, I began to realize that there is no difference between the Trump presidency and that of rogue HOA presidencies.  In fact, Sir Trump proudly admits that he is a rogue president operating as he feels without restraints.

Consider the following behaviors:

1. Lies, misrepresentations, half-truths and flip-flop statements;
2. Pursuing personal agendas;
3. Failing to produce documents as requested violating ethical and legal duties;
4. Failing to respond to queries from those he represents who have the right to know;
5. Defending his actions as “saving the nation;”
6. Attacking, slandering and vilifying those who criticize him and his views; and
7. Generally exhibiting a defiant and uncooperative attitude in response to the people he represents.

Sound familiar?  So sad, so sad.

In May this year I wrote (“HOA-LAND, a lesson for politicos surprised by Imperial Presidency“),

Why are the politicos so surprised at this inevitable turn of events with Imperial President, Donald the Trump, here in the bastion of democracy?  Maybe because they have long ignored the fact that 23% of Americans live in HOA-LAND, where authoritarian governments rule the people outside the fundamental social contract known as the US Constitution.

Now, do you still want to believe that in this New America state legislatures will do the principled thing and stand by the values, ideals and principles of the Constitution, the Bill of Rights, and the Declaration of Independence?

Those proactive individuals and organizations that publish HOA information and opinion using online blogs or through websites are not immune to copyright infringement, and unprofessional and unethical plagiarism.   Most people understand copyright infringement, but do not realize what constitutes plagiarism.

In beginning of online internet publications, the HOA arena had very little comment about the history of HOA development or constitutional violations.  These ideas and comments were put forth in original works not publicized beforehand.   They are protected and should be recognized and honored as such.  For example, Even McKenzie’s Book, Privatopia: Homeowners Associations and the Rise of Residential Private Governments is always cited and quoted properly.  Not so with online intellectual property, work product of internet publishers and authors.

Here is some advice on plagiarism:

 

1.   According to the Merriam-Webster online dictionary, to “plagiarize” means:

• to steal and pass off (the ideas or words of another) as one’s own
• to use (another’s production) without crediting the source
• to commit literary theft
• to present as new and original an idea or product derived from an existing source

In other words, plagiarism is an act of fraud. It involves both stealing someone else’s work and lying about it afterward.

But can words and ideas really be stolen?

According to U.S. law, the answer is yes. The expression of original ideas is considered intellectual property and is protected by copyright laws, just like original inventions. Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file).

All of the following are considered plagiarism:

• turning in someone else’s work as your own
• copying words or ideas from someone else without giving credit
• failing to put a quotation in quotation marks
• giving incorrect information about the source of a quotation
• changing words but copying the sentence structure of a source without giving credit
• copying so many words or ideas from a source that it makes up the majority of your work, whether you give credit or not (see our section on “fair use” rules)

Plagiarism.org

 

2.   What Is Plagiarism?

Plagiarism is the act of taking another person’s writing, conversation, song, or even idea and passing it off as your own. This includes information from web pages, books, songs, television shows, email messages, interviews, articles, artworks or any other medium. Whenever you paraphrase, summarize, or take words, phrases, or sentences from another person’s work, it is necessary to indicate the source of the information within your paper using an internal citation. It is not enough to just list the source in a bibliography at the end of your paper. Failing to properly quote, cite or acknowledge someone else’s words or ideas with an internal citation is plagiarism.

University of Southern Mississippi

 

3.  Plagiarism and Academic Dishonesty

It’s important to note that you need not copy an author’s words to be guilty of plagiarism; if you paraphrase someone’s ideas or arguments without giving credit for their origin, you have committed plagiarism. Imagine that you read the following passage (from Walter A. McDougall’s Promised Land, Crusader State: The American Encounter with the World since 1776):

American Exceptionalism as our founders conceived it was defined by what America was, at home. Foreign policy existed to defend, not define, what America was.

If you write the following sentence, you have plagiarized, even though you changed some of the wording:

For the founding fathers America’s exceptionalism was based on the country’s domestic identity, which foreign policy did not shape but merely guarded.

In this sentence, you have borrowed an author’s ideas without acknowledgment. You may use the ideas, however, if you properly give credit to your source:

As Walter A. McDougall argues, for the founding fathers America’s exceptionalism was based on the country’s domestic identity, which foreign policy did not shape but merely guarded (37).

