Tag: constitution

HOA political dynamics: totalitarian democracy

HOA political dynamics: authoritarianism & totalitarian democracy

First, allow me to clarify some important concepts and definitions that I have employed to help in understanding my positions and views.

  1. The term “HOA” is commonly used in 2 different aspects. While commonly used to refer to the alleged community, in reality the “community” is a real estate “package” of homes, landscaping, amenities, and rules.
  2. “HOA” more aptly applies to the association itself, which is the de facto – in fact – political governing body of the subdivision or real estate “package.”
  3. “Government,” meaning political government, is defined in its general sense as “the person or group that controls and regulates the people within a territory.” Since your subdivision is a territory, that makes the HOA a truly political government.
  4. “Private government” is a de facto government as defined above not incorporated under municipal statutes but under nonprofit corporation statutes. As such, it is a functioning government unrecognized by the state as Cuba had been for years.
  5. “Quasi-government” simply means for all intents and purposes having all the attributes of a municipal government, except the names have been changed to mislead the innocent public.
  6. “HOA-Land” is my descriptive term for “the 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.”
  7. “Structured tribalism.” Tribalism is a term currently in vogue to describe divisiveness in America. “Structured tribalism” extends that view to describe the intentionally planned policy for the acceptance and control of HOA-Land.[1] It views the fragmented HOA-Land as distinct villages and clans.

While the CC&Rs and declarations contain abundant boiler plate, each is a separate legal agreement and as such  the HOA can be viewed as a village.  The conglomeration of master planned communities or HOAs developed by the same developer can be seen as a clan.  All stemming from the HOA “bible,” the 1964 Homes Association Handbook.[2]

In an earlier editorial on civic responsibility,[3] I questioned the allegiance, the loyalty, and the obligations of HOA members.  Was it to the US Constitution or to the HOA “constitution,” the governing documents?  I answered that it appeared to be the HOA first and foremost – secessionist — creating division within the country.

This was followed up by the editorials[4] where I examined the attitudes, beliefs, and values of the HOA members themselves.  I focused on the aspect of long-term indoctrination by the HOA School of Public Enlightenment and Propaganda, my categorization. The question yet to be addressed was: What role did the members play themselves in terms of a predisposition to accept authoritarian, private governance?

By serendipity, or by destiny, I just received an email discussing authoritarianism and totalitarian democracy.[5] It argued that Americans were accepting authoritarian control, which seemed  to be a cause for the behavior of cult-like, dogmatic member acceptance of the HOA board’s (BOD) actions and attitudes.  It seems that the more predisposed to authoritarian control the more the member acted as a diehard, dogmatic, true-believer in the BOD.

“There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.

“These “authoritarian followers,” as social science labels them, are also highly ethnocentric, thus frequently racist, nationalistic, deeply partisan, and threatened by “the other.” . . . Other testing shows these people are also highly defensive.”

The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law.[6] The authoritarian nature of HOA-Land is masked by a thorough indoctrination[7] that the real estate subdivision is a democratic community (although the HOA is not a municipal entity but a private nonprofit association)  because the members are allowed to vote, as meaningless as it is.

But the HOA is truly a totalitarian democracy.  To paraphrase the founder of fascism, Benito Mussolini, “All within the HOA, nothing outside the HOA, nothing against the HOA.”   The marketing and promotion of the HOA model of governance has been conducted in a very smooth manner: no negatives, “carefree living,” playing to the emotions and desires of the members, misleading statements to induce buying, and empty promises of “maintaining property values, ”etc.

Here’s are some of J. L. Talmon’s views of totalitarian democracy as found on Wikipedia (my emphasis):

“A totalitarian democratic state is said to maximize its control over the lives of its citizens by using the dual rationale of general will (i.e., “public good”) and majority rule. An argument can be made that in some circumstances it is actually the political, economic, and military élite who interpret the general will to suit their own interests.

“A totalitarian democracy . . . retains full power of . . .  the right of control over everything and everyone. Maintenance of such power, in the absence of full support of the citizenry, requires the forceful suppression of any dissenting element except what the government purposely permits or organizes

“It is [the member’s] duty and responsibility to aid his compatriots in realizing [this right of control]. Moreover, any public or private activities that do not forward this goal have no useful purpose. Citizens of a totalitarian democratic state, even when aware of their true powerlessness, may support their government.” 

