Earlier this month the people voted and chose the direction that this country should take. Today, YOU can choose the direction that you want HOA private governments to take by signing the We the People petition.
We are asking Washington to declare that the people in HOAs are still US citizens with all the rights, freedoms, privileges and immunities of citizens. Or, by not signing this petition you are choosing a continuance of another 48 years of “same ol’ same ol.’”
It is a well documented fact that state legislatures have not and do not support your rights and freedoms once you buy into an HOA. It is a well documented fact that state legislatures permit HOA de facto governments to deny and strip you of your rights. Their justifications fail to meet accepted US Supreme Court tests of the surrender of your rights and freedoms.
Only the Federal government can act to put things right. Our petition is a simple request that HOAs be subject to the US and state constitutions like all other governing bodies – towns, villages, cities, special districts, etc. This is not a democrat/republican or conservative/liberal issue, but a legitimate argument to uphold the people’s rights and freedoms as set forth in the US Constitution, the Declaration of Independence, and the Bill of Rights.
Only your voice can make things happen! Speak up today! Your submitted petition is needed to help set things back on course as the Founding Fathers intended. Your submitted petition is needed to create a dialog between the people and their elected representatives in Washington.
Submit your petition at http://wh.gov/IlTM (Expired Dec. 21, 2012 with a pitiful 76 petitions).
As a long-time advocate for constitutional local government I am greatly disturbed by the existence of local governments that exist and function every day throughout America, but are not subject to the US Constitution. They are known as homeowners associations. Special interests have effectively campaigned not to have HOAs viewed as a second form of political government, but this effort is misleading and self-serving.
HOAs do provide a beneficial service to the community, but at the cost on an unknowing surrender and waiver of basic homeowner rights and protections – the misleading aspect of the statements made by pro-HOA special interests. However, the benefits of HOAs can be obtained within our constitutional system of government, which provides protections that are absent in the imposed profit-seeking developer CC&Rs contracts.
I ask each of you to consider the following question:
Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people that is not compatible with our American system of government?
The answer to this question by state legislatures has been, Yes, thereby permitting HOA secession and establishing the HOA as an independent principality.
As stated in the We the People petition to the White House, state legislatures have failed to uphold the Constitution and protect homeowner private property rights, and their privileges and immunities under the Constitution. In view of this default, only the Federal government can provide this protection. It is a necessary and legitimate function of the Federal government to protect your rights and freedoms without overburdening contractual rights.
Let Washington know that we arestill citizens of this country; we are still Americans!!
Please read and sign our We the People petition that can be found at: Petition. Because of the limitations on the We the People website, you can read rhe complete petition at: FULL PETITION
(Expired Dec. 21, 2012 with a pitiful 76 petitions).
Marshall Will Kane (left) throws his badge to the ground with disdain after defending Hadleyville, where the good people of Hadleyville stood by and did nothing. (The 1952 movie, High Noon).
Some 60 years after the events in Hadleyville, thousands of HOAs follow in the footsteps of the Hadleyville townspeople and do nothing to rid their HOA of lawless rogue boards of directors.
How did this come to be? Could it be like the townspeople, they FEAR reprisals from a lawless, vindictive and punitive board? Could it be the indoctrination into obeying authority figures and the acceptance of imposed roles to conform to the group’s rules, right or wrong (See, “Why do people harm others in HOAs?”)?
Could it be a malaise, a general apathy as described in The HOA apathy affliction: a political dynamic and The role of the HOA apathy affliction in circumventing public policy on how the HOA lawyers work apathy in their favor? While these acts describe a particular aspect of HOA oppression, in total, it must be understood that the pro-HOA laws (no punishment for board violations) and the unconscionable adhesion CC&Rs contract favoring the HOA contribute to the failure to develop a bona fide community spirit and a community centered civic virtue.
The development of a healthy community spirit and civic virtue are essential to eradicating apathy. Virtue can be defined simple as “conformity to a standard of right,” civic virtue as “a commitment to democratic principles and values,” and community spirit as “an involvement in and concern for one’s local community.”
CAI defines community spirit as having “pride in a community” and offers steps to produce this emotional identification: getting involved in activities outside the HOA, holding entertainment party and events, and becoming active in the community (Best Practices, “Harmony and Spirit”). No mention at all about civic virtue as a necessary part of creating a healthy community, and that a concern for the community must address issues of civic virtue.
How can civic virtue and a healthy community spirit develop when the homeowner is placed in an environment and culture that opposes any such proactive activities? As investigative reporter Ward Lucas points out in his new book, Neighbors At War!
