HOA Constitutional Government

Arizona advocate Jill Schweitzer published her concerns about the effects of HOA governance on the children living in and growing up in an HOA.[1]  It immediately came to mind how their perception of American democracy and fundamental values of justice, individual rights and equality are so warped by their experience of being subject to the de facto HOA system of government.

Meanwhile, our children and grandchildren are being taught in the Arizona Dept. of Eds. Social Studies program (and I believe in every other state public education system) about a foreign system of government known as the US Constitution.  HOA governments are in essence a parallel – a shadow – government existing alongside constitutional government: A system of government that opposes the Constitution with its protection of individual property rights.

This failure to educate the kids is a major cause of social unrest and will be for generations to come. Today’s students will not be prepared for the reality of HOA life, mistakenly believing, as taught in public school, they live with all the rights, freedoms and privileges of US citizens. The HOA model of government does not recognize US citizenship.[2]

The Arizona high school civics/government standards are comprehensive and detailed. Strand 3[3] encompasses 5 major “concepts:” Foundations of Government, Structure of Government, Functions of Government, Rights, Responsibilities and Roles of Citizenship, and Government Systems of the World.  But not one mention of the form of government in our own backyard that controls and regulates some 20% – 23% of Americans.

In 2015 the Arizona Legislature passed HB 2064 (Ariz. Sess. L. Ch. 1 (2015)) that required high schools students to pass a civics test in order to graduate, beginning in 2017.[4]  The student must correctly answer 60 of 100 questions. A student failing the civics test may retake it until he/she passes the test.  The test is based on the civics portion of the naturalization test for US citizenship. The 2015 test makes no reference to de facto HOA private governments and how HOAs differ from municipal governments.

It is well beyond time that state departments of public education face up to the reality before them regarding HOA private governments, and how they differ from constitutional government. The students cannot be misled any further if social harmony is to be achieved.

 

References

[1] “My Big Bad HOA,” YouTube video.

[2] HOA member Declaration of US and State citizenship.

[3] Social Studies Standard Articulated by Grade Level, High School.

[4] “Civics Test  and Administration Manual,” AZ Dept. Ed., 2015.  See Can your HOA board and managers pass this proposed Arizona HS graduation civics test?

 

In this CAI report,[1] Large Scale Associations (LSA) are defined by CAI as having “more than 1,000 lots or units and budgets of several million dollars, by five primary-use and lifestyle-theme categories—Age Restricted, Mixed-Use, Private Club, Residential, and Resort/Residential.”   CAI is segmenting the HOA into types using criteria that I have been using for years:  resort vs residential.[2] “Private club” would also fall into a resort type community.

In my view, residential is precisely that, a subdivision of homes with minor or no amenities, where the owners do not realize what they have surrendered when entering the HOA. Residential and resort are two different types of animals. They do not mix!

The report goes on to extol the virtues of these LSA HOAs, including a higher percentage of member involvement with local government affairs. And consistent with the “CAI Manifesto”,[3] the report continues the CAI indoctrination, stating that CAI

“is proud to offer the Large-Scale Association Survey as a new tool to benefit managers, real estate developers, land planners, municipal governments, and private citizens seeking information on the amenities and services offered by large-scale associations.”

But what about the people, the average American, seeking to own a home of his own with perhaps an unfounded belief that the HOA scheme will protect his property values? They seem to have been cast aside as collateral damage from the forward march of HOA-Land in America.

The report fails to distinguish a LSA residential HOA from a LSA resort HOA. It fails to provide data as to the percentages of each.  Obviously, one must conclude that the resort HOA has minimal amenities, if any, and may simply have private streets and open space common areas.

However, CAI does not explain a Nevada CAI LAC report[4] in 2011(?) that shows some 2,978 HOAs (CICs), of which only 54 are over 1,000 units. That’s addressing a pitiful 1.8% of the HOAs in Nevada, and a corresponding tiny number of homes getting favorable treatment as compared to the rank and file homeowner.

My view is that all those blogs and commentaries and views in support of HOAs relate to the resort type LSA by far and large.  And the policymakers are also blind to the plight of the average American living in an HOA. The HOA legal scheme is not contributing to the unity of this country for which our presidential candidates are crying out, but for class segmentation and diversity.

