Tag: constitution

Truth in HOAs disclosure poll — please vote your conscience

Please let us know where you stand on the HOA issues of “agreement to be governed” and “consent to obey.”   If the following Truth in HOAs Disclosure Agreement were required to be signed at the time of purchase, would you sign or not sign your waiver and surrender of your rights and give you explicit consent to be governed?

Homeowner Association (HOA)
Buyer “Truth in HOAs” Disclosure
&
Consent to be Governed Agreement

 

By my signature below, I , the undersigned Buyer, have read and understood the restrictions imposed upon me by law and the courts as a member of an HOA, and have agreed to the waiver and/or surrender of my rights explicitly contained below. All other rights not expressly prohibited below or expressly granted below to the HOA are retained by me.

I, the undersigned Buyer, and the undersigned HOA by its President, hereby acknowledge and consent to the following:

(a) that the declaration of covenants, conditions and restrictions (CC&Rs), the bylaws, and any written rules and regulations are treated as binding private contracts by the courts; and that to enforce my rights under or compliance with the governing documents I must file suit in civil court, and that such a civil suit involves no state agency official, attorney general, or county attorney ;

(b) that under current court holdings, I am legally bound by any and all amendment to these documents validly enacted in accordance with the governing documents, with or without my vote or consent, provided that they are found not to be unreasonable, contrary to public policy or unconstitutional; and that an amendment may alter the CC&Rs at the time of purchase, binding me to
the amendment without my consent;

(c) that under current law, there are no substantive penalties against violations of the governing documents or state laws by the officers or directors of the association sufficient to serve as a detriment to future violations;

(d) that the association (HOA), as a private entity and not an arm of the state, is not subject to the restrictions and prohibitions of the 14th Amendment to the US Constitution that otherwise protects the rights of the people against actions by public government entities; and that the governing documents in all legal practicality serve as the subdivision’s “constitution,” taking precedence over
state laws and the state and US Constitutions, unless specifically denied by any such laws or legal precedence;

(e) that the governing documents contain due process protections, in instances of alleged violations of the governing documents, that are less than as required under public laws and civil court procedures, that are lacking requirements for an independent tribunal, such as the right to introduce or confront witnesses, or the right to introduce and challenge contrary evidence;

(f) that in any dispute with the HOA, and contrary my rights under the federal fair debts collection practices act (FDCPA), the courts require continued payment of your assessments even while the dispute continues;

(g) that there are no equivalent clean or fair elections procedures as found in public government elections, to protect the integrity of the HOA election process; and

(h) that the practicable ability to institute member “initiatives” and make changes to the governing documents or ACC rules is highly dependent upon the active participation of my neighbors who, as a member of an HOA, have been described as indifferent and apathetic; and that there are no provisions for HOA board “referendums” on issues that ethically should be put to a vote of the members.

CAI firmly supports the New America of HOA-Land

This issue of the Community Association Institute’s house organ, Common Ground, has the strongest language for the triumph of private agreements to supersede the US Constitution, making the Constitution a meaningless piece of paper, a meaningless document, and an empty compact between the people and the state. “The right to regulate activities within a community association is an embodiment of our constitutional rights to enter into agreements with our neighbors” so proclaims CAI. It implies that the community association is just another corporate entity, and not the governing body that regulates and controls the people within its borders, which is the essential ingredient that distinguishes a corporation from a political government, a state.

CAI is falsely arguing that anybody can write an agreement to circumvent the Constitutional protections that forms the basis of our political system of government. In essence, CAI is advocating the rejection of the Constitution as the supreme law of the land and you and your neighbor can draft a new constitution as you see fit, ignoring the original Founding Fathers document. And so can another group, and another, and another, and so on. Why Is CAI arguning so? Perhaps because as private organizations, HOAs are not bound by the Constitution and can do as they please – the Constitution be damned!

