Tag: constitutional law

Getting your HOA reform bills accepted

I’m pleased to see many of you are using my Commentaries on HOA Constitutional Government as part of your efforts to bring about HOA reform legislation.  Allow me to recommend a procedure that should improve more success in getting your legislators’ attention. Justification for my arguments below can be found in the “Recommend texts” below; homeowners and advocates cannot neglect these works of mine and others.

  • Legislators are immerged in tons of emails by many persons and “robo emails” — the same email sent by many persons —  get slight attention;
  • There is some success that your district representative will sponsor your bill and your reforms;
  • Emails from state residents to bill sponsors and committee chairs and members are generally read, but outsiders receive less attention unless   strong credentials are provided to counter CAI’s credentials;
  • The main focus of your email should be your reforms with the inclusion of works from others being supportive.
  • Have no fear of show the ugly forest through the trees by addressing constitutional violations that support your reform legislation — over my 24 years CAI has ignored any such discussion and will fight like hell to avoid constitutionality issues (I challenged them back in 2006, no response);
  • CAI and the legislators  will not put themselves in a highly vulnerable position of having to defend the indefensible, a rejection of the Constitution; it is their Achilles heel;
  • Have no fear of raising the important issues of intentional misrepresentation in the claimed  “you agreed  to be bound” CAI defense, invalidating the legitimacy of the adhesion CC&Rs contract;
  • Don’t be penny wise and pound foolish – spend some small change and get copies of publications that will serve as textbooks on getting your issues heard before your legislature (see “Recommended texts” below).

Recommended texts

Privatopia, Evan McKenzie (seminal book on private HOA government)

HOA Common Sense: rejecting private government, George K. Staropoli (entry level constitutional violations)

Take Back Your Government, Morgan Carroll (out of stock at Amazon; eBay, Thriftbooks)

HOA Constitutional Government, George K. Staropoli (a one volume collection of 56 events and situations over 24 years)

collective writings — immediate release

FOR IMMEDIATE RELEASE                 Contact: George K. Staropoli, 602-228-2891

The battle for HOA Constitutional Government

Surprise, AZ – February 1, 2024 — For over 60 years, since 1964, the controversial issue as to the validity and constitutionality of Homeowners associations (HOAs, PUDs, POAs, condos) has been ignored by state legislatures, attorney generals, the judiciary, and the media.

In order to set the record straight and to educate and reorient the policy makers, the constitutionality of HOAs is raised in the collective writings of long time HOA reform activist and nonlawyer, George K. Staropoli. In his  January 9, 2024 published HOA Constitutional Government: the continuing battle,  he has presented 56 of his 1,300 social media posts over his 24 years as a reform activist.

These posts – as originally written and not as legal advice or opinion — contain his views based on documented legislation, case histories,  statements and various releases by the parties including the lobbyist entity, in their  own words.

The case is made that 1) the HOA declaration of CC&Rs is ab initio unconstitutional and invalid; 2) the CC&Rs are a devise to escape the application of constitutional protections; 3)  HOAs are permitted to do things municipal governments are not allowed; 4) there is no genuine, valid support for “agreed to be bound” under the application of equitable servitudes constructive notice doctrine; and 5) the judiciary has failed to educate  judges and law students on laws and principles affecting the HOA legal scheme.

It is argued that this irresponsible state of affairs is primarily the result of the dominance and influence on the policy makers by the national HOA lobbying trade group.  All the state HOA “Acts” and laws constitute “new law,” and the HOA legal scheme has been treated as sui generis; mixing laws of the land with new meanings and definitions to sell the HOA legal scheme to all Americans.

These Acts are nothing more than parallel laws to the Constitution, and superseding the Constitution in many court decisions. In a selected entry Staropoli quotes CAI’s brief to the NJ court in 2006:

“In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . raises the likelihood that judicial intervention will become the norm.”

* * * *

Get HOA Constitutional Government – amazon.com

HOA Constitutional website: http://pvtgov.info. Staropoli has had his per se AZ Supreme Court amicus briefs challenging HOA constitutionality accepted by the court.

HOA Constitutional Government: collected posts

Before the AZ Supreme Court

The purpose of this book is to educate the people — the general public, the HOA members, the media, state legislators, and those learned authorities — who have been subjected to disinformation presenting a misleading view harmful to the Constitution and our democratic system of government.

The posts contained in Collected Writings have been selected from my Commentaries posted in HOA Constitutional Government (http://pvtgov.info).  There are over 1,300 posts dating back to 2004 discussing issues, and dealing with events, legislation, statutes, and state court appellate cases that came to my attention.  The Commentaries are short, to the point, and contain related notes, references, and links to complete papers and provide authoritative documents for further study. They are the original Commentaries with some technical adaptations.

Available shortly will be a 145-page paperback on Amazon. In draft is a Kindle eBook version also available on Amazon. There are 4 main areas covering countrywide events – developments as far back as 2000:

  • On Legislation
  • On the Bill of Rights
  • On the Judiciary
  • On Civics  

On this 2023 New Years Eve, resolutions to move forward on effective HOA constitutionality challenges and reforms would be very appropriate, and necessary.

HOA lawyers take heed! Federal judge chastises lawyers

The NY Times Opinion by retired federal Judge Luttig*, while speaking to the national Trump Era crisis, well applies to HOA lawyers. I am completely mystified by the lack of defense and silence by state attorney generals, constitutional think tanks like CATO Institute, The Heritage Foundation, The Federalist Society, and constitutional lawyers and law schools. Read on!