 

PS.  The one good thing about this report is that CAI finally mentions, indirectly, that it is a business trade group, a 501(c)6 tax exempt and not an educational organization.  “Community Associations Institute (CAI) is a national nonprofit 501(c)(6) organization founded in 1973 to foster competent, responsive community associations through research, training and educationCommunity Associations Institute (CAI) is a national nonprofit 501(c)(6) organization founded in 1973 to foster competent, responsive community associations through research, training and education.”  Does the average reader know that a 501(c)6 is NOT an educational organization. From the statement above, he wouldn’t come to that conclusion, would he?

References

[1] “308New report examines trends in large-scale community associations,” News and Information From CAI, LARGE-SCALE COMMUNITY ASSOCIATIONS REMAIN POPULAR WITH HOMEOWNERS AND LOCAL GOVERNMENTS https://groups.yahoo.com/neo/groups/CAIerelease/conversations/messages/308?act=reply&messageNum=308.

[2] Analysis of 2005 CAI HOA survey. “With [resort and retirement categories], home buyers have a higher acceptance of rules and regulations, and the obligations to conform in these “institutionalized” settings. With respect to Residential, buyers expectations can run from “just buying a home” to “a property value protection association.”

[3] CAI manifesto: CAI’s plan for HOA-Land in America.

[4] “Why Legislative Advocacy Matters,” CAI Nevada Legislative Action Committee.

Let the truth be known!

Two homeowner rights advocates, Sara Benson (Chicago) and Jill Schweitzer (Phoenix), were responsible for 2 online polls on homeowner satisfaction with HOAs.^[i]  In stark contrast, not surprisingly, the Combined Advocate Surveys, as I refer to them, revealed opinions and views refuting the results of the CAI “happiness” surveys.^[ii] It appears that the CAI studies were happiness studies of happy HOA members.

Under the trade name, George Analytics,[iii] a proprietary investigation and analysis of the 3 surveys was conducted and standard statistical T Tests for validity were applied.  Some observations: both the CAI and Combined surveys were internet polls (CAI included telephone calling) consisted of a reported 800 responses.  CAI’s questions were more generalized and less detailed than the enquiring questions in the Combined surveys, which, naturally, provided more insights into HOA issues and controversies.

Because of the variations in the questions asked and response alternatives provided, some ‘reworking’ was in order.  Consequently, a ‘favorable to HOA’ vs. ‘unfavorable to HOA’ category was adopted and the responses placed accordingly.  For example, a YES response could be pro-HOA or not depending on the wording of the question. Three sets of responses are used as examples:  yes/no, like/favor/prefer, and positive/negative with respect to favorable or unfavorable.  To avoid the yes/no example above, I had to rephrase some questions so that ‘yes,’ for example, was always a favorable, pro-HOA response.

In statistical terms, the George Analytics table below shows that the CAI and Combined responses (average percentages) come from 2 distinct samples, segments, of the HOA population at a 99.5% significance level.

favorable            unfavorable

combined advocate response                 8%                          79%

CAI response                                             59%                         15%

 

Now, in laymen’s terms, what does this mean and how can this wide gap in views be reconciled? First, the lauded CAI surveys do not represent the complete population of HOA members as claimed by CAI[iv], and these surveys cannot be promoted as representing reality within HOA-Land.  They are tainted!  So too, for that matter, are the Combined surveys. However, they are valid within themselves and also serve the important purpose of refuting the results of all those CAI surveys that CAI now claims to have been validated. As CAI proclaimed,

The findings objectively refute the unfounded and unsubstantiated myth that the community association model of governance is failing to serve the best interests of Americans who choose to live in common-interest communities.[v]

Not so!

The findings from the six surveys are strikingly consistent and rarely vary a standard margin error for national, demographically representative surveys.[v]

This is a meaningless statement. What does ‘rarely vary a standard margin of error’ ( the commonly seen “+/- n” footnotes to political polls) mean?  It refers to the internal consistency of the polled samples and has only meaning as being representative only if there are statistics relating to a survey sample representing all HOA members. The Combined Advocate Surveys demonstrate that the CAI surveys are not representative of all HOA members.

Call to Action!

To truly validate its surveys CAI must reject the findings of the Combined Advocate Surveys, not by hyperbole or by rhetoric, but by opening up to a bona fide study of HOA-Land by independent researchers.  And state governments must cry out for this independent study to end its lack of awareness of conditions and stress within HOA-Land.

