Tag: democracy

HOA political dynamics: totalitarian democracy

HOA political dynamics: authoritarianism & totalitarian democracy

First, allow me to clarify some important concepts and definitions that I have employed to help in understanding my positions and views.

  1. The term “HOA” is commonly used in 2 different aspects. While commonly used to refer to the alleged community, in reality the “community” is a real estate “package” of homes, landscaping, amenities, and rules.
  2. “HOA” more aptly applies to the association itself, which is the de facto – in fact – political governing body of the subdivision or real estate “package.”
  3. “Government,” meaning political government, is defined in its general sense as “the person or group that controls and regulates the people within a territory.” Since your subdivision is a territory, that makes the HOA a truly political government.
  4. “Private government” is a de facto government as defined above not incorporated under municipal statutes but under nonprofit corporation statutes. As such, it is a functioning government unrecognized by the state as Cuba had been for years.
  5. “Quasi-government” simply means for all intents and purposes having all the attributes of a municipal government, except the names have been changed to mislead the innocent public.
  6. “HOA-Land” is my descriptive term for “the collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States.”
  7. “Structured tribalism.” Tribalism is a term currently in vogue to describe divisiveness in America. “Structured tribalism” extends that view to describe the intentionally planned policy for the acceptance and control of HOA-Land.[1] It views the fragmented HOA-Land as distinct villages and clans.

While the CC&Rs and declarations contain abundant boiler plate, each is a separate legal agreement and as such  the HOA can be viewed as a village.  The conglomeration of master planned communities or HOAs developed by the same developer can be seen as a clan.  All stemming from the HOA “bible,” the 1964 Homes Association Handbook.[2]

In an earlier editorial on civic responsibility,[3] I questioned the allegiance, the loyalty, and the obligations of HOA members.  Was it to the US Constitution or to the HOA “constitution,” the governing documents?  I answered that it appeared to be the HOA first and foremost – secessionist — creating division within the country.

This was followed up by the editorials[4] where I examined the attitudes, beliefs, and values of the HOA members themselves.  I focused on the aspect of long-term indoctrination by the HOA School of Public Enlightenment and Propaganda, my categorization. The question yet to be addressed was: What role did the members play themselves in terms of a predisposition to accept authoritarian, private governance?

By serendipity, or by destiny, I just received an email discussing authoritarianism and totalitarian democracy.[5] It argued that Americans were accepting authoritarian control, which seemed  to be a cause for the behavior of cult-like, dogmatic member acceptance of the HOA board’s (BOD) actions and attitudes.  It seems that the more predisposed to authoritarian control the more the member acted as a diehard, dogmatic, true-believer in the BOD.

“There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.

“These “authoritarian followers,” as social science labels them, are also highly ethnocentric, thus frequently racist, nationalistic, deeply partisan, and threatened by “the other.” . . . Other testing shows these people are also highly defensive.”

The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law.[6] The authoritarian nature of HOA-Land is masked by a thorough indoctrination[7] that the real estate subdivision is a democratic community (although the HOA is not a municipal entity but a private nonprofit association)  because the members are allowed to vote, as meaningless as it is.

But the HOA is truly a totalitarian democracy.  To paraphrase the founder of fascism, Benito Mussolini, “All within the HOA, nothing outside the HOA, nothing against the HOA.”   The marketing and promotion of the HOA model of governance has been conducted in a very smooth manner: no negatives, “carefree living,” playing to the emotions and desires of the members, misleading statements to induce buying, and empty promises of “maintaining property values, ”etc.

Here’s are some of J. L. Talmon’s views of totalitarian democracy as found on Wikipedia (my emphasis):

“A totalitarian democratic state is said to maximize its control over the lives of its citizens by using the dual rationale of general will (i.e., “public good”) and majority rule. An argument can be made that in some circumstances it is actually the political, economic, and military élite who interpret the general will to suit their own interests.