In this revised sentence, which includes an in-text citation and clearly gives credit to McDougall as the source of the idea, there is no plagiarism.

 

The MLA Style Center   (Modern Language Association)

 

Speaking of what motivates most HOA defense lawyers, I get the feeling that they firmly believe any complaint against an HOA will constitute a crack in the dam.  They seem to act like a decision favorable to the member, especially on issues of substance and constitutional rights, will place HOAs on the slippery-slope to an outbreak of successful court decisions affecting the very survival of the HOA legal scheme as we now know it.

Consequently, they have adopted an attitude of a criminal lawyer whose client is facing the death penalty, and that they must act with all guns blazing in defense of their HOA client.  Any tactic and technique to save the HOA from its impending doom is ethical.  Even crossing the line at times as many of us have personally witnessed.

In 2005 I wrote about Arizona State Bar attorney, and former Chair of the Disciplinary Commission of the Arizona Supreme Court, David Dodge’s article regarding ethical considerations in aiding and abetting the clients (See HOA ethics: vigorous performance or collusion?).  He wrote,

However, the court said, the privilege of rendering professional services is not absolute, and lawyers should not be free to substantially assist their clients in committing tortious acts. The way to protect lawyers in these cases, the court suggested, was to strictly interpret the common law elements of aiding and abetting the alleged breach of a fiduciary duty, as found in the RESTATEMENT, which requires “substantial assistance or encouragement” by the lawyer.

Dodge’s chief charge is that the lawyer “wrongly advised his client.” He warns the lawyers about,

non-clients to whom a lawyer can be liable, even in situations in which the client is not acting as a fiduciary. . . . Lawyers are now permitted to disclose facts that will prevent or rectify harm done by their clients to others while using the lawyer’s services.

Read “clients” as HOAs and potential “non-clients” as homeowners.

Do not be afraid of filing against the HOA attorney for ethical violations as set forth in your state’s Supreme Court Rules of Professional Conduct, Rule 42 with all its E.R.s (ethical rules).
Continue reading Ethical issues with overzealous HOA lawyers

With all the controversy and flap in Washington about the Constitution, I realized that I never really defined the term. I have been using the term “HOA-LAND” as far back as 2007 and continuously since. (Homeowner Associations: ex post facto amendments, consent to be governed, contracts to avoid the Constitution   (Oct. 24, 2007)).

Definition of HOA-LAND:

HOA-Land is a collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States.

A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.  The common, binding element of HOAs is its organic law foundation that is based on The Homes Association Handbook of 1964, and from which flow all state laws and the declarations of CC&Rs boilerplate.

An HOA is the governing body of a condominium or planned unit development (PUD) functioning for all intents and purposes as a de facto local political community government, but not recognized as such by state governments.

An organic law is a law, or system of laws, that form the foundation of a government, corporation or any other organization’s body of rules. A constitution is a particular form of organic law for a sovereign state. The US has indeed a set of documents constituting its organic law.

 

Why are the politicos so surprised at this inevitable turn of events with Imperial President, Donald the Trump, here in the bastion of democracy?  Maybe because they have long ignored the fact that 23% of Americans live in HOA-LAND, where authoritarian governments rule the people outside the fundamental social contract known as the US Constitution.

For years, the politicos and state legislatures have denied that these HOA-LAND governments are de facto governments stripping their people of constitutional protections on the flimsy argument that the people openly and willingly agreed to live under such conditions.  Irrelevant and without merit! This issue is first and foremost a constitutional question!

The very nature of the Declarations of Covenants, Conditions, and Restrictions (CC&Rs) and state laws protecting and defending HOAs are ab initio (from the very start) invalid and unconstitutional.  Everything else that follows in notwithstanding.  Yet, as an example, the Arizona Legislature passed HB 2411 this past session and the Governor signed the bill. It is facially – just read the words – a violation of the Arizona Constitution, Article 4, Part 2, Section 13.

But, who cares?  Certainly not state legislatures, nor the media that has kept its place and remained mum, nor the public interest constitutional “protector” entities.  Nobody cares, and so we have HOA-LAND imperial dictatorships posing as democracies.  “Imperial” because the very legal structure of HOAs does not permit the effective and genuine functioning of a democracy.