Tag: bill of rights

HOA Common Sense, No. 7: boards can do no wrong

HOA Boards can do no wrong, No. 7

In shocking contrast to our common sense and all that has been said about the need to protect the people from government, state legislators see no need for effective and meaningful enforcement that average people are transformed into angels when they become board members.  James Madison must be in a rage, wherever he may be, at this slap at his advice that, “If men were angels there would be no need for government.”

State legislators have said that the complaining HOA member signed a contract and is now trying to get out of it because he now thinks it’s a bad contract, and that he will not support any such legislation. Furthermore, anyone who didn’t read the contract or get a lawyer is not too smart and that he, the legislator, would have never done that.  What do you think of that attitude in light of the above papers 3 – 6?  And don’t forget that you are being held to have agreed to be treated in such a demeaning way by your elected officials.

Where are the fair and just laws argued for in paper No. 4?  They are not there!  Instead, we have special laws for special entities, the HOA, without a necessary and compelling government interest to deprive citizens of the rights and freedoms.[i]  What a travesty of our American way of life! 

You may ask, What for?  The answer is obvious: for the survival and acceptance of a defective legal scheme that seeks to impose authoritarian governments on unsuspecting people. If boards and offers are to be held accountable, who would volunteer?  Well, why not pay them a salary so accountability can be demanded?  WHAT!!!  If they are going to be held be paid and held accountable, then members have a right to demand qualified board members and not any ole body who would like to be on the board.

Wait!  Wait! I can see readers recoiling in horror.  The horror . . . the horror . . . (from the movie Apocalypse Now!).  Consequently we are told that we must accept the lunacy that all volunteers can do no wrong and if they do, well, that’s your fault for electing them!  And let’s not forget that the board has hired hands to protect them – the attorney and manager.  At your expense.  The homeowners pay for the board’s wrongful acts.  

So, why aren’t the members more involved in watching over the acts of the board?  Well, maybe it would help if the laws backed the members up with effective and practical means to enforce HOA wrongful acts; otherwise it’s just an exercise in futility.  The game is rigged in favor of these independent principalities!

But those living in HOAs must share the blame for this state of affairs. They have repeatedly failed to unite in an organized common cause to produce intelligent legislation that addresses these fundamental HOA defects.[ii]  CAI in Arizona made that clear when it told the legislature that only the stakeholders produce meaningful bills; the homeowners just raise a multitude of personal issue bills.[iii]

And so, in all practicality considering this state of affairs, the board can do no wrong.  Get used to it!

“If there is no penalty [for] disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” (Alexander Hamilton, Federalist #15)

HOA Common Sense, No. 6: Fair and just hearings

Fair and just hearings, No. 6

What is meant by “fair and just hearings”?  The HOA attorneys tell you it’s “after notice and an opportunity to be heard” as found in almost all CC&Rs and in the vast majority of state HOA laws. This simple statement is a contractual provision and law as applied to HOAs, but it is not what the US Supreme Court holds as procedures meeting the Constitution’s and the 14th Amendment’s due process requirements.  HOA members have been shortchanged!

As a private entity, HOAs are not subject to the Constitution and are not required to establish justice, which is a goal not found in any CC&Rs ‘constitution,’ but found in the Preamble to the US Constitution. Was this important fact explained to you when you bought into an HOA with its dream home?  Why not?

US Appeals Court Judge Henry Friendly in his well-regarded article, “Some Kind of Hearing,” generated a list that remains highly influential, as to both content and relative priority:[i]

1. unbiased tribunal [independent ‘judges’]

2. notice of proposed action and grounds asserted for it [document showing all the rules]

3. opportunity to present reasons why should not occur [defense of allegations]

4. right to call witnesses

5. right to know opposing evidence

6. right to have decision based exclusively on evidence presented

7. right to counsel [especially if HOA attorney is present]

8. making of record

9. availability of statement of reasons [public awareness of defense]

10. public attendance [transparency]

11. judicial review [appeal to civil court]

 

I’ve inserted annotations as applicable to the HOA version of justice.  As you can see, members are being shortchanged by HOA attorney/lobbyists who influence and dominate state legislatures, and who write and rewrite the CC&Rs and bylaws.  HOA kangaroo courts make homeowners second class citizens, and their foolish appeals to their HOA attorney go nowhere, because no one told you that he represents the board, not the members.  You know, like management vs. employees.