Getting back to HOA-Land, it becomes disturbing that the application of authoritarianism and totalitarian democracy philosophy seems to fit quite well. Too well at that!  But these views of HOA-Land are a valuable enlightenment because it takes HOA-Land out of the hands of the propagandists, out of the shadows, out of the darkness of Plato’s cave.[8]  It reveals reality.

 

References

[1] “In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors,”  CAI manifesto: CAI’s plan for HOA-Land in America, 2016.

[2] See my 2006,  Analysis of The Homes Association Handbook.

[3] Civic responsibility vs. HOA member responsibility.

[4] HOA social dynamics.

[5] Verdict” email from Justia.

[6] “Authoritarian” can be defined as “a form of government characterized by strong central power and limited political freedoms. Individual freedoms are subordinate to the state and there is no constitutional accountability and rule of law under an authoritarian regime.” Wikipedia.

[7] Supra n. 2.

[8] “In the Allegory of the Cave, Plato distinguishes between people who mistake sensory knowledge for the truth and people who really do see the truth.” (See Philosophyzer).

Political free speech both without and within the HOA

I recently came across a post by a Massachusetts law firm , MEEB, that basically summarized my arguments and positions on unconstitutional HOA governments.  In particular, alleged waivers of constitutional rights and the prohibition against private contractual government  HOAs from restricting political public speech.  That applies to both in the public domain and within the HOA community domain.

In its 2012 post, “Court Decisions May Make it Harder to Restrict Free Speech Rights,” decisions in 3 court cases (VT and MA) are reviewed. In essence, these decisions challenge “an assumption long held and widely recognized by courts in many jurisdictions that the freedom of speech guaranteed in the U.S. Constitutions does not apply in condominium communities.”  The reason offered, as I’ve mentioned many times, “citizens, a community association is not a governmental entity, so its rules are not subject to the same strict constitutional tests.

In contrast to Twin Rivers,  in Mazdabrook “the court noted [political speech] ‘lies at the core’ of our constitutional free speech protections.  Political signs advancing a resident’s candidacy are not by their nature incompatible with a private development. They do not conflict with the purpose of the development.”  And the court concluded “that the sign policy in question violates the free speech clause of the State Constitution.”

 In regard to the alleged waiver of fundamental rights (my emphasis),

The New Jersey court expressed serious concerns about whether and how condominium owners can  voluntarily waive their constitutional rights. Such waivers, the court said, “must be knowing, intelligent, and voluntary…. [and] at the very least, [they] must be clear.  Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”

 Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”

In the Preu (MA) decision, the court addressed state actions by the HOA,

The court found that a law suit filed to enforce a community association’s rights under the state condominium statute constituted a “state action” that could subject association regulations to a constitutional test.

 The constitutional test would require strict scrutiny, which requires a necessary and compelling reason to restrict fundamental rights. Lesser loss of rights, say under state laws, would be subject to a lessor test, but more than the broader “a government’s general interest” that can easily be extended beyond justifiable logic.

In addition to the above rulings, California’s SB 1265 that states the HOA is a quasi-government faces a test in the legislature tomorrow. Let’s hope it passes.  The sponsor, Senator Wieckowski,  also managed to have SB 407 passed last year that broader prohibits restrictions on free speech regarding meeting rooms, assemblies, use of common areas, etc.

“It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.” (New Civ. Code 4515(a).

Now members can even make use of the ‘house organ,’ the monthly online or hardcopy communication provided to the membership for equal access to the membership for campaigning or publicizing opposing views.

The Two Americas: Constitutional America and HOA-Land

On this Memorial Day, May 30, 2016, America is fighting battles in a number of countries where our sons and daughter and our brothers and sisters have paid the ultimate price defending the United States of America, and the democratic values and beliefs of justice and equality for which it stands.

Yet, we have those in America firmly believing that the Constitution protects free speech, but not when private contracts are involved. And they support private agreements called Declaration of Covenants, Conditions and Restrictions (CC&Rs) that cross over the line between purely property restrictions to establishing unregulated and authoritarian private governments. Florida attorney Ryan Poliakoff (brother of the late CAI activist attorney Gary Poliakoff) is one of them. These HOAs (an all-inclusive term) operate outside our constitutional system of government.

