Tag: democracy

HOA-Land — the failure to democratize

Note: The following is an excerpt from my paper, “Are the American people rejecting democracy at the local level?”

HOA-Land — the failure to democratize

 Will the acceptance of authoritarian private local governments in the US result in a weakening of democracy in America, and destroy “one nation, indivisible, with liberty and justice for all”?  

“Democratization” describes the processes underlying “the emergence, the deepening, and survival of democracy” in a society.  Democratization is also concerned with the forces that affect the sustainability of a democracy.  And that’s the issue before us:  Has the First American Experiment with representative democracy succumbed to the “emergence and acceptance of a quiet innovation in housing,” the Second American Experiment? This New America of HOA-Land?[i] 

In his “Theories of Democratization”,[ii] Christian Welzel presents a case well applicable to HOA societies.  Welzel believes that, “Democratization is sustainable to the extent to which it advances in response to pressures from within a society.”  It appears that HOA-Land dwellers feel no need to pressure for change, just like Mayer discovered with his interviews after WW II.

People power is institutionalized through civic freedoms that entitle people to govern their lives, allowing them to follow their personal preferences in governing their private lives and to make their political preferences count in governing public life.

Since democracy is about people power, it originates in conditions that place resources of power in the hands of wider parts of the populace, such that authorities cannot access these resources without making concessions to their beholders. But when rulers gain access to a source of revenue they can bring under their control without anyone’s consent, they have the means to finance tools of coercion.

 The above amply defines the dynamics of political machines and power cliques that operate, more or less, within all HOAs from benevolent dictatorships to rogue boards. And with respect to voting as the sole indicator of a democracy, it is well known that HOAs are woefully deficient in fair and just elections, with no “fair elections” laws in effect. Welzel goes on to say,

Many new democracies have successfully installed competitive electoral regimes but their elites are corrupt and lack a commitment to the rule of law that is needed to enforce the civic freedoms that define democracy. These deficiencies render democracy ineffective. The installation of electoral democracy can be triggered by external forces and incentives. But whether electoral democracy becomes effective in respecting and protecting people’s civic freedoms depends on domestic factors. Democracies have become effective only where the masses put the elites under pressure to respect their freedoms.

 Once again we are told that there’s a need for pressure from within, from those living in HOAs, to uphold their Constitutional protections.  Even if state governments decide to enforce constitutional protections and the equal application of state laws, it remains with the HOA-Land residents to defend our system of government.  Welzel reaffirms this essential requirement, “It is only when people come to find appeal in the freedoms that define democracy that they begin to consider dictatorial powers as illegitimate.”

 Welzel offers a path to victory to stop this erosion of democracy within America that is highly applicable to the social movement for HOA reforms.

 As social movement research has shown, powerful mass movements do not simply emerge from growing resources among the population. Social movements must be inspired by a common cause that motivates their supporters to take costly and risky actions. This requires ideological ‘frames’ that create meaning and grant legitimacy to a common cause so that people follow it with inner conviction.

This is why values are important. To advance democracy, people have not only to be capable to struggle for its advancement; they also have to be willing to do so. And for this to happen, they must value the freedoms that define democracy. This is not always a given, and is subject to changes in the process of value transformation.

 And what about our elected officials?

 However, although Welzel writes that “elites [those in power, the cliques] concede democracy even in the absence of mass pressures”, it is only “when these elites depend on the will of external powers and when these powers are pushing for democracy.”   But, with respect to HOA regimes, Americans cannot accept this state of affairs by state legislatures, especially not with respect to these fundamental issues of democratic governance — the very soul of this country.  The absence of legislative support, sua sponte (on their own), for HOA reforms throughout the country is inexcusable! 

 

[i]Understanding the New America of HOA-Land, George K. Staropoli (StarMan Publishing 2010).

[ii] “Theories of Democratization”, Christian Welzel, Democratization, Christian W. Haerpfer, ed.  (Oxford University Press USA 2009).

 

Would FDR call HOAs fascist?

In his message to Congress on “The Concentration of Economic Power” on April 29, 1938, President Roosevelt said,

The liberty of a democracy is not safe if the people tolerate the growth of private power to the point where it becomes stronger than the democratic state itself. That in its essence is fascism – ownership of government by an individual, by a group or any controlling private power. ”  President Franklin Delano Roosevelt.

It is quite clear that President Roosevelt could have been speaking about homeowner associations, HOAs, right here in America — those private governments created for the benefit of the developers who “toss” certain benefits to  local public governments, the realtors, and the buyers.

What has happened to America?  What has happened to those cherished values of demoncracy, of justice, and of liberty for all?   Today, some would have you believe that public government is to be run like any other private business. America has been  infiltrated and overthrown from within!

