Tag: democracy

Law review article criticizes HOA public policy

In her 44-page OK Univ. Law Review “Note” (2022) the author, Saige Culbertson, concentrates on the questions of agency relationships and duty of care. However, in order to discuss the question of agency relationships, Culbertson addressed many of the issues still causing problems in HOA-Land including the status of HOAs as quasi-governments, the validity of the CC&Rs “contract,” and the reality of maintaining property values.

With respect to agreeing to be bound, the author maintains in regard to the individual homeowner subject to the CC&Rs,  that

  • “HOAs use these contracts as a basis for their decision making because courts often presume the homeowners have a full understanding of their HOA’s obligations, because they have the duty to examine their contract for real property. The typical HOA contract is overly generalized and broad.
  • “When buying a home, a homeowner does not often have the option to not join. Homeowners also have little-to-no choice of which actions the HOA may take on their behalf, or, crucially, any actions taken by the HOA for any purpose.  
  • “However, the lack of mutual assent is constant throughout the relationship with the HOA. At the beginning, the homeowner might not have agreed to a relationship with the HOA, and those who have agreed might not have a full understanding of the rules of the HOA.
  • “[S]ome courts and scholars argue that HOA contracts are a form of adhesion contracts. Adhesion contracts are exclusively pre-determined by a single party and are presented as “take it or leave it,” while the non-drafting party has no room to negotiate.”

With respect maintaining property values, Culbertson is concerned about “The Fictional Purpose of a Homeowners’ Association,”

  • “The Community Association Institute recently reported 71% of individuals believed their community association rules ‘protect and enhance property values.’ While this belief may have been true in 2005,  more recent research indicates otherwise. 
  • “[A] study found that “[p]roperties located in HOAs do not appreciate faster, on average, than properties not located in any type of neighborhood government”

 and cites this study by Robertson,

  • “[A] 2021 study conducted by former Yale Professor Leon S. Robertson found that “[c]urrent sales price[s] [are] related to property characteristics and local market conditions[,]” and that “sales prices do not reflect the efficacy of homeowners associations to protect property values.
  • “Robertson remarked that “[s]tate and local laws that sanction homeowners associations and allow their coercive practices based on the premise of property value preservation are ill founded.”

With respect to quasi or local government, the author favors making “HOAs part of local government, founded in democratic ideals, and with regulation by the state or municipality,”

  • “The nature and purpose of the HOA are so closely linked to that of local government that . . . clearly give rise to a special sense of responsibility . . . . This special responsibility is manifested in the . . . requirements of due process, equal protection, and fair dealing. The severity of the risks associated with the substantial overreach by HOAs is further shown by actions depriving individuals of their basic rights.
  • “[U]pon 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 . . . . [citing Cohen v. Kite Hill Cmty. Ass’n, 142 Cal. App. 3d 642].
  • “The lack of checks and balances on HOA actions is a national problem and homeowners are often left with no remedy for violations of their rights. The need for regulation of HOA activities, and further federal protections for individuals, is especially apparent . . . .
  • “[H]omeowners should urge their local government to increase regulations on HOAs to protect their fundamental rights as Americans. States should therefore pass legislation to make HOAs part of local government, founded in democratic ideals, and with regulation by the state or municipality.”

Source: OK Univ. Law Review (PDF download).

Constitutional weakness as applied to HOA-Land

Yes, I admit the Constitution based on democratic principles and values  is not perfect. It is not an end-state but a practice. Democracy requires an active and informed electorate especially when applied to HOAs.  And so, the will of the people —  the voice of the people — in practicality is measured and expressed by majority vote. A “majority”  implies the existence of factions, of people with differing views and attitudes.

The Founding Fathers had to address the issue of the will of the majority trampling on the rights of the minority.  Since democratic principles require all the people to be  treated equally, how do you deal with factions within the  community?  John Adams, in The Federalist Papers #10 and #51, attempts to resolve this weakness.

Madison defines a faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens.” Like we see in HOA-Land, most predominately it’s a small minority in control because of member apathy; or the acquiescence of a majority of  members who believe the BOD can do no wrong.