In his May 28th column on Florida Today, he asks and answers the title question, “Did you sign away your free speech with HOA?”[1]  with a firm YES.   Why and for what system of government are our troops fighting and dying for?  For the America of our Founding Fathers or for the misguided special interests who have a financial interest in HOA-Land, and who act and function as an oppressive oligarchy. (It is estimated that 20% – 23% of Americans live under HOA private governments). In our case, it means rule by the few special interests who lobby nationwide for pro-HOA legislation to protect the status quo.

I’m shocked at Mr. Poliakoff’s biased and simplified explanation and justification for HOA private governments; after all, he is a lawyer and dares speak of The Bill of Rights. He writes,

Private entities have no obligation to respect your right to say whatever you want, no matter how offensive it may be. . . . So if the rights and obligations of a mandatory membership community are contractual, and not municipal, shouldn’t they be allowed to restrict speech?

The most blatant misrepresentation of the facts occurs when he argues (emphasis added),

Personally, I agree with the majority position. I see no reason that persons who voluntarily bind themselves by, knowingly, buying property subject to restrictions should not be bound by those restrictions (unless the state passes laws that expressly limit the association’s power, such as the condominium laws that protect owners’ right to assemble, or the federal laws that guarantee every person the right to fly an American flag.)

Otherwise, I view deed-restricted communities as guided and governed by contracts, and I believe they should be treated, generally, the same as any private contract between individuals”.

I vehemently object to these misleading statements by an attorney!  Apparently he has failed to read, or refuses to rebut, arguments that I raise with respect to 1) alleged agreement to a contract,[2] 2) HOAs as de facto governments hiding behind the privacy of the questionable CC&Rs contract,[3] and 3) the application of US Supreme Court criteria for a bona fide surrender/waiver of constitutional rights, including due process and the equal protection of the laws, which the HOA legal scheme fails miserably.

Furthermore, he should well know that the alleged contract is not between individuals or other HOA members, but between the HOA and the individual owner. Yet, he admits, by implication, that all HOA reform legislation is an attempt to restore lost rights, rights that belong to all Americans.

Mr. Poliakoff also informs his readers that he co-authored the 2009 book, New Neighborhoods[4] that contains the very same attitude and view towards independent HOA principalities as professed in this article.  In my Amazon book review I wrote (emphasis added),

Ellen Hirsch de Haan, former CAI president, acknowledges that the biggest problem for the successful operations of these associations “is the lack of education among the consumers who are buying homes and units . . . . And the authors inform their readers that, “These neighborhoods could not operate without . . . the owners, who give up certain traditional homeowner rights for the good of the community.” “This is good”.

“The Poliakoff’s continue, informing their readers that “out of anarchy came utopia“, and quote an appellate court dicta that “each owner must give up a certain degree of freedom of choice which he might otherwise enjoy living in a separate, privately owned property.” The authors define the purpose of this book as, explaining “the workings of these communities — these New Neighborhoods — . . . and to let purchasers know just what they are getting into.”

I believe that Mr. Polikoff has failed miserably to fully educate the legislators, the media and the home buyers in both his book and in his recent article, both of which present the special interest “party line” and not the facts, the whole facts, and nothing but the facts.

This is not new or unique to Mr. Poliakoff.  CAI has recently released a series of white papers, which I collectively refer to as the CAI Manifesto.[5]    Kelly Richardson, national CAI Trustee and Realtor wrote about socialistic housing and submitting to the will of the community because, allegedly, that buyers had openly agreed to the surrender of their rights.

That’s the root of so many of the HOA horror stories we’ve all heard, as owners normally do not realize that their submission to the will of their new community is accomplished by the automatic application of covenants running with the residence. . . . The most caustic critics of HOAs in general are actually opposed to the concept of joint ownership. This is a completely unrealistic position . . .[6]

 

 

The positions taken in support of HOA-Land, as evidenced above, constitute a political movement — as any other recognized movement — that consists of separate and disparate collection of private governments not subject to the constitution because of a “verboten,” hands-off attitude, and have created 2 Americas.   The divide is just a  dangerous as a country divided over political philosophy as witnessed in our current political campaign.  It must not be allowed to continue regardless of what party or person will sit in the White House.