The Truth Is Out There!

 

References

[i] Combined Advocate Surveys — Sara Benson: Chppi’s 2015 National HOA Survey; Jill Schweitzer’s HOA Industry Survey.

[ii] CAI 2016 National Homeowner Survey,

[iii] HOA Surveys Comparison.

[iv] Supra ii.

[v] Supra ii.

Finally!  The cracks in the great CAI defensive wall denying the reality that HOAs are governments are beginning to show. I welcome this enlightenment by pro-HOA proponents who are beginning to admit and to accept the reality that HOAs are private governments.  The latest in enlightenment comes from none other than a Florida attorney, Ryan Poliakoff.  Ryan finally comes clean and explains the legal meaning of “HOA” (emphasis added).

A homeowners’ association normally governs communities made of single-family homes. Despite the common phrasing, it is inaccurate to say that a person lives in an “HOA.” Instead, you would say that you live in a community governed by an HOA[1].

Congratulations Ryan!  For years on my website viewers were presented with a more explicit definition of the distinction between a government and a community.

If we are to make progress, we must distinguish the concept of a planned community, which is a real estate “package” of homes, landscaping, amenities, and rules, from that of the HOA, which is the undemocratic governing body of the planned community[2].

This is a first!  An admission from a nationally recognized pro-HOA special interest lobbyist that the HOA is really a government that regulates and controls the people within its territory – the fundamental definition of a political government. Black’s Law Dictionary[3] defines a state as,

“A state or political society is an association of human beings established for the attainment of certain ends by certain means ….What then is the difference between this and other forms of government? The difference is clearly one of function. The state must be defined by reference to such of its activities and purposes as are essential and characteristic”.

“Modern states are territorial; their governments exercise control over persons and things within their frontiers.”

And the HOA is not a democratic form of government, as all businesses are not democratic governments, and could and must be rejected and made to conform to our democratic system of government.  HOA-Land must be made part of the Union, and not a separatist state.

For those of you concerned about losing the real estate package as defined above, there are existing alternative forms of governance that are subject to the Constitution as all other forms of government.  And the package can still retain its privacy status, except it is answerable and accountable to the state.

If this is unacceptable, then you are essentially un-American, rejecting the laws of the land and our democratic system of government, plain and simple. Sorry, the free ride must go!

Notes

1.  First step in solving problems begins with defining community, Ryan Poliakoff, MyPalmBeachPost, June 12, 2016.
2. Citizens For Constitutional Local Government. See also, Are Your Best Interests Served by an HOA? (October 18, 2006).
3. Definition of ‘state’, Black’s Law Dictionary, 7^th Ed.

If Surprise, AZ — and other municipalities — seek the support from HOAs that dominate its jurisdiction[i], then the municipality must restore equal citizenship to the people of the municipality who are members of an HOA. The public policies at the state and  municipality levels, and any county or city/town leagues or associations, all support the independence of HOAs from constitutional protections and state laws.  HOA residents do not have the equal protection of the law nor due process protections, since HOAs are not subject to the 14^th Amendment as are all state entities.

If a municipality seeks assistance from HOA members as Surprise is seeking bond support, it must understand that the HOA, which is really the board, does not speak for the membership on political matters.  HOA members must be treated equally as all other citizens. There is no excuse or valid justification for this denial of equal treatment.

Be it as it may, why should Surprise be surprised that its policy of supporting islands of independent principalities —  the HOAs – produces behavior precisely consistent with its policy of separate and unequal communities within the municipality. The HOA  members probably feel that supporting tax increases for bonds issues for those other guys not in their HOA is unfair. They have their own private amenities.

This policy should be reevaluated by the Legislature, the Arizona Association of Counties, the Arizona League of Cities and Towns, and the municipalities. They should all support the following proposed statutory amendment:

HOA member Declaration of US and State citizenship 

Therefore, the members of the association, having not waived or surrendered their rights, freedoms, privileges and immunities as citizens of the United States under Section 1 of the Fourteenth Amendment, and as citizens of the state within which they reside, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state, or be amended to comply, that,

‘The association hereby waives and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.’

Maybe then a municipality may justify additional taxes on HOA members for the common good of the greater community.

References

[i] Tax hikes are tough sell in cities full of HOAs, Jeffrey Gibbs, Azcentral.com, June 7, 2016.