“Leaders of the legal profession should be asking themselves, ‘What role did we play in creating this ongoing legal emergency?’ But so far, there has been no such post-mortem reflection, and none appears on the horizon.  Many lawyers ‘have instead stood largely silent, assenting to the recent assaults on America’s fragile democracy.’

“More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. . . . Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.”

The Opinion is concerned about what, if anything, is being done to rectify this attack on democratic institutions.

“The Federalist Society, long the standard-bearer for the conservative legal movement, has failed to respond in this period of crisis. . . . Principled voices [must] speak out against the endless stream of falsehoods and authoritarian legal theories that are being propagated almost daily. To do otherwise would be to cede the field to lawyers of bad faith. We have seen in recent years what the unchecked spread of wildly untrue and anti-democratic lies gets us.”

Addressing law colleges failure to educate students, a movement is called for.

“The movement will focus on building a large body of scholarship to counteract the new orthodoxy of anti-constitutional and anti-democratic law being churned out by the fever swamps. The Constitution cannot defend itself; lawyers and legal scholars must.”

In the past I’ve written about the failure of law colleges to include the numerous views and positions on the constitutionality of the HOA legal structure. See “Is CAI’s ‘lack of candor to the tribunal’ intentional?”

*          “The Trump Threat Is Growing. Lawyers Must Rise to Meet This Moment,” NY Times Opinion, Nov.23, 2023. By George Conway, J. Michael Luttig and Barbara Comstock.  “The writers are lawyers. Mr. Conway was in private practice. Mr. Luttig was a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Ms. Comstock represented Virginia’s 10th District in Congress from 2015 to 2019. They serve on the board of the newly formed Society for the Rule of Law Institute.”

Do we need a private, parallel government? Why?

The answer to the title question is a resounding, NO!  Here are the reasons why not. In essence, all those state HOA/Condo Acts and statutes establish and permit a parallel system of local government— that regulates and controls the residents within its borders —  to function outside the Constitution.

First, it’s time for state legislatures and the judicial system to acknowledge their   willful blindness[1] that the HOA legal scheme, with its insistence and reliance on  equitable servitudes, that “the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”  

Professor Evan McKenzie said it quite clearly some 29 years ago in his 1994 book, Privatopia, “”CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local governments.”[2] It remains true today!

Second, Why are there private HOA governments when there is home rule, charter governments?[3] All the states have a version of home rule that varies in the degree of independence granted to a local governments and under what terms. Under the Home Rule doctrine local communities are permitted a large degree of independence even to the extent that state legislative action is not necessary. What is Home Rule? In simple terms, it is a grant of authority and power — of independence — from the legislature to local communities.

There are no legitimate reasons why HOA governed communities cannot exercise effective and productive self-government while  being subject to constitutional law under home rule statutes.

Third, Just what are the valid reasons for sporting and encouraging private government by the state?  Answer: there’s no legitimate and valid reason for private, local government to exist outside the constitutional framework.  Home rule doctrine existed long before the advent of the HOA legal structure in 1964. That is not to say that it would have solved all problems and be a perfect government, but it would be a government under the Constitution, part of the Union,  like all other forms of local government.  

The constitutionality of statutes is subject to the doctrine of judicial review and scrutiny.[4] I have yet to see any valid government justification in support of the HOA legal scheme that deprives citizens of their constitutional and fundamental rights, which requires meeting the strict scrutiny test. Under strict scrutiny, “the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmental interest.”

To argue, as have the states and pro-HOA supporters, that state and local government have an interest in reduced expenditures and the establishment of desirable community living does not carry weight. There are valid arguments that the HOA legal scheme denies fundamental and constitutional rights under the 14th Amendment,[5] which requires the application of strict scrutiny.  It has not been tested!

It is no wonder that state legislatures, CAI, and pro-HOA supporters avoid the issues of HOAs as de facto governments, and questions of judicial review.

The 64-dollar question is: Why do HOAs continue to exist and grow? Could it be, like drugs, there is widespread demand? Or is it because of the collaboration — as a group functioning as a monopoly[6] —   of CAI, the builders/developers, real estate agents, etc. to restrict housing solely subject to private governments? Is housing in HOA-Land equal to public, free-market housing?

Adopting the US Supreme Court’s decision in Brown,[7] “’separate but equal’ has no place. Separate educational facilities are inherently unequal.” Separate HOA/condo housing under private governments is inherently unequal and a violation of the 14th Amendment’s Equal Protection Clause.

The answer will be more discussed in more detail in a subsequent commentary.

NOTES

[1] Willful blindness is a legal concept that describes the state of deliberately ignoring or avoiding facts that would make them liable for a wrongful act. 

[2] Evan McKenzie. Privatopia: Homeowners Associations and the Rise of Private Residential Government, Yale Univ. Press, 1994.

[3] See America’s homeland: HOA law vs. Home rule law.

[4] See Judicial Scrutiny standards judge claims of constitutionality

[5] In general, see Desert Mountain opinion (AZ) constitutionality – part 2,  and Law review on CC&Rs constitutionality – part 1.

[6] A monopoly can be “a company or group having exclusive control over a commodity or service: ‘areas where cable companies operate as monopolies.’”

[7] Brown v. Bd of Education,  347 U.S. 483 (1954).