Years from now, when Europeans come here to ask, How could this happen in America,  they will hear the same answers as given by the average German after WW II.  Americans had gone to Germany after WW II to understand how could the German people allow the Nazis to come to power. They discovered that the people accepted the benefits brought by the fascists, and they gave lame excuses as to their acceptance of the oppressive Nazi rule. (See the paperback, They Thought They Were Free, Milton Mayer, 1955 and Can substantive HOA reform legislation happen?).

Our  “Constitution has been turned on its head“, as a leading public interest organization wrote.  And it continues every day with the spread of the HOA legal scheme.

Can substantive HOA reform legislation happen?

The intrinsic, systemic defects of the HOA legal scheme and concept severely put a dent in any attempt to obtain a just and fair HOA government. A legitimate HOA government — “legitimacy” with respect to governance — requires fair and just laws, and the fair and just enforcement of those laws. Today, the laws are unjust and pro-HOA, and the Declaration of CC&Rs is an unconscionable adhesion contract by any standard.

As Prof. McKenzie made quite clear in Privatopia (1994), “Taken as a whole, these [HOA] powers permit the regulation of a wider range of behavior than any within the purview of a public local government.” (P. 129). So much for the argument made by homeowners in HOAs and pro-HOA supporters that they are against government interference. Apparently, more regulation and interference by HOA regimes unaccountable to state laws and state constitutions is a better deal than public government protections. I’m confused!

Please step back a moment and understand the advocate irrationality at work here. Advocates are going before the state legislatures and asking for public government protections, but claiming aloud that they do not want government interference! Am I missing something, or is this “interference” another irrational fear promoted by CAI and others? It is only the actions by your public government, under its police powers to insure domestic tranquility and to promote the general welfare, that can bring justice to homeowners in HOAs. The alternative is REVOLUTION!

Since 1992, when CAI decided to become a lobbying organization and oppose HOA reforms, CAI has controlled the playing field, yet advocates managed to achieved “token” changes from time to time. I do not say that these reforms were meaningless, but for the most part were, and are, hampered by the lack of enforcement, proper due process, fair elections statutes, etc. The structure remains oppressive.

I’ve pointed out that the Founding Fathers gave up on trying to patchwork fix the Articles of Confederation, and decided to create the entirely new Constitution of the United States of America. At least they were all basically for the new “contract,” even with the usual bickering here and there. Today, we have state legislators and a powerful national lobbying trade organization, CAI, opposed to any changes of substance to the HOA legal scheme.

I’ve also pointed out that at a meeting where the British Raj was offering token handouts for government reforms, Gandhi was adamantly opposed. The British informed Gandhi that, “India belongs to the British Empire,” to which Gandhi replied, “India belongs to the Indians.” Your homes and private property rights belong to you, the homeowner, and not to a private HOA government formed and permitted to function outside the US Constitution, making the HOA a second form of political government within this country.

There are many reasons for this state of affairs — this failure to achieve reforms of substance — that have been discussed by others elsewhere. There is the frequent attitude of advocates whose objective is actually, “Fix my HOA,” with little concern for the problems affecting all homeowners in all HOAs. Aside from these advocates, I discovered some time ago that one primary factor, and an important factor when going before state legislatures seeking reform legislation, was the belief by many that the HOA legal concept could be patchwork fixed; that almost all of the advocates and homeowners wanted their HOA to protect property values, and that they rejected hardline approaches that, through fears instilled by the opposition, they felt would “do away with” HOAs.

Prof. Fatovic wrote about homeowner acceptance of HOA restrictions in 2005,

Many home owners also insist that it is imperative to control the activities of their neighbors to maintain high property values. . . . It is also claimed that strict enforcement of the rules fosters a stable and predictable environment, which is an attractive feature to many prospective buyers seeking greater control over their environments.

In addition to these appeals to material self-interest and well-being . . . the strict enforcement of rules that curtail individual freedom is legitimate because 1) HOAs are voluntary associations formed by the consent of individuals 2) who want to maintain a particular way of life in a communal setting 3) that maximizes opportunities for participation and democratic self-government. (P. 12).

(Restricted Area: A Tocquevillean Critique of Homeowners Associations).

When going before state legislatures, most advocates in all states will continue the 20-year failed expectation that asking for token reforms will solve the problems with HOA governance. That they can “have their cake and eat it.” Time to get with it! Prof. Fatovic raised the following issues clarifying this acceptance of HOAs,

However, the history and current practice of CIDs belie this Panglossian [“all is for the best in the best of all possible worlds”] view of home owners associations. As noted above, the CC&Rs are not created by prospective homeowners in a contemporary state of nature, but by builders interested in protecting their own investments and minimizing their own costs. . . . Those who will actually reside in CIDs rarely, if ever, have an opportunity to participate in the formulation of the rules that will govern their lives. The deed restrictions are non-negotiable, take-it-or-leave-it offers. . . . There is also considerable evidence that many prospective homeowners are uninformed about the specific regulations. . . . [to which] they are “consenting.” The length of CC&Rs often deters residents from reading documents that may restrict their constitutional rights. (P. 15).

