Tag: constitutional rights

HOA-Land Nation “Did you know?” Part 2

HOA-Land Nation “Did you know?”

Release No. 2 —  July 4, 2019

As an HOA member, did you know that:

 ·         Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties or punishments for violations of state laws or the governing documents?  Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.

 ·         The much touted HOAs are democratic because members can vote is utterly without merit?  Fair elections protections, as compared with those in the public arena, do not exist under a corporation law.  Members do not have equal access to HOA newsletters, website, member lists, and use of common amenity meetings rooms, among other denials.  

 ·         To bring about equal protection of your rights, the HOA attorney sides with the BOD, his client and not you, the membership.  And as a CAI member, lobbies the legislature to maintain conditions as they are – authoritarian HOA government.

 ·         You still retain your rights, privileges and immunities as a citizen but are denied these rights under the private HOA legal scheme, functioning outside constitutional protections.

 Discover the truth about HOAs!  The truth shall set you free!  Read The HOA-Land Nation Within America exposé on sale at Amazon.com. 


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.

state legislature not concerned about the plight of HOA members

Dianna Wray does an excellent, detailed and historical presentation of the unchecked and unregulated power of de facto HOA governments operating outside of constitutional protections – the lack of due process and the unequal equal protection of the law. Without mentioning the above, Wray presents several stories of Texas HOA abusive power that strikes to the heart of homeowner mistreatment and injustice, as the legislature ignores his plight as if Texas were a banana republic. And rightfully so, she extends these unthinkable conditions to occur in all states.

The author warns her readers that,

HOAs are almost completely unregulated and the law is heavily weighted on the side of the homeowners’ associations — they almost always win. In Texas there is no regulatory agency overseeing homeowners’ associations. Most county attorneys and district attorneys won’t get involved with an HOA unless there’s evidence of criminal wrongdoing, and the website of the Texas Attorney General’s Office explicitly states that the office does not investigate homeowners’ associations and advises homeowners to get a private attorney. Most private attorneys conclude that the business just isn’t worth it.

And that goes for all state attorney generals.

She quotes Texas attorney David Kahne (co-author of the AARP bill of rights for homeowners, among other things).

Typically by the end of the lawsuit, it’s been such a hassle, most of the lawyers representing homeowners swear they’ll never do it again. . . . It’s lawsuits over grass growing in the driveway cracks and people who have fallen behind on their dues because of real problems in their lives and then they end up with thousands of dollars of debt, most of it owed to the attorneys.

Wray adds that Evan McKenzie argues,

that HOAs erode homeowner rights because they create a system in which the HOA is never held accountable for its actions. ‘Why do people think you can live in an urbanized area without any form of government except for these privatized entities that are under no legal obligation to uphold your rights?  (My emphasis).

Readers of this commentary must understand, and must understand very well, that the laws on the books in all states are grossly inadequate for the purpose of compliance.  When laws, like HOA laws, fail to provide effective enforcement penalties against perpetrators, like HOA boards, they are merely recommendations and suggestions.  The legislators are relying on the good will of HOA boards, attorneys and managers to voluntarily comply not only with the letter of the law, but with the intent as well.  The record clearly shows that this is not so!

Obviously in disregard of the above criticisms of the HOA-Land legal structure, HOA supporters respond with the same ol’ platitudes. From the HOA attorney,   “Believe me, a lot of people complain about HOAs, but the alternative is chaos . . . It seems like I have a really mean, nasty job, but if somebody doesn’t do it, suburbia would collapse.”  

From the Houston Texas CAI chapter Executive Director,

Without HOAs, common areas wouldn’t be kept up and people could paint their front doors scarlet, park boats on their lawns, put up countless yard signs, keep any number of pets and have six-foot-tall topiary rabbits in their front yards, destroying the look and value of neighborhoods.

They are resorting to fear-mongering!

These supporters, including CAI, are saying that they do not trust their fellow Americans and concerned people must resort to authoritarian contracts and strict enforcement of the rules in order to have a healthy, desirable and joyful community. Can you believe that? Talk about breeding hostility and division among your neighbors. One false move, a report by any “kindly” neighbor, can bring down the wrath of the HOA enforcers.

The author reminds of events in Texas long forgotten or not known to the people, even in Texas, of the battles of Winonah Blevins (2002) and Geneva Kirk Brooks (2004), pioneers in the fight for homeowner rights. Before these cases, won by the homeowners, there was the outrageous Texas Supreme Court decision in Inwood v. Harris (1987) in which the Men in Black ignored the explicit wording of the Texas Constitution regarding foreclosure protections and permitted Inwood to foreclose on Harris. (A few years later, apparently in response to the growing outcry of the court’s shameful special interest decision, the legislature amended the constitution to validate the Harris decision.)

 While the article is lengthy, it is not a manual of how to get along in HOA-Land and remain happy by just following the rules. Or a list of “should-be” or “ought-to-be” statements that are unattainable and beyond the norms of society, like you must accept the surrender of individual liberties for the greater good. It deals with the reality before homeowners and the intentional failure by state legislatures — in all states — over the years to stand by the people and not the special interests.

