Tag: contract

KY legislators allow HOA private contract to determine public policy

This failed bill reflects the facts of life that HOA private agreements control the public policy for all citizens of a state. Read this simple bill. It is disgraceful!

In Arizona, the Senate debated such unconstitutional powers of private government HOAs over regulating public streets. (See Arizona Senators debate HOA legal status and The power of private HOA contracts, and other “voices of the people”). HOAs have become the second form of local political government in this country, and have been accepted and supported by state legislatures in violation of their oaths to support the US Constitution.

This bill, an emergency bill for a disabled boy who lives in an HOA, whose parents built a play house in their backyard, without HOA permission, was rejected with 6 out of 14 committee members not voting. I believe the KY legislators caved in to the powers of the HOA industry, and. shamefully took no sides. Disgraceful!!

AN ACT relating to the protection of disabled children.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

âSECTION 1. A NEW SECTION OF KRS CHAPTER 382 IS CREATED TO READ AS FOLLOWS:

(1) Any owner of real property used as that person’s actual residence shall have the right to alter or construct on that property any structure reasonably necessary or convenient for the accommodation or therapy of a physically disabled person residing on that property who has not reached the age of majority, provided that the alteration or construction is recommended by a physician for the accommodation or therapy of the disabled person and the alteration or construction does not otherwise violate local, state, or federal law.

(2) The application of any property agreement or provision arising by deed, covenant, servitude, contract, or other instrument or agreement that would limit the rights granted by this section is hereby declared to be contrary to the public policy of the Commonwealth and any attempted application of these provisions in violation of this section shall be void and unenforceable.

âSection 2. This Act shall be known and may be cited as Cooper’s Law.

âSection 3. Whereas the immediate effectuation of the fundamental rights created by this section is necessary to protect the physically disabled children of this state from pending harm and no good cause exists for delay, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.

The power of private HOA contracts, and other “voices of the people”

A scenario, not so hypothetical, and only to emphasize my point.

Suppose a group of ethnic people in a subdivision draft a set of “mother country” laws to govern the community. That among these contractual laws, by virtue of just remaining within the community and not moving out, are covenants that concern the proper treatment of marriage, of women, and of children. Anyone entering into the community is held subject to the community laws and Mother Country punishments. Will this private contract prevail over US law? Why not? HOA contracts do. What’s the difference?

Now suppose a group of homeowners living in an HOA do the same thing? Suppose they argue, as in the Dec. of Indepen., that the HOA government is illegitimate and invalid for various reasons including contract fraud, unconstitutional, and contrary to public policy. That they therefore reject the HOA government. Which contract shall prevail? The Mother County contract or the HOA? Can the HOA claim that their contract is superior to the will of the people in this group, as they have done in turn with civil laws? What’s the difference? Who is right?

Is this country, and your state, under the rule of law or the rule of man?  Where any group can write an agreement to circumvent the US and state constitutions.

Arizona Senators debate HOA legal status

 The Voice of Times Past  and the Voice of Times Present

 

A lengthy exchange, exemplifying  the polarized views of the HOA legal concept occurred between two committee members  during the Senate VMGA Committee hearing on SB 1113, control of public roadways  (Jan. 31, 2012).  I refer to the two Senators as the Voice of Times Past and the Voice of Times Present.

Senator  John Nelson, Times Past,  speaks from the past and echoes the pro-HOA themes of maintaining property values, of freedom of contract, and unquestioned consent to agree  and full compliance with contract law.  His position speaks in favor of HOAs as independent principalities above all other laws of the land, holding that private parties can contract to avoid the Constitution and laws of the land.

I do not mean to be disrespectful,   as the Senator appears to truly believe in his position — and we all are entitled to our beliefs — yet he  has not realized the implications of his beliefs on his duties and obligations as a state senator.   He has  failed to address the consequences and impact on society of such beliefs, which have become  ingrained and dogmatic over the many years

Senator Frank Antenori, Times Present, speaks of constitutional infringements by the HOA legal concept and of violations  of our principles of democratic government by de facto  private entities unaccountable under the Constitution. These issues were  also raised by the bill sponsor, Senator Nancy Barto. 

What is apparent in this exchange is that to resolve the alleged safety issues on street parking, the HOA simply refuses to make use of the legal vehicle of seeking planning board variations, thus making this a political power issue between public government and private HOA principalities.  Furthermore, putting “we can contract to do anything we want,” even to ignore the laws of the land, is an absurdity too often used by those seeking unrestrained power, and too  often irresponsibly thrown about.  Case law has repeatedly rejected any such unqualified authority. 

(It should be noted that CAI did not speak at this hearing, and it’s member blog did not address constitutional issues of de facto private governments seeking special treatment above the laws of the land).

What  the Voice of Times Yet To Come  will have to say depends on what occurs today, in Arizona, and  in all state legislatures across the country.   Will the 200 plus year American experiment in democratic government be extinguished by a successful second, 48 year American experiment in private, authoritarian government functioning  under fascist principles?

The bill squeaked by and was passed by a 4 – 3 vote.

 The complete public video of the hearing can be found in the Arizona Legislature video archives for that hearing (click here).   Jump to 39:00 minutes for the 30 minute exchange.  After viewing the video, you will better understand how HOAs have become a second political government at the local level, and what legislative obstacles lay in the way to susbstantive HOA reform legislation. 