Welcome to the weird world of HOAs . . . where life, liberty and property are in the hands of your neighbors, neighbors who are unconstrained by law . . . . That’s right! These boards for the most part are not obligated to protect or respect any human or civil rights. . . . The very structure of Homeowners Associations gives them the ability to exert bully power on a completely arbitrary basis.
The apathy, the lack of HOA civic virtue, and the lack of a genuine, healthy community spirit that allow lawless rogue boards to violate the law and governing documents is the result of the above mentioned HOA legal structure and dynamic forces. The legal structure of the HOA is secessionist, rejecting the principles and values of the US Constitution and Declaration of Independence for a fascist contractual government focused on maintaining property values. Where, as in fascism, individual rights, freedoms, and privileges and immunities guaranteed to all citizens do not matter.
This review is from: Neighbors At War! The Creepy Case Against Your Homeowners Association (Paperback)
Neighbors at War! is a refreshing description of what living in an HOA (homeowners association, property owners association, common-interest community or condo association) that the average person can understand. It is not another legal treatise, or academic journal or book, but the writing of an experienced and award winning investigative reporter.
It is a long needed book for prospective buyers of HOA controlled homes or those already living in an HOA. All those state mandated documents do not tell it all, as state legislators are pro-HOA and accept the denials of homeowner rights contained in HOA adhesion contracts.
Ward Lucas ranges far and wide, from questions of constitutionality and denials of bill of rights protections to more down-to-earth issues of HOA procedures and operations. Foreclosure, no fair elections, and kangaroo hearings on violations are examples of the cases and issues that are discussed in easy to understand terms.
I’ve been repeatedly told by legislators that complaining homeowners are trying to get out of a contract, should have read the CC&Rs, and should have gotten a lawyer. And not a word about misrepresentation and fraud.
Do not fall into the trap of Buyer Beware! Read this excellent book and discover what you are not being told by the special interest national lobbying organization formed to protect, not your rights, but the HOA status quo. Neighbors at War! is a must read for informed homeowners and state legislators
As a result of a conflict over bees and whether local ordinances or HOA CC&Rs governing beekeeping prevail, the Tennessee Attorney General is being asked his opinion on HOAs as public entities. Rep. Glen Casada has sought a clarification from Tennessee Attorney General Robert Cooper “for an opinion on whether or not the HOA is considered a political subdivision of the state.” (The AG was appointed by the TN Supreme Court, and is an officer of the court and not the Executive branch).
How shall the AG decide? Take a very narrow view and simply declare that the HOA is a nonprofit corporation under corporation laws and not a municipal corporation; therefore it not a state entity. If so, how does he address the fact that “if it looks like a duck, quacks like a duck, and walks like a duck, it is a duck?” “A rose by any other name is a rose.” A tax by any other name, assessments, is a tax. A law by any other name, regulations or covenants, is a law. In fact, British municipal law equates the term law with by-law. “3. British . an ordinance of a municipality or community.”
Let us assume that the AG takes a firm stand and enters into the foray. The safest approach is to turn to the ancient public functions test of 1946 with respect to a company town and free speech. His decision would deny that the HOA is a public entity, probably, since the HOA doesn’t meet the public functions test.
This view has always disturbed me when I examine the state’s municipality laws on incorporation of towns and villages. They ain’t got no such tests, yet they are declared public entities if they declare their allegiance to the Constitution and are approved by the state. I guess it’s OK to use double standards when it comes to HOA governments.
Are there any other criteria that bear on whether or not an entity is a public entity, or that it is a state actor acting as if it were indeed a state entity? The law is rather extensive on state actors and state action. In today’s environment with the attitude of “no government interference,” applying state actor designations to HOAs will be a difficult task since it would extend the reaches of “big government.” But, when dogma prevails over facts we must fight for “truth, justice and the American way.”
US Supreme Court holding in TN state actor case
The US Supreme Court has set several criteria for state actions and state actors, among them: a “close nexus,” a “symbiotic” relationship, “state’s exercise of coercive power”, “entwined with governmental policies”, and “significant encouragement, either overt or covert.” They are discussed, in of all cases, in Brentwood v. Tennessee Secondary Schools, 531 U.S. 288 (2001).
I hope Attorney General Cooper will uphold the US and Tennessee constitutions, knowing full well that even homeowners living in HOAs are US citizens and citizens of the State of Tennessee, with full rights, privileges and immunities.
HOA Constitutional Government 