And since there is no legal obligation of the HOA to establish justice, providing for some form of public defender equivalent falls on deaf ears.  The HOA wins in this lopsided “playing field” since it has the money to hire attorneys to legally maneuver the system to make it costly for the homeowner to complain.  And don’t forget the public ostracizing of members who complain: they are costing you money; they are not good neighbors. Don’t forget that there’s no opportunity for the homeowner to answer in the same media as used by the HOA – the newsletter, board meetings and website.

Yet, government interference to protect your rights as citizens is violently frowned upon by HOA members.  Why?  It doesn’t make sense, doing nothing about your loss of protections.  For what?

[i] Henry J. Friendly, “Some Kind of Hearing,” 123 U. PA. L. REV. 1267 (1975).

HOA Common Sense, No.3: The Path to HOA Enlightenment

The Path to HOA Enlightenment, No. 3

I ended HOA Common Sense No. 2 with a call for the people, following their ethical and moral conscience, to lose their false views of reality in order to successfully resolve long standing, endemic HOA problems.  The authoritarian, private HOA government was not created to and has no legal obligation to protect and maintain individual rights and freedoms as does public government under our Constitution with its Bill of Rights.

This difficult task for substantial HOA legislative reforms can be accomplished by choosing the path that requires the people to 1) step outside the box created by the pro-HOA special interests and to reject dogmatic attitudes that refuse to consider opposing and dissenting arguments, and 2) that we confront and challenge the pro-HOA supporters demanding that they defend their half-truth, misleading, and false mantras with documentation and legal authority.

This path to a successful resolution of endemic HOA problems is rational and sensible.  It is up to the people to choose the America of tomorrow, that of the Founding Fathers or of the New America of HOA-Land, for their children and grandchildren. 

It’s just common sense for Americans to reject the authoritarian HOA private government, and to support our democratic system of government of 226 years.

HOAs & state legislatures: rule by the Prince or by the Constitution?

“Where ethical restraint is lacking, there can be no hope of overcoming problems.”[1]

With the banishment of God from government, our “unalienable” rights, which were held by the Founding Fathers to be superior to any rights granted by any government, have been declared null and void by the US Supreme Court. With no substitute standard being announced by the Supremes to guide the people, they are left to flounder. And we have floundered.[2]

In his commentary on Machiavelli’s The Prince,[3] William B. Allen provides Machiavelli’s view of politicians,

Once the obligation to act according to natural or devine standards is removed, the question that remains . . . is how to participate in the management of political appearances to secure their [the politicians’] own interests.[4]

For Machiavelli “the role of morals in politics is mainly to cultivate illusions . . . politics is merely appearance and morality is merely pretense.”[5] 

Understandably, it is not surprising that the Supremes have held that all legislation is presumed to be constitutional, placing the burden on the people to prove the unconstitutionality of a law.  With this legal doctrine, the Supremes, the 9 Men In Black, have declared that “the sovereign can do no wrong.”  But, that is not the fundamental basis of our system of government with its separation of powers, checks and balances, and Bill of Rights.  The Supremes just abdicated their function under the Constitution.  In its place, it has assigned the role of the Protector of the Constitution to the people, the average person. 

Consistent with this doctrine, the Arizona Legislature also presumes all statutes to be constitutional, perhaps because the Legislature provides checks on the constitutionality of a bill before it can be sent to the Governor for signing. (The Arizona Constitution also provides a check on statute constitutionality before signing by the Governor).

However, in spite of statements to the contrary found in the Arizona State Legislature guides for the public, the legislature and individual legislators have failed to protect the people against the violations of the Arizona Constitution as in the case of the unconstitutional SB1454. They have ignored their duties, obligations and rules for the proper functioning of the Legislative Council and the Rules Committee. (See HOA reforms, SB 1454 and the inner workings of the legislature).