It is a “telling it like it is,” or that it could easily be that way at any time in your HOA with a changing of the HOA board, or a new attorney, or a new management firm. The homeowner, as presented in Dianna Wray’s well written article, lives at the suffrage of the board; helpless to defend themselves against HOA abuse without a costly battle. Remember that well!

 

Tipping Point: In Huntington Village, the Community Association has All the Power, Dianna Wray, Houston Press ( http://www.houstonpress.com/news/tipping-point-in-huntington-village-the-community-association-has-all-the-power-7998755, Dec. 15, 2015).

PA congressional candidate Andy Ostrowski stands behind need for HOA reforms

Andy Ostrowski wrote on Facebook, Homeowner’s Associations – The Perfect Storm of Corporate Cronyism and Legislative and Judicial Abuse of Constitutional Rights evincing a strong concern for HOA reforms.

Please support Andy’s campaign so he can speak loud and clear in Congress and in Pennsylvania for others to hear.

He will be interviewed tomorrow on Shu Bartholomew’s OnTheCommons.us talk radio at 2:00 PM EDT.

Here’s glimpse of Andy’s Facebook article:

This property ownership and management system, under the guise of “freedom of contract” takes all government accountability out of the equation, and leaves millions of Americans subjected to the whims of appointed boards with sweeping powers to fine and sanction homeowners, and foreclose on homes for violations of HOA rules without adequate judicial oversight, and in accordance with full due process protections  – it is, in essence, a form of corporate autocracy, and that has no place at all in a country that was formed as a constitutional republic.

If it is an honest system, and the CAI and HOA organizations truly have the best interest of the homeowners at heart, and are not just trade groups serving the big corporate and banking interests, the simple assurance, through full and complete disclosure, and arms-length negotiation, that people are not giving away their constitutional rights for nothing is something that we should, as a society, expect at a minimum.

Read more at PA congressional candidate rejects HOA-Land

HOA statutes create state actors and actions

[The message of this letter to the Arizona Legislators is valid in regard to the legislation and statutes of many other states. The corporate form of HOA governance needs and relies on its unjust power to deny homeowners their constitutional rights in order to coerce obedience. The special interests, especially CAI, prefer that these valid arguments not be exposed to the public, legislators or the media. This is just what we must do if we are to obtain fair and equitable treatment under the laws].

April 30, 2005

Dear Arizona Senators:

Please do not pass this Homeowner Association bill, HB2154. It will further entangle Homeowner Associations as state actors.

The amendments to ARS 33-1260 & 33-1806 read, in part,

(h) A statement that provides “I hereby acknowledge that the declaration, bylaws and rules of the association constitute a contract between the association and me (the purchaser).

I believe this would be challenged in court as violating other statutes on contract law that require a meeting of the minds and a signature by the homeowner. There is no explicit waiver of constitutional rights. The above wording is suitable for a government agency or some municipal government entity, but not for a private contractual arrangements.

For example, creating or modifying HOA Rules do not require the homeowner’s signature, or even a vote of the members. Adding this paragraph further strengthens the close nexus between the state and the HOA, and further solidifies the status of the HOA as a state actor(1).

The Arizona Constitution, Article II, Section 2, reads (my emphasis):

“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”

The provisions of HB2154, and ARS 33-1256 and 1260; 33-1803, 1806 and 1807; 42-13402 (common area valuation), collectively support the validity of arguments that HOAs are state actors and, thus, subject to the 14th Amendment protections of due process and the equal protections of the laws. Realizing that these statutes will soon be challenged, passing this bill should be carefully reexamined.

A short presentation of supporting constitutional arguments can be found below under Note 2.

Respectfully,

George K. Staropoli
Citizens For Constitutional Local Government

NOTES
1. This appears that this is the only bill out of 22 HOA bills that will be sent to the Governor, Other aspects that interfere with the homeowners rights inlcude: removal of disclosure of loss of homestead exemption (don’t tell the buyer); adds reasonable collection fees to HOA liens (actually, more fees to attorneys since attorney fees are already included); revises board removal procedures; replaces proxy voting with secret ballots without any protections relating to the counting and verification process, and any meeting “new business” leaves homeowner out on the cold.

2. Constitutional arguments, supported by case law, from Nowak & Rotunda, Constitutional Law §§ 12.3, 12.4, (6th Ed., West Group 2000) (my emphasis).

· Cases in which alleged wrongful activity . . . have a connection to state legislation present the widest scope of factual situations.
· When state legislation commands a certain activity, or officially recognizes its legitimacy, there is no question but that state action present whenever someone follows the guidelines of the statute [as demonstrated by the above mentioned statutes].
· Again the reason . . . is that the alleged wrongdoing appears to be connected to activities of the state in such a way that it can be said to be a denial of rights by the state itself.
· When judges command private persons to take specific actions which would violate the Constitution if done by the State, state action will be present in the resulting harm to constitutionally recognized rights [property and liberty rights].