Tag: bill of rights

The CAI ‘Philosopher-kings’ are best to rule HOAs?

 Behold! 

This time of year when state legislatures are in session and advocates are seeking to restore lost rights and freedoms, across the land we hear the voices of the self-anointed HOA “philosopher-kings”  from CAI. These legal-academic aristocrats fervently believe that their superior knowledge, training and understanding are best suited to govern  HOA-Land.  That All — the people, the HOA boards, the agencies, the courts and the legislatures — should behold and obey their voices of wisdom.  

But the truth is, is that anyone attending a CAI conference, seminar, class, lecture or program, or who reads any of its printed materials, or hears its lobbyist speak beofre the legislature, will not encounter any serious discussion of the constitutional issues as set forth in the “Truth in HOAs” Disclosure Agreement. Rather, he will be treated to one of CAI’s “educational”, “indoctrination” or, as I call them, “recycling” programs, designed to teach attendees what is necessary to live happily under the authoritarian HOA regime. And not subject themselves emotional stress or financial loss.

While CAI maintains that it teaches the law as it is, it fails to educate attendees as to the negative side of HOA living — the loss of rights, privileges and immunities as a citizen of the US and his state. Nor does CAI inform the attendees as to its role in shaping HOA laws as a result of its intense lobbying efforts. CAI, therefore, is guilty of misrepresntation by half-truths. If those who are in the know do not object, what can be expected of those seeking to know, the attendees? And how can they know if they are not so educated and no warning or advisories notices are published by state agencies? (This was a defense by the common German citizens in response to why nothing was done to oppose the Nazis). This is not the conduct of the philosopher-king who believes that the truth was necessary for good government and good rulers.

 

 

Plato introduced the concept of “philosopher-king” in Book VI of his Republic where he discussed what type of government is best, and who is best to rule the people.  This concept placed high value on  learned persons who pursue true knowledge, and therefore those who know best should rule best.  The philosopher-king served as a basis for modern day utopian societies of technocrats running society; such as communism and the Community Associations Institute (CAI) that was initially created with all the “stakeholders” as part of the ruling body.  The stakeholders represented the various industries of interest participating in the governing of this hopefully altruistic organization. CAI was to resolve HOA problems and to lead the people to paradise on earth (my sarcasm).  (See Chapter 5 of Privatopia, , and Community Associations by Donald Stabile (2000), a CAI & ULI funded book).

FL supreme court upholds private contract over constitution

 

This decision sounds really exciting, but . . . . . Read the relevant part of the Florida Supreme Court opinion (emphasis added):

 

The Grand’s declaration, which was filed in 1986, adopts the terms of “the Condominium Act of the State of Florida (Florida Statute 718, et seq.) in effect as of the date of recording this Declaration” and does not contain “as amended from time to time” language subjecting it to future statutory changes to the Condominium Act. See Angora Enters., Inc. v. Condo. Ass’n of Lakeside Vill., 796 F.2d 384, 386 (11th Cir. 1986) (noting that express agreement by parties in the declaration of condominium regarding application of future statutes to the association may determine whether parties have a “constitutional protection against future amendments to the Florida Condominium Act which, absent such an agreement, might arguably impair a party’s contract obligation”).   Cohn v. The Grand Condo Assn., SC10-430, (Fla.  3/31/2011).

 

In essence, the court is saying, as I’ve always opposed, that the people have the right to determine via a private contract whether the supreme law of the land, and of the state, applies to them.  And by constructive notice alone, without explicit consent, the courts hold that you surrendered your rights! This is wrong!  This “opt out” is ridiculous!  And it is an essential defect in the HOA/condo legal scheme – private parties can draft and file a document, especially a declaration, that exempts them from the application of the Constitution and laws protecting the people. So, why bother to have a constitution anyway?

 

Another advance for The New America of HOA-Lands. 

Proposed “consent to be governed” statute, the “Truth in HOAs” bill

No provision of any contract or any declaration of covenants, conditions, and restrictions . . . is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties . . . . Any representation or statement offered as clear and convincing evidence . . . shall include a signed statement containing the following, beginning with “I understand that I can ask that the following be read and explained to my satisfaction.“

So reads an excerpt from my proposed “Truth in HOAs” statute that should be made law in each and every state. That is, if indeed the legislature stands by the Declaration of Independence and the US Constitution, which we are hearing so much about in the media nowadays. We know that CAI is opposed to such constitutional protections for members in HOAs, as the record shows in their NJ Twin Rivers appellate amicus brief. But, it is time for the legislators to “man up” and protect the people from harm inflicted by special interest groups. There is no necessary and compelling need for legislatures to deny the homeowner his rights, freedoms, privileges and immunities as a citizen of his state and of this country.

Read the complete proposed Truth in HOAs statute.