CAI bitterly complains in this piece about one “disgruntled resident “[who] used the power of government to limit the freedoms of association residents” and caused Arizona to use its legitimate police powers to regulate people and organizations, and to protect the constitutional free speech rights to fly the Gadsden Flag in HOAs

And, seemingly desperate, CAI lets its readers know where it stands: The one constant is that your colleagues at CAI, working through 33 state legislative action committees, are fighting to protect associations and ensure a healthy business environment for the companies that support our communities” (Emphasis added). CAI does not stand for the people, but for the undemocratic governing body of subdivision territories known as homeowners associations. And, CAI says it loud and clear, making it quite explicit: CAI is “fighting to . . . ensure a healthy business environment for the companies that support our communities.”That is, for their members, the lawyers and their self-proclaimed professional management firms. Let the Legislators hear well!

CAI is firmly behind the New America of HOA-Land of independent principalities unaccountable to any state in the Union. A balkanized hodge-podge of independent “city-states, under a parallel constitution known as the Uniform Common-Interest Ownership Model Act (UCIOA) and its variants across this country. Brought to you by the legal-academic aristocrats who have avoided any discussion of secession or repudiation of the principles of our American system of government. But, running to the state for protection as any principality must do. And the civil government of the state abdicates its duties under the US and state Constitutions, and protects these regimes against its own citizens.

“Fees, Finances and Flags,” Common Ground July-Aug 2011, CAI.

Twin Rivers and NJ HOA free speech rights, redux

Here we go again! Once again revisiting the question of free speech rights to display signs in a New Jersey HOA. In Mazdabrook v. Khan the appellate court revisited Twin Rivers and the underlying “test case’, State v. Schmidt, but with a different outcome in favor of free speech. I find it very interesting how our judicial system analyzes and bisects broad legal principles into 1001 “and, if or buts” micro-segments. How is the average person to know what is legal and what is not? Must he go to an attorney, who may or may not know but will take you to court to find out?

In Mazdabrook the homeowner placed campaign signs for his election as major of the town, not a for sale sign, but the HOA had governing documents permitting only for sale signs and no others. The court said No, No, No, that’s content-based restriction on commercial advertising and a constitutional violation of free speech rights and a total ban on other signs. In contrast to Twin Rivers, the HOA sign restriction to allow a sign in every window and one outside sign no more than three feet from the house was held not to be an unreasonable burden on the owner’s free speech rights. It cited the Restatement of Property “suggestion” that a covenant is not valid if it “not mentioning the obvious that a covenant is also invalid if it were unconstitutional.”

See, as to another question of reasonableness, the NJ Esposito case, In NJ, HOA boards do not have to be reasonable, and go figure how our judicial system works. See also the link to the Paula Franzese and Steven Siegel critique of the Twin Rivers decision in Rutgers Journal articles on HOAs and Twin Rivers case.

OF SPECIAL INTEREST and importance is the dissenting opinion of a judge who addressed such questions as: the waiver of one’s rights when simply taking possession of his deed, the implied consent to be governed, and a surprising reference to the waiver of ex post facto rights. Where did he get that from??? I wonder?

I’ve been told that the appellate decision has been appealed to the very same NJ Supreme Court, but oral arguments have not yet been heard. Also, the Rutgers Constitutional Law Clinic under Frank Askin, the party that represented the homeowners in Twin Rivers, has filed an amicus curiae brief for ACLU, and will be allowed to make an oral argument.

Cases

Mazdabrook v. Khan (N.J. Super. A.D., 2010, unpublished).

CBTR v. Twin Rivers, 929 A.2d 1060 (2007).

State v. Schmidt, 423 A.2d 615 (1980).

“Beyond Privatopia” – understanding the economic theories that brought about the New America of HOA-Land

Beyond Privatopia: Rethinking Residential Private Government, Evan McKenzie (Urban Inst. 2011)

 

Once again, a short book, 168 pages, by McKenzie is packed with very important information for those seriously interested in understanding the HOA phenomenon. A must reading for the public interest nonprofits, the legal-academic aristocrats, and all state legislators who have failed over the years to face the realities of the social and political impact of HOAs on our democratic system of government.