In contrast to Machiavelli’s principles of government, Hadley Arkes reminds us that

The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators (emphasis added).[6]

He quotes US Justice Wilson’s (1798) warning that

The people in sovereign office might well perform unjustified and therefore lawless acts . . . such acts, though vested with ‘legal’ authority could not fully claim nor elicit from the people an obligation to obey.[7]

 

In regard to the HOA amendments surreptitiously placed into SB 1454, Arizona has dropped the ball.  Arizona has fallen off the pedestal.

 

References

[1] Ethics for the New Millennium, His Holiness The Dalai Lama, p. 26, Riverhead Books, 1999.

[2]God is dead, and so, too, are our unalienable rights, HOA Constitutional Government, February 5, 2008

[3] The Prince, Niccolo Machiavelli, Yale University, 1997.

[4] Id., Machiavelli and Modernity, W. B. Allen, p. 108.

[5] Id., p. 104.

[6] Supra n 3, Machiavelli and America, Hadley Arkes, p. 145.

[7] Id., p. 128.

What is this “association law” thing all about?

In the TimesDispatch internet column, “Housing”, two attorneys talk about “association law” (Mercer, Trigiani are guiding voices in homeowner association law). They are real estate attorneys. 

He [Mercer] and his business partner, Lucia Anna “Pia” Trigiani, with offices in Alexandria and Richmond, are considered the top Virginia lawyers in their field, their peers say. . . . “They are a major force in what goes on with association law, and they are equally good at what they do,” [a real estate attorney] said.

But the featured spokesperson, Trigiani, is not identified as a CAI member who received an outstanding person award this past April from CAI, the national lobbying organization for HOAs, the Community Associations Institute.

Lucia Anna “Pia” Trigiani, Esq., a principal with the Virginia-based law firm MercerTrigiani, received one of CAI’s most prestigious honors April 19 at the organization’s 2013 Annual Conference and Exposition. (Trigiani, Dyekman Among Members Honored by CAI).

What is not made clear is just what association law is?   It is not a recognized classification of law, but one promoted by the legal-academic aristocrats and CAI.  (“Community Association Law Seminar, Jan. 23–25, 2014 | Las Vegas, NV.”)  The massive Restatement of Law series consists of some 96 volumes covering 26 categories of law, but no “association law” category.  In fact, laws pertaining to HOAs and covenants/servitudes, the legal basis for HOA authority, can be found in the Property: Servitudes series.

From my research into HOAs reading law encyclopedias, treatises, journals, court cases, legislation, articles and books — I’m not claiming to be an expert, but well read — association law appears to be a conglomeration of constitutional, property, contract, corporation and tort law.  These laws are cherry-picked to support the legitimacy and validity of the Declaration of Covenants, Conditions and Restrictions (CC&Rs) that is the fundamental basis of HOA legal authority.  Whatever aspect of each of these laws that serves to support HOAs is incorporated into association law. Where there are conflicts with laws or contrary laws they are ignored, or association law is declared superior, or first modified and then incorporated into association law. 

Attorneys like to promote association law as sui generis, or a unique thing in a class of its own not subject to other laws.  This new thing, this association law, is an attempt to establish as legitimate and binding a new set of laws that conflict with and repudiate the Constitution.  Laws that distinguish and repudiate the fundamental principles of our system of government and principles of justice, derived from the organic law of this country – the US Constitution, its Bill of Rights, and the Declaration of Independence.  And for obvious reasons — for domination, power and control.

In his seminal book, Privatopia: Homeowners Associations and the Rise of Residential Private Government, Even McKenzie wrote in 1994,

HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments. . . . The balance of power between the individual and the private government is reversed in HOAs. … The property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander.

And this is the purpose in establishing “association law” — to avoid constitutional protections, to deprive people of their life, liberty, or property  without due process of law, and  to deny homeowners of the equal protection of  the laws that apply to all public bodies.

 

See  The questionable role of HOA attorneys