References

[1] Did you sign away your free speech with HOA, FloridaToday (USA Today), Ryan Poliakoff , May 28, 2016.

[2] Consent to be governed, No. 4 of HOA Common Sense: rejecting private government.

[3] HOA Governments in fact, No. 9, Id. See also, CC&Rs are a devise for de facto HOA governments to escape constitutional government.

[4] New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.

[5]  CAI manifesto: CAI’s plan for HOA-Land in America;  See also, Deborah Goonan’s  critique in “HOA laws and Free Speech, Right to Know”.

[6] Realtor magazine publishes HOA socialism by CAI Trustee, quoting A Note of Caution About HOAs, RealtorMag, Official Magazine of the National Association of Realtors, February 2015.

AZ SB 1088 is an unconstitutional and selective impairment of a contract bill

Arizona’s SB 1088 bill seeks to invalidate CC&Rs that require approval by a homeowner to allow any visitor access to the homeowner.  It specifically deals with — and is only meaningful with respect to gated communities which are gated for a very good reason — not hindering process servers access to a homeowner defendant.  It is punitive with a $250 “civil penalty” for anyone violating this law.

Background 

Under our laws and judicial system a plaintiff must service notice of a lawsuit upon a defendant as required by the Constitution.[1]  It is well known that there are people who act to avoid being served notice, which stops any lawsuit from moving forward. However, the law does allow for posting the summons notice to the public notices page of a newspaper in the event the defendant cannot be personally contacted.[2]

Impairing the obligation of contracts

The proponents’ argument would be generally along the lines that “due process under the law” triumphs over any contract infringement violation as a matter of public policy and for the general good of the people. An HOA covenant cannot hinder constitutional due process of law and the equal application of the law to a person, not necessarily an HOA, who is suing a defendant in such an HOA.  It’s not fair they would cry, referring to the greater good served outside the HOA.

But, the bill seems to be unnecessary as there are other means to satisfy civil procedure process servers.  It would also not pass judicial scrutiny[3] required to deny constitutional rights under contract infringement.  The bill seems to be sponsored as a request from a constituent facing some problem that lacks merit, considering the alternative methods available for service notice by process servers.

Selective enforcement of the law

It is long held doctrine that a government cannot pick and choose what laws to enforce or to ignore, and still be seen as a legitimate government.  The entirety of the covenants in a declaration of CC&Rs — allegedly constituting the voice of the people in a private contract to not be bound by the Constitution and the laws of the land — contains many, many covenants that violate the protected rights of the people.

Yet the state stands idly by and does nothing to end these private contractual violations of the constitution’s requirement for the equal protection of the law.  The CC&Rs are a mockery of due process protections, of fair elections, of eminent domain protections, of cruel and unusual punishment by foreclosure rights, of contract law misrepresentation and full disclosure violations, of the failure to provide civil penalties against HOA violations of the law, etc.

They are either ignored or have the “blessings” of the legislature as a result of laws that coerce compliance with the HOA, cooperate with the HOA, or closely interact with the day-to-day operations of the HOA. Any of which would make the HOA a state actor subject to the Constitution.

SB 1088 is a selective impairment of contract obligations while other infringements of the laws are allowed to stand. Adopting this bill would be a mockery of the law.

 

References

[1] 14th Amendment, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.”

[2] Ariz. R. Civ. P., 4.1(n). “Where the person being served . . . has avoided service of process . . . then service may be by publication  . . . . “ Also, Rule 4.1(m) allows for “alternative or substituted service.”

[3] Judicial scrutiny relating to constitutional rights requires a compelling and necessary government interest, not a general government interest, to deny protected rights.  See, in general, Arizona’s HB 2382 is an unconstitutional violation of eminent domain law.

To be or not to be a mini or quasi government? Hyatt said ‘yes’

The controversy over whether or not HOAs are mini-governments or quasi-governments needs to be fully understood.  While I have written extensively on this topic,[1] allow me to take another peek into the controversy.

As an eye opener to many, I have extensively quoted Wayne Hyatt’s[2] 1976 statement on HOAs as mini-governments, as cited in the 1983 California case, Cohen v. Kite Hill.[3]  (My emphasis).

