Tag: democracy

Court holds HOA elections are a matter of public interest

A California appellate court held that HOA elections are a matter of public interest and annual meetings are a public forum. Candidates are limited public figures with respect to the elections. Therefore, the anti-SLAPP law applied with respect to statements made by the candidates and their speech is protected.  A defamation lawsuit based on statements made by the candidates must survive a motion that the lawsuit was made to stifle public participation.

 

In Cabrera v. Alam the court held,

 

We reverse and remand with directions to grant the anti-SLAPP motion. Defendant carried his burden of showing the defamation claim was based on protected activity under section 425.16, subdivision (e)(3). We hold defendant’s statements were protected activity because they were made in a public forum at a homeowners association’s annual meeting and concerned an issue of public interest, namely, the qualifications of a candidate for office in the association. Plaintiff failed to carry her burden of showing a probability of prevailing on the merits of the defamation claim. Having thrust herself into the controversy surrounding the election of the association’s board of directors, she became a limited purpose public figure who was required to show defendant made the allegedly defamatory statements with malice. Plaintiff failed to produce any evidence showing defendant made the statements knowing them to be false or recklessly disregarding their falsity.

 

Another step toward the recognition of the reality that HOAs are indeed de facto governments and need to be recognized as state actors, and brought under the protections and prohibitions of the US Constitution.

the Truth in HOAs poll message is quite clear

In the Introduction to the Gutenberg Press ebook publication of Aristotle’s Politics, A. D. Lindsay wrote, “The existence of force is for Plato and Aristotle a sign not of the state but of the state’s failure. . . . the state represents their common agreement, force their failure to make agreement complete.”

The champion of the people, Thomas Jefferson in his 1801 inaugural address, stated, “That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.”

Evan McKenzie, in Beyond Privatopia, warns that, “Shifting political authority to relatively invisible boards of directors who are basically beyond democratic accountability but who control enormous amounts of money may be a dangerous practice.”

In contrast to those CAI, industry sponsored “satisfaction with HOA” surveys, a very direct and simple poll is being conducted on the internet. It addresses the issues of the legitimacy of HOA governance in regard to the validity of a genuine consent to be governed, and a surrender or waiver of an individual’s rights, freedoms, privileges and immunities. It asks the readers directly, ”Would you sign, or would have signed, the Truth in HOAs Disclosure Agreement?” (See Truth in HOAs disclosure poll — please vote your conscience<.

After just 4 days, the results have shown a steady outcome, with at this writing,

  • 83% responding to, “NO — Would anyone in their right mind knowingly sign such an agreement?”

  • 16% responding to, “NO — I won’t agree to accept such conditions although I want to protect my property values.

  • And one lonely vote for, “YES — I readily accept the conditions, and I want to protect my property values.”

  • and no responses to, “YES — I had no choice for comparable housing, so I accept the conditions.”

The absence of any support for choosing an HOA for its alleged property value protection must be noted. This absence allows for some important conclusions. Nobody has gone on record, even anonymously, to support what many have expressed as the outrageous propaganda by the pro-HOA factions in our society. This propaganda, in its fullest argument, declares that the people openly embrace the HOA concept and fully and knowingly consent to be governed by the HOA regime in every way. The lack of any supporting response, however, seems to indicate some embarrassment of having to admit to a falsehood. To indicate some feeling of guilt. A realization that if they respond YES that they will be rejecting our democratic system of government for empty promises of a few pieces of gold So, they cannot admit to it by voting YES.

It is also interesting to note the 16% response to rejecting the Agreement, but affirming the desire for protecting property values. Not presented here, but there are other means of providing for the HOA benefits that do not violate our principles of democratic government. One such proposed mechanism exists today, but the people have been conditioned to accept repressive private government over no public government with all its protections. (See my 2004, A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters<.

It appears, in spite of outcrys and laments of defending the Constitution, that state legislators have adopted the attitude of the Emperor’s council of advisers in The Emperor’s New Clothes, and allowed themselves to be swayed by fast talking self-anointed pundits. They have allowed this state of affairs to exist, and to continue to grow. Example: in Beyond Privatopia McKenzie tells of a Madison, MS ordinance (10-406.14, 2006) that makes it unlawful to violate the CC&Rs and allows the HOA to file a civil court complaint.