At about the same time as this Arizona debate, an NPR radio talk show took place  in Charlotte, NC (WFAE,  Charlotte Talks, Mike Collins, host)  that also addressed the good, the bad and the ugly of HOAs.  It is well worth listening too, as it also addresses public policy concerns. The link can be found at the  North Carolina Coalition for Homeowners Rights website.

See also, 

1.  Evan McKenzie’s Privatopia Papers contribution to the constitutional issues debate, HOA debate: illegitimate government and invalid CC&Rs contract.

2.  HOA-Land — the failure to democratize.

Statement to NC Select HOA Committee

January 17, 2012

Mr. Ed Stiles
Committee Assistant
NC House Select Committee on HOAs
 
email statement

Statement to the NC House Select Committee on HOAs

January 23, 2012 Meeting

Dear Committee Members,

I am submitting this email statement for inclusion into the record for the January 23, 2012 hearing on homeowners associations. I am a nationally recognized homeowner rights advocate who believes in “supporting principles of democratic government.”

Over my 13 years of involvement in HOA reform legislation across this country, I have witnessed a slow, but steady, change in the perception of homeowner associations from “the next best thing to Mom’s apple pie” to the realization of that there are “worts” all over the HOA legal concept and statutes. The reason for this has been the extensive use of the internet by advocates, and the inability of the pro-HOA forces and national lobbyists in every state to stifle their voices. For over 48 years, since the introduction of the “HOA “bible”, the Homes Association Handbook, these forces held sway and shaped the attitudes of the public, the media, the policy makers, and state legislators. They exclaimed the virtues and benefits of the HOA scheme, and hid the worts, the serious defects, among the most egregious being the denial that HOAs are authoritarian, private, de facto governments that function as independent principalities. As such, HOAs are illegitimate local governments.

I am not rejecting the freedom of choice, if indeed that is a fact, in selecting the perceived benefits of a planned community by buyers, but the mass merchandising of these HOAs under highly questionable sales and advertising methods – misrepresentation, fraud, half-truths, false truths. As an example, no state has adopted anything close to the “Truth in HOAs Disclosure Agreement” that serves as a notice and warning of what HOA life is really about. (See, Appendix A, Model Consent to be Governed Disclosure Bill). I am not objecting to that real estate “package” of benefits, but to the form and nature of the governing body of the subdivision, commonly known as the Homeowners Association, and the adhesive CC&Rs “contract” that denies constitutional protections of due process and the equal application of the law.

HOAs are unaccountable to the state government. The statutes are unconstitutional special laws for special organizations, that reject contract law and constitutional law for the common law of equitable servitudes. As long-time advocate Evan McKenzie wrote in Privatopia (1994),

In a variety of ways, these private governments are illiberal and undemocratic. Most significantly boards of directors operate outside constitutional restrictions because the law views them as business entities rather than governments. . . . [They] are inconsistent not only with political theories of legitimacy but with the normal process by which governments are created. . . . Thus these ‘private governments’ may violate the equal protection clause of the Fourteenth Amendment. (Chapter 6).

There is no justification for the non-application of the laws of the land, and the denial of fundamental rights, freedoms, privileges and immunities for homeowners with such weak arguments as: “better landscapes make better communities,” or the shifting of residential development costs from the local municipality to the homeowners, or “they agreed to be bound.” The last of which is a mockery of justice and our system of government as it allows the waiver and surrender of rights and freedoms by the mere posting of a Declaration of CC&RS to the county clerk, sight unseen by those who will be bound by the CC&Rs, by a profit seeking developer adhesion contract.

This Committee has the opportunity to begin to set things right, to restore this country to “one nation, under God, indivisible, with liberty and justice for all,” and to remove this second form of local government that has seceded from and rejects the Constitution. The Committee will hear from HOA supporters and from self-interest groups who should, by this time, understand that they, too, are rejecting the Constitution and the principles of democratic government. And more importantly, it will hear “petitions for redress” from homeowners. Do not fail the citizens of North Carolina. Do not cause them to have to say, “Our repeated petitions have been answered only by repeated injury.”

I ask that the Committee to do justice by paying heed to those petitions by homeowners and taking on the long overdue HOA reforms being asked.

My HOA profile, Appendix B, is provided for your convenience.

Respectfully submitted,

George K. Staropoli
President
 

HOA debate: illegitimate government and invalid CC&Rs contract

A very important and lengthy exchange on substantive matters regarding the HOA legal structure and concept can be found on Evan McKenzie’s The Privatopia Papers blog. The topics of discussion are the legitimacy of private HOA government and the validity of CC&Rs as contracts.

Participants, as of this writing, including McKenzie, are Tyler Berding, a California attorney, and homeowner rights advocates Fred Pilot, Fred Fischer and yours truly. The discussion is under the heading, “Do owners believe CC&Rs are contracts?” in the January 2012 postings. The debate was triggered by Pilot’s post of December 31, 2011, commenting on a article wherein he states, “That’s because people don’t see HOA covenants — a real property contrivance — as contracts,” and, “In addition, many property owners don’t see HOAs as legitimate governing authorities.” There are an additional 10 comments on this posting as of this writing. 

Follow the debate at The Privatopia Papers.

Thanks to Evan McKenzie, author of Privatopia (1994) and Beyond Privatopia (2011), for publicizing this important debate.