See also Public policy protects HOA principalities,

Calif. opinion: CC&Rs and surrender of constitutional rights

co-opting the HOA “homeowners bill of rights”

 

In 2008 the 1994 UCIOA (Uniform Common Interest Ownership Act) was modified to accommodate the outcry from homeowner rights advocates.  This shortened version is known as the Uniform Common Interest Ownership Bill of Rights Act (UCIOBORA), and is a political maneuver to co-opt the real meaning and intent of a “bill of rights.”  Here’s an explanatory excerpt from UCIOBORA:

 

Further, ULC [Uniform Law Commissioners] acknowledges that it will often not be feasible to enact UCIOA 3.0, in part because of the difficulty drafters in the States may encounter in integrating any new adoption of the existing Uniform Acts with the laws that may already exist in a particular state.  For these reasons, ULC  promulgated a free-standing and relatively short Uniform Act that addresses all of the ‘association versus unit owner’ issues touched on during the drafting of the 2008 UCIOA amendments. The free-standing Act is known as the Uniform Common Interest Owners Bill Of Rights Act or “UCIOBORA”. While not all sections of UCIOBORA are identical to UCIOA 3.0, the concepts underlying each Act are the same, and are adjusted simply to recognize the simplified nature of UCIOBORA.
 
 
In short, UCIOA wasn’t selling.  It seems that UCIOBORA is the sad result of the political motives to get UCIOA selling again. It’s a document that does not at all read like the US Bill of Rights, or any state constitution’s Declaration of Rights (state constitution equivalent of the Bill of Rights), or even the Declaration of the Rights of Man and Citizen (France, 1793).  Far from it.  Rather it reads like your current CC&Rs and UCIOA with a number of concessions to reality.  However, it lacks substantive protections of homeowner rights, such as: a fair and just due process by means of an independent tribunal; fair elections procedures with equal and fair access to membership lists, and equal opportunity appearances in the HOA newsletter/website; restrictions on the right to foreclose, since the HOA is not in the same position as a lender who had advanced hard cash; and enforcement by means of penalties against board violations of the governing documents, otherwise all such laws are just recommendations dependent on the goodwill of the affected persons.
 
A homeowners bill of rights is necessary because the Constitution with its Bill of Rights amendments does not apply to private HOA governments.  HOA governments operate outside the Constitution, which is greatly desired and defended by HOA supporters as they would not be able to act in ways that a civil government cannot act.  A statement in a declaration that says that the HOA is subject to the Constitution is meaningless, since the Constitution does not apply to private entities.  What is necessary is a statement that the HOA acknowledges the Constitution as the supreme law of the land and irrevocably agrees to be subject to it  as if it were indeed a government entity.
 
 
Short History
In 1997, Elizabeth McMahon of AHRC filed a Homeowners Bill of Rights with the California Law Review Commission looking into revising California’s HOA statutes.  In 2000, George K. Staropoli submitted a statement to the Arizona Interim HOA Committee, Homeowner’s Declaration of Independence from the HOA system of government.  In 2006, AARP produced a public policy statement, A Bill of Rights for Homeowners in Associations, written by Houston attorney David Kahne.  In 2006 the legal-academic aristocrats (lawyers for the real estate interests) at a Texas senate hearing proposed a Texas Uniform Planned Community Act (TUPCA).  Responding to Texas homeowner rights advocates, the committee was told that UCIOA (the model act for TUPCA) was being modified to include a bill of rights section.  In 2008, George K. Staropoli informed the California Law Review Commission of a proper Members Bill of Rights section to the Davis-Stirling Act (This section was later  dropped from the revision).
 
 

AZ bill reasserts state supremacy over HOAs

For several years at the Arizona Legislature bills with a very limited restatement, or reminder, that civil government controls public streets were proposed.  Each year they were defeated by the special interests —  read that to include the HOA boards acting as representatives not of the homeowners, but of the legal fictitious person, the HOA.

 
This year we see Arizona’s CAI LAC co-chair Scott Carpenter writing in his Arizona Legislative Session blog – surrounded by his firm’s advertising, links and buttons to pay fines, but speaking for himself, says he – about intrusions into the government of the independent HOA principalities.  He objects to Sen. Harper’s HB 2140, a bill to prohibit HOAs from denying homeowners their second amendment rights to carry arms, or more correctly, from prohibiting HOA interference with all those rights protected under Article II of the Arizona Constitution.  Article II is Arizona’s Declaration of Rights, the state’s version of the Bill of Rights, which all states have in one form or another.
 
Carpenter’s law firm had also fought to have the statutes providing for an independent tribunal to hear HOA disputes by DFBLS/OAH, which provided due process protections with fair and just hearings, declared in violation of the Arizona Constitution.  He now stands in opposition to and objects to the recourse to the Arizona Constitution to protect all the rights of homeowners.  Apparently he sees the Constitution as working solely on behalf of the HOA principality, but not for the homeowner— as it secedes from our constitution and from our system of democratic governance.  Welcome to the New America of HOA-Lands.
 
Carpenter continues his plunge into the secession from local government by HOAs, echoing as Robert H. Nelson discussed in Chapter 20, “Neighborhood Secession”, Private Neighborhoods: the transformation of local government (Urban Inst. Press 2005), while seeking the protection of the Arizona courts to enforce the HOA “constitution.”   (Interestingly, Private Neighborhoods references this writer’s 2000 statement to the Arizona Legislature on a Homeowners Bill of Rights, p. 102).  Carpenter cannot have it both ways!  He cannot deny constitutional protections for homeowners and then seek those protections for the HOA!   Such a position would be a repudiation of what this country stands for, and his oath to support the Constitution that he took when he was admitted to the State Bar:  “The Oath of Admission to the Bar:  I, (state your name), do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Arizona;”
  
What a sad state this country has come to when the legitimate political government of the state must reassert itself as the supreme law of the land.
 
Congratulations to Sen. Harper for this long awaited bill in support of the people.