And he presents the first steps in an explicit symbiotic relationship between cities and HOAs with the creation of a “Congress of Neighborhoods<"in Gilbert and Chandler, AZ that “formally links cities with associations” in a number or areas, including HOA educational seminars. How about constitutional law and government 101 seminars? None. The “Congress” sounds like the beginnings of The United HOAs of Arizona

The message of this Truth in HOAs Disclosure Agreement poll is quite clear. And again I ask, “Who will protect the people from powerful factions?”

Truth in HOAs disclosure poll — please vote your conscience

Please let us know where you stand on the HOA issues of “agreement to be governed” and “consent to obey.”   If the following Truth in HOAs Disclosure Agreement were required to be signed at the time of purchase, would you sign or not sign your waiver and surrender of your rights and give you explicit consent to be governed?

Homeowner Association (HOA)
Buyer “Truth in HOAs” Disclosure
&
Consent to be Governed Agreement

 

By my signature below, I , the undersigned Buyer, have read and understood the restrictions imposed upon me by law and the courts as a member of an HOA, and have agreed to the waiver and/or surrender of my rights explicitly contained below. All other rights not expressly prohibited below or expressly granted below to the HOA are retained by me.

I, the undersigned Buyer, and the undersigned HOA by its President, hereby acknowledge and consent to the following:

(a) that the declaration of covenants, conditions and restrictions (CC&Rs), the bylaws, and any written rules and regulations are treated as binding private contracts by the courts; and that to enforce my rights under or compliance with the governing documents I must file suit in civil court, and that such a civil suit involves no state agency official, attorney general, or county attorney ;

(b) that under current court holdings, I am legally bound by any and all amendment to these documents validly enacted in accordance with the governing documents, with or without my vote or consent, provided that they are found not to be unreasonable, contrary to public policy or unconstitutional; and that an amendment may alter the CC&Rs at the time of purchase, binding me to
the amendment without my consent;

(c) that under current law, there are no substantive penalties against violations of the governing documents or state laws by the officers or directors of the association sufficient to serve as a detriment to future violations;

(d) that the association (HOA), as a private entity and not an arm of the state, is not subject to the restrictions and prohibitions of the 14th Amendment to the US Constitution that otherwise protects the rights of the people against actions by public government entities; and that the governing documents in all legal practicality serve as the subdivision’s “constitution,” taking precedence over
state laws and the state and US Constitutions, unless specifically denied by any such laws or legal precedence;

(e) that the governing documents contain due process protections, in instances of alleged violations of the governing documents, that are less than as required under public laws and civil court procedures, that are lacking requirements for an independent tribunal, such as the right to introduce or confront witnesses, or the right to introduce and challenge contrary evidence;

(f) that in any dispute with the HOA, and contrary my rights under the federal fair debts collection practices act (FDCPA), the courts require continued payment of your assessments even while the dispute continues;

(g) that there are no equivalent clean or fair elections procedures as found in public government elections, to protect the integrity of the HOA election process; and

(h) that the practicable ability to institute member “initiatives” and make changes to the governing documents or ACC rules is highly dependent upon the active participation of my neighbors who, as a member of an HOA, have been described as indifferent and apathetic; and that there are no provisions for HOA board “referendums” on issues that ethically should be put to a vote of the members.

CAI firmly supports the New America of HOA-Land

This issue of the Community Association Institute’s house organ, Common Ground, has the strongest language for the triumph of private agreements to supersede the US Constitution, making the Constitution a meaningless piece of paper, a meaningless document, and an empty compact between the people and the state. “The right to regulate activities within a community association is an embodiment of our constitutional rights to enter into agreements with our neighbors” so proclaims CAI. It implies that the community association is just another corporate entity, and not the governing body that regulates and controls the people within its borders, which is the essential ingredient that distinguishes a corporation from a political government, a state.