 

In a thoughtful article[4] . . . Hyatt and Rhoads note the increasingly “quasi-governmental” nature of the responsibilities of such associations: “The other essential role directly relates to the association’s regulatory powers; and upon analysis of the association’s functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government. As a ‘mini-government,‘ the association provides to its members, in almost every case, utility services, road maintenance, street and common area lighting, and refuse removal. In many cases, it also provides security services and various forms of communication within the community. There is, moreover, a clear analogy to the municipal police and public safety functions. All of these functions are financed through assessments or taxes levied upon the members of the community, with powers vested in the board of directors, council of co-owners, board of managers, or other similar body clearly analogous to the governing body of a municipality. Terminology varies from region to region; however, the duties and responsibilities remain the same.”

“Because each owner automatically becomes a member of the association upon taking title … the association has the power, and in many cases the obligation, to exert tremendous influence on the bundle of rights normally enjoyed as a concomitant part of fee simple ownership of property.”

“With power, of course, comes the potential for abuse. Therefore, the Association must be held to a high standard of responsibility: “The business and governmental aspects of the association and the association’s relationship to its members clearly give rise to a special sense of responsibility upon the officers and directors…. This special responsibility is manifested in the requirements of fiduciary duties and the requirements of due process, equal protection, and fair dealing.” [Sound familiar?]

Yet, this recognized international figure’s statements were ignored and not cited in a number of subsequent decisions. Instead, the courts preferred the antiquated, non-HOA decisions of the 1946 and 1948 “company town,” public functions test decisions in Marsh v. Alabama and Shelly v. Kraemer. These decisions predated the current HOA concept and legalities created in 1964 and were relied on.[5]  Like the “walking dead,” Marsh should be shot in the head and put away for good!

Now, to fully understand the issue we need to play the lawyer game and examine and parse the meanings of words and phrases.  Sorry, we must because that’s what HOA attorneys do — they can’t help it.

What is a mini-government? A quasi-government?  Following the recognized common meaning of words doctrine, “mini” means small and “quasi” means like.”  So, are we talking about small public governments? If so, I think this term answers the question that HOAs are small public governments.

Or are we talking about governments like public governments?  “Like” implies not really, but has the feel, or aura, or legalities of a public government.  If so, to what extent does a government become a public government?  How much “likeliness” is needed?  To what extent should homeowners have “like” constitutional protections?  All of them or some?  Or just some that give the appearance of constitutional rights and freedoms?

It seems that HOAs already have a number of “like” protections, but totally deficient and failing to protect the people.  They treat the HOA members as if they are “like” US citizens, having surrendered their citizenship.  This cannot be tolerated in a nation that prides itself as the ideal democratic country in the world.  Not at all!

It’s time to stop playing the HOA lawyer “word games” and accept the reality that HOAs are outlaw governments and must be held accountable under the Constitutional, as is required of all other governing bodies including those under Home Rule statutes.

References

[1] See in general: Do state HOA Statutes Establish HOAs as State Actors? (2007); The Constitutionality of state protected homeowners associations (2009) (Discussion on Hyatt’s view); HOA Case History: state actors or mini/quasi government (2011).

[2] Wayne Hyatt was a prominent figure in the promotion of HOA-Land as well as an important person in creating CAI in 1973, serving as its second president.

[3] Cohen v. Kite Hill, p. 5-6, 142 Cal App 3d 642 (1983), citing Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783, 799 [171 Cal.Rptr. 334]). Cohen has been cited in Terre Du Lac Ass’n, Inc. v. Terre Du Lac, Inc., 737 S.W.2d 206 (Mo. App. 1987); Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).

[4] “Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations” 12 Wake Forest Law Review at page 915, (1976).

[5] Brock v. Watergate, 502 So.2d 1380 (Fla. 4 Dist. App. (1987) (close nexus dicta); Midlake v. Cappuccio, 673 A 2d 340 (PA. Super. 1996); S.O.C. v. Mirage Casino-Hotel, 43 P 3rd 243 (Nev. 2001); Westphal v. Lake Lotawana, 95 S.W.3d 144 (Mo. App. 2003) (“Mr. Westphal fails to cite any authority to support his argument that the action of a quasi-governmental entity is state action.”)