 

In his Preface, McKenzie proclaims that “this book is written in my own unusual hybrid perspective”, having one foot in the legal-academic club and the other foot amongst the homeowner rights advocates. He names names of leading advocates (p. 121, n. 4): Shu Bartholomew, Jan Bergemann, Pat Haruff, George Starapoli [sic], Fred Pilot and Monica Sadler. Yet, my impression so far is that the book is addressed to the legal-academic aristocrats to remind them that America was not founded on the state being an neoclassic economic force, a business, concerned with efficiency, productivity, wealth redistribution, or rational choice But, that America was founded on principles of democratic government as set forth in the Preamble to the US Constitution (my interpretation):

We the People of the United States, in Order to form a more perfectUnion, establish Justice, insure domestic Tranquility, provide forthe common defense, promote the general Welfare, and secure theBlessings of Liberty to ourselves and our Posterity . . . .

In Chapter 3 McKenzie discusses the libertarian views of Robert H. Nelson and Nozick, among others. He references Nelson with, “They contend that CIDs [McKenzie’s generic term for HOAs] are more efficient and more democratic [my emphasis] than municipalities and should replace them.” (p. xi). He present’s Nozick’s 1974 argument (p. 47) for “minimal states” that lead to “private protective associations.” Minimal states and protective associations have become today’s call for less public government and the CC&Rs enforcement agency known as the HOA.

 

Nozick’s defense of minimal states, according to McKenzie, is that “This [minimal] state would be legitimate, even though it may infringe on the liberty of individuals [my emphasis], because from the bottom up it would have been based on voluntarism and the rights of contract.” Sounds eerie doesn’t it? We hear these arguments today in defense of the HOA legal scheme, but as McKenize argued, they are based on myths. “The notion that individual owners agreed among themselves to perform these services for each other, and subsequent owners took over from them, is entirely fictional.” (p. 60).

 

Enough for now. More to come . . . .

In search of the elusive ideal HOA agreement

 

I received an email from a well-intentioned homeowner in Georgia. He was on the committee to rewrite the CC&Rs to make it fair both to the 692 homeowners and the HOA, which, I hope he realizes, is the current board of directors. He asked for my input, so I wrote in return:

 

  1. Do you think the Committee can create a more perfect union than that attempted in writing the US Constitution?

  2. Do you think 692 people can agree on everything in the CC&RS that you are putting together?

  3. Do you think 692 people really care about HOA government participation, or did they just want to buy a home?

  4. Would the Committee and the HOA Board sign, along with the 692 owners, the  Truth in HOAs Disclosure Agreement?

  5. Would the Committee include a guarantee that the HOA will maintain property values in exchange for the various waivers and surrenders of the owner’s private property rights and interests, both explicitly stated or implied by the CC&Rs, or by future court rulings? If not, then what is the buyer getting from the HOA? In a true democracy, people give up certain of their rights to the government in exchange for gurantees, justice, protections against more powerful factions, and to obtain an orderly, smooth-running society.

  6. Would the Committee include a prohibition on“ex post facto” amendments to the CC&Rs, similar to that in the US Constitution? That is, honor all prior CC&Rs versions existing at the time of each owner’s purchase? In other words, they are all grandfathered.

  7. Would the Committee include wording to the effect that the HOA irrevocably agrees to be bound and subject to the US Constitution and Bill of Rights in the same manner as if it were a local public government entity, as all other forms of are bound and subject? The phrase, “in the same manner as if it were a local public government entity,” is mandatory. Simply agreeing to obey the Constitution, as found in some CC&Rs, is meaningless would not subject the private HOA entity to the 5th and 14th Amendments.

Now, I hope you will realize the impossibility of your task and its expected failure. No one can expect a bona fide acceptance and willingness to obey any CC&Rs that are created as a mass marketing device to be sold to the public at large. And one that cannot be modified by the buyer in a true give and take exchange necessary for a valid and binding contract.