CAI is falsely arguing that anybody can write an agreement to circumvent the Constitutional protections that forms the basis of our political system of government. In essence, CAI is advocating the rejection of the Constitution as the supreme law of the land and you and your neighbor can draft a new constitution as you see fit, ignoring the original Founding Fathers document. And so can another group, and another, and another, and so on. Why Is CAI arguning so? Perhaps because as private organizations, HOAs are not bound by the Constitution and can do as they please – the Constitution be damned!

CAI bitterly complains in this piece about one “disgruntled resident “[who] used the power of government to limit the freedoms of association residents” and caused Arizona to use its legitimate police powers to regulate people and organizations, and to protect the constitutional free speech rights to fly the Gadsden Flag in HOAs

And, seemingly desperate, CAI lets its readers know where it stands: The one constant is that your colleagues at CAI, working through 33 state legislative action committees, are fighting to protect associations and ensure a healthy business environment for the companies that support our communities” (Emphasis added). CAI does not stand for the people, but for the undemocratic governing body of subdivision territories known as homeowners associations. And, CAI says it loud and clear, making it quite explicit: CAI is “fighting to . . . ensure a healthy business environment for the companies that support our communities.”That is, for their members, the lawyers and their self-proclaimed professional management firms. Let the Legislators hear well!

CAI is firmly behind the New America of HOA-Land of independent principalities unaccountable to any state in the Union. A balkanized hodge-podge of independent “city-states, under a parallel constitution known as the Uniform Common-Interest Ownership Model Act (UCIOA) and its variants across this country. Brought to you by the legal-academic aristocrats who have avoided any discussion of secession or repudiation of the principles of our American system of government. But, running to the state for protection as any principality must do. And the civil government of the state abdicates its duties under the US and state Constitutions, and protects these regimes against its own citizens.

“Fees, Finances and Flags,” Common Ground July-Aug 2011, CAI.

“Beyond Privatopia” – understanding the economic theories that brought about the New America of HOA-Land

Beyond Privatopia: Rethinking Residential Private Government, Evan McKenzie (Urban Inst. 2011)

 

Once again, a short book, 168 pages, by McKenzie is packed with very important information for those seriously interested in understanding the HOA phenomenon. A must reading for the public interest nonprofits, the legal-academic aristocrats, and all state legislators who have failed over the years to face the realities of the social and political impact of HOAs on our democratic system of government.

 

In his Preface, McKenzie proclaims that “this book is written in my own unusual hybrid perspective”, having one foot in the legal-academic club and the other foot amongst the homeowner rights advocates. He names names of leading advocates (p. 121, n. 4): Shu Bartholomew, Jan Bergemann, Pat Haruff, George Starapoli [sic], Fred Pilot and Monica Sadler. Yet, my impression so far is that the book is addressed to the legal-academic aristocrats to remind them that America was not founded on the state being an neoclassic economic force, a business, concerned with efficiency, productivity, wealth redistribution, or rational choice But, that America was founded on principles of democratic government as set forth in the Preamble to the US Constitution (my interpretation):

We the People of the United States, in Order to form a more perfectUnion, establish Justice, insure domestic Tranquility, provide forthe common defense, promote the general Welfare, and secure theBlessings of Liberty to ourselves and our Posterity . . . .

In Chapter 3 McKenzie discusses the libertarian views of Robert H. Nelson and Nozick, among others. He references Nelson with, “They contend that CIDs [McKenzie’s generic term for HOAs] are more efficient and more democratic [my emphasis] than municipalities and should replace them.” (p. xi). He present’s Nozick’s 1974 argument (p. 47) for “minimal states” that lead to “private protective associations.” Minimal states and protective associations have become today’s call for less public government and the CC&Rs enforcement agency known as the HOA.

 

Nozick’s defense of minimal states, according to McKenzie, is that “This [minimal] state would be legitimate, even though it may infringe on the liberty of individuals [my emphasis], because from the bottom up it would have been based on voluntarism and the rights of contract.” Sounds eerie doesn’t it? We hear these arguments today in defense of the HOA legal scheme, but as McKenize argued, they are based on myths. “The notion that individual owners agreed among themselves to perform these services for each other, and subsequent owners took over from them, is entirely fictional.” (p. 60).

 

Enough for now. More to come . . . .