Madison’s best answer is for democracy to function in a larger group or society where we can expect to have several factions vying and contending with each other for dominance, making it more difficult, but not eliminating, for a majority clique to dominate. (I am sure the Fathers  are rolling over in their graves due to the Trump Era politics). As reality has revealed over the years, it’s wishful thinking in HOA-Land.

The existence of a well-informed, knowledgeable, and involved citizenry is necessary for a healthy democratic society or community. That’s why free speech and the freedom of the press was made the first amendment to the Bill of Rights.  That is why public education is mandated by having states provide public schooling within the state. It doesn’t exist in fat, dumb, and stupid HOA-Land, unless provided by CAI’s “political correctness” education.

HOA reform advocates: the enemy is us

Let me start by saying that I have the utmost respect to the handful of persons, advocates, who have actively supported HOA reforms of substance over the years, and have had some success.  To all others I say, the enemy is us.

I well understand the reasons and justifications of people refusing to get actively involved. Personally, talking over the phone and through emails, that most do not have the temperament, want someone to solve their own personal issue with an attempt to expand it nationally, fear retaliation, fear legal issues and the government, and just don’t care about government issues in general.

The numerous social media reform groups, some old but most are new less than 3 years, have not only failed but have  resisted the establishment of a unified,  bona fide and legitimate, national entity; argued as far back by Evan McKenzie when interviewed by Shu Bartholomew, to the best of my recall, sometime before 2004. Today, I must regrettably say some groups make this claim, but they are in name only.

And so, the many Davids believe that they can defeat the mighty Goliath of CAI. The newbie leaders who rise from time to time and disappear a few years later, start by believing that CAI acts in good faith and they can work things out for the protection of homeowner rights. They quickly discover that they have been had, been played with, and realize they are helpless to withstand the entrenched CAI. Today, many who are beginning to be actively involved realize the dominance of CAI over their legislature.

Watch AZ CAI lobbyist at work, 2010, before committee dodge questions, make false statements, and avoid hard questions. Who Controls public streets? HOA or municipality? Part 2 of 3 (youtube.com). (Early quality video).

As the adage goes, as a figural demonstration of one’s commitment to reforms, “put your money where your mouth is.” However, in reality, I have asked people to buy my book, HOA Constitutional Government, as a demonstration of national commitment on a national website, Amazon, but have received token response.

In my announcement I  clearly stated, and still abide by it, that if there were such a legitimate national reform group I would assign all my royalties to that organization.  $15.00 is a trivial show of commitment but will be effective for recognition of national support. BUY NOW! Amazon books.

Taking a positive perspective, I noticed over the past few years a growing trend toward legislation and court decisions in several states affirming constitutional and fundamental rights of HOA members. That’s a good sign that advocate messages and communications are having an effect. 

Now is the time to strike while the iron is hot! Get unified, get organized, get focused, and stop the HOA social media reform groups’ fragmentation of me first, NIMBY policy.

Will the AZ Legislature reject the Constitution: does the HOA control public streets?

Thanks to Dennis Legere of AZ Coalition, AZ HB 2470, as far as I can tell form LegiScan, there are no amendments to this bill. Interpretation: caps are new provisions; strikeouts are deleted.

“33-1818. Community authority over public roadways  A. For any planned community for which the declaration is recorded  after December 31, 2014 and Notwithstanding any provision in the community  documents, after the period of declarant control A GOVERNMENTAL ENTITY  ACCEPTS THE TRANSFER OF OWNERSHIP OF COMMUNITY ROADWAYS FROM THE  DECLARANT, an association has no authority over and shall not regulate any  roadway for which the ownership has been dedicated to or is otherwise held  by a THAT governmental entity.”

Sections (B) and (C) of ARS 33-1818 are deleted in their entirety. Note that there is no “IF” qualifier meaning that the bill is a mandate for state action. The bill states the law for all HOAs.

As of this date its sitting in the Rules committee. It must pass Rules in order to go to the floor for a House vote. Then again in the Senate. Therefore, advocate Call To Action is to email the House Rules Committee members and argue to pass on the bill for a floor vote. Let all the Representatives have their democratic say.