This reality, over the years, sadly, has failed to arouse state legislatures to fulfill the objectives and promises of the Declaration of Independence and US Constitution: to protect individual liberties, freedoms, privileges and immunities from government oppressions. State legislatures have ignored “one nation, with liberty and justice for all” in favor of special laws for special organizations that permit private governments to ignore and reject the US Constitution!

The very structure of the Declaration of CC&Rs and the HOA-protective laws prevent substantive reform legislation from happening! The very structure of the HOA concept must be changed with a loud outcry from homeowners. As I pointed out in the past, there are existing statutes dealing with special taxing districts that can be used, with some minor changes, to subject the HOA to the Constitution while retaining the benefits of the subdivision “real estate package” of special laws, special taxes, and special amenities for those living within the taxing district — the current HOA.  (See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters).

Until advocates stop being “bought off” by token reforms and come to accept the need for substantive HOA reform legislation, we can expect another 20 years of re-occurring HOA problems and increased dissatisfaction.  Advocates should keep in mind that the opposition is “defending the indefensible” and all that they must do is to push hard for substantive reforms.

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Send the President an email petition to hold HOAs subject to the Constitution Get your voice heard. Go to Petition.

“and justice for all” not available by HOA due process clause

The Dec. 1, 2011 Condo Issues.com blog by Tyler Berding has, as it title, the long hoped for condition sought by homeowners: “And Justice for All.”  Except the author, Steve Weil, fails to make the case that such is the condition in HOAs with their disgraceful, commonly found  due process clause: “after notice and an opportunity to be heard.” Period. Citing almost identical California law only supports the legislature’s pro-HOA authoritarian regime and its denial of fundamental protections of individual rights and liberties. Apparently he never saw the 1979 Al Pacino movie by the same title.

Weil goes on to make his “expert” legal view by citing the Aliusi v Fort Washington Golf Club case, which is not a private government HOA dispute. He speaks of 1) revealing the name of the accuser, 2) the submission of evidence, and 3) makes a good point on the details required by a proper notice, or “indictment,” of wrong-doing. He buries the principles of “and justice for all” in his discussion of issues 1 and 2 above, but, reading between the lines, agrees with the right to confront witnesses and to see and challenge the evidence. Weil concludes with, “the reason for “due process” is to give one who is the target of a hearing a fair chance to defend him/herself.”

However, he makes the pro-HOA assumption, an ipse dixit, that the board, the “jury”, is indeed interested in justice, for if it truly were, it would establish an independent tribunal for hearings. “Giving the owner this opportunity helps reveal the real and relevant facts and thus also aids the board’s decision-making process.”

Finally, the author well understands the moral and ethical aspect of legitimate government and laws. He ends with the need for homeowner acceptance of HOA justice with, “an owner who feels they were given a “fair shake” is much more likely to agree with the board’s disciplinary decision and comply with the governing documents.” It is a long established doctrine, going back to the Greek philosophers, that the legitimacy of government depends on fair and just laws, and the fair and just enforcement of these laws. It is well established that HOA private governments are unjust and authoritarian in structure with a façade of democracy — just because a member can vote does not make an entity a democracy.

There are no due process protections for homeowners in HOAs that would pass judicial scrutiny. Arguments that buyers agreed to be bound to the CC&Rs and bylaws is a mockery of the facts, as the selling process is ripe with misrepresentation — false statements, half-truths, and “no negatives.” See Truth in HOAs disclosure poll — please vote your conscience.

Too hot for NC HOA committee – withdraws legal-academic “experts”

The North Carolina Select House HOA Committee scheduled a meeting for Nov. 16, as stated by a NC Legislative Assistant,

The meeting notice indicates that the House Committee will “hear from legal and academic experts on matters pertaining to Homeowners Associations. Commentary from the public is also welcome.”

In response, I sent the committee co-chairs, among other issues, my frequently asked, but unanswered, questions:

I ask the legislators, the public interest organizations and policy makers to consider the following questions:

1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

3. When did “whatever the people privately contract” dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so. Does “constructive notice”, the “nailing to the wall”, the medieval method of notice, measure up to the requisite level of notice and informed consent to permit the loss of Constitutional protections?

4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?

I await your reply, or a reply from any of the legal-academic aristocrats.

The response from the committee later that day was,

The agenda for tomorrow’s meeting has changed, and instead of the legal and academic experts, it will be Research Staff from the General Assembly who are presenting information on past actions dealing with homeowner’s associations. There is NO public comment tomorrow.

There you go again! No one, including all those so called public interest nonprofits who claim that they are fighting for individual rights, has dared answered these questions. Welcome to the New America of HOA-Land.

See The CAI ‘Philosopher-kings’ are best to rule HOAs?