Historically, this control of public streets issue  started back in 2014. A comprised solution was found in  2014 (I was then involved with Sen. Barto) that split who controls into 2 time zones. If HOA formed after 2014 the municipality controls, otherwise control status remains as of 2014. The only active and relevant HOA, or pseudo, HOA was Sun City West — Up until 2025. STAY AWAKE, more coming.

The new bill, HB 2470, amends a technical correction amendment of 2023 (HB2298, CH. 84)) relating to ARS 33-1818. It stated that HOAs formed prior to January 2015 must call for a vote of the members to retain the HOA’s control of public streets within the HOA. Only if it already “regulates any roadway,” which I believe is only Sun City West – those  retirees.” (My HOA falls into this category, before 2015 with public streets, but not regulating them).

This bill makes it clear that once the developer/developer turns the streets over to the state, HOAs have no control over public streets within the HOA. A solid stand in support of the AZ Constitution and the laws of the land. Obviously, an HOA with no public streets is still possible, and the HOA bears all costs for the street.

There 98 RTS entries FOR the bill, and 30 opposed, including CAI, the League Of Arizona Cities & Towns, the towns of SURPRISE,  Gilbert and Goodyear.  I recognize some opponents as being individuals who are CAI member attorneys: Lynn Krupnik and Jason Smith.

This bill is really a power struggle between CAI and state enforcement of  the Constitution. Why then is CAI once again vehemently in support of private government HOA control of public streets and not the state when there are existing laws that would meet an HOA’s objective?  Specifically, seeking a variance from their local planning board, and in general creating HOAs under Arizona’s Home Rule statutes, which makes them  a municipality. Why? Because the real import of the bill is CAI’s control of HOA-Land without state oversight. One aspect of a slow death to a democratic America.

Collected Writings — holding the judiciary accountable

In my BJR Con Job paper I end with  the failure of judges to be fully educated with respect to HOA-Land, but also the failure of  law schools to fully educate graduating students in regard to the HOA legal scheme.  Homeowners in court quickly find out how ignorant are the courts and lawyers with regard to HOAs. The chief reason is the dominance of the “CAI School of HOA Governance”[1] —  the CAI Ministry of Public Enlightenment and Propaganda.

It is important then that we address this state of affairs by educating the judges, the law school administrators, and the graduating law students. One way is to present a consolidated picture of the failures of the courts to uphold the Constitution as I have attempted with my HOA Constitutional Government: the continuing battle. (See ACT NOW below).

What has this to do with legislative reforms, you may ask.  There is an interplay between the legislature and the judicial system — separation of powers — whereby it is up to the courts to uphold and defend the Constitution from violations. As we know,  unfortunately, the courts have accepted and supported unjust HOA legislation!

 I can only recall one comprehensive attempt to accomplish this task by reporter Judy Thomas of the KC Star (August 2016, not currently available to the public without signup) with her extensive coverage of HOA board of directors conduct.[2]

* * * *

CALL TO ACTION

“The protection of the rights of free citizens depends upon the existence of an independent and competent judiciary.” 

First read the book, if only the Amazon description, book Preface, and selected issues of your choosing. Then send a Kindle or paperback copy to your state legislative leaders, the clerk of your state supreme court and any related education of judges division.

(Example from the AZ Supreme Court Education Div.)

Also include the deans of the law schools and persons in charge of programs (like a course in HOA related laws), and The Federalist Society whose mission is to educate law students by exposure to real cases, laws, and issues.

Purchasing the book alone will demonstrate to the above persons our commitment and concerns regarding the longstanding failure of the judicial system to support “equal justice under the law.” Sending copies will provide the documented framework, the evidence on record, containing the acts and views of judges in their own words.

ACT NOW!  

You can buy the 145-page book on Amazon:

Kindle (eBook) version    $ 9.95;     Paperback version:      $15.95

References

[1] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[2] See in general, “KC Star: problem with HOA? Don’t go to CAI”.