“A totalitarian democracy . . . retains full power of . . .  the right of control over everything and everyone. Maintenance of such power, in the absence of full support of the citizenry, requires the forceful suppression of any dissenting element except what the government purposely permits or organizes

“It is [the member’s] duty and responsibility to aid his compatriots in realizing [this right of control]. Moreover, any public or private activities that do not forward this goal have no useful purpose. Citizens of a totalitarian democratic state, even when aware of their true powerlessness, may support their government.” 

Getting back to HOA-Land, it becomes disturbing that the application of authoritarianism and totalitarian democracy philosophy seems to fit quite well. Too well at that!  But these views of HOA-Land are a valuable enlightenment because it takes HOA-Land out of the hands of the propagandists, out of the shadows, out of the darkness of Plato’s cave.[8]  It reveals reality.

 

References

[1] “In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors,”  CAI manifesto: CAI’s plan for HOA-Land in America, 2016.

[2] See my 2006,  Analysis of The Homes Association Handbook.

[3] Civic responsibility vs. HOA member responsibility.

[4] HOA social dynamics.

[5] Verdict” email from Justia.

[6] “Authoritarian” can be defined as “a form of government characterized by strong central power and limited political freedoms. Individual freedoms are subordinate to the state and there is no constitutional accountability and rule of law under an authoritarian regime.” Wikipedia.

[7] Supra n. 2.

[8] “In the Allegory of the Cave, Plato distinguishes between people who mistake sensory knowledge for the truth and people who really do see the truth.” (See Philosophyzer).

Resurrecting the argument for a homeowners bill of rights

This demand for a homeowners bill of rights by homeowner rights advocates had its play back in the 1997 – 2008 period, some 10 years ago. There was:

  • the AHRC’s 1997 bill,[1]
  • Lois and Samuel Pratt’s 1999 bill,[2]
  • my 2000 address to the AZ Legislature[3],
  • the 2006 AARP bill of rights,[4]
  • and my 2008 “Members Bill of Rights” amendment to CLRC.[5]

And there are undoubtedly others that I missed. Deborah Goonan recently re-posted a 2015 article[6] speaking of no Bill of Rights and constitutional violations of the 14th Amendment.  In 2017 the California Legislature adopted a limited bill of rights dealing with member political free speech.[7]

A new look at homeowner rights is needed, one that takes a down-to-earth approach and focuses on the common CC&Rs covenants and bylaws that read like,

  1. If there are conflicts between the provisions of Arizona law, the Articles, the Declaration, and these By-Laws, the provisions of Arizona law, the Articles, and the By-Laws (in that order) shall prevail.
  2. these By-Laws [Declaration] may be amended only by the affirmative vote or written consent, or any combination thereof of Members representing at least 51% [67%] of the . . . votes in the Association.
  3. no amendment may remove, revoke, or modify any right or privilege of Declarant . . . without the written consent of Declarant

Over the years I’ve discovered that the courts have universally upheld the broad amendment covenant as generically stated in (2) above.  The basis of their decisions is the very dangerous and overly broad interpretation that homeowners agreed to be bound[8] by the CC&Rs and bylaws.   Note that (3) above carves out an exception for the Declarant that requires his explicit consent, while accepting the majority rule principle in regard to the members. But, this “acceptance” to be bound by majority rule violates a fundamental right of citizens in regard a governmental “taking” or eminent domain action.

In many instances the courts have required 100% consent when the amendment adds new covenants, covenants not found in the CC&Rs, the most notable being changing from a voluntary HOA to a mandatory HOA.  This would be inconsistent with (1) above that holds that the law of the land prevails, and which of course, the buyer also agreed to. But, CAI comes to the rescue and prevails in the courts that the CC&Rs and bylaws contain valid waivers and surrenders of fundamental rights, even to the extent of accepting implicit (not stated but presumed consent) waivers and surrenders as valid.

Hold on! It is long held legal doctrine that the surrender and waiver of these rights must be explicit, one by one. And that, under contract law, there must be a meeting of the minds with full consent and no misrepresentation in the buying process. I have concluded that,

Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.

The point I wish to make is that the absence of any meaningful bill of rights that genuinely protects the rights of HOA members is ab initio (from the beginning) a rejection of democratic norms and institutions.  The HOA cannot, therefore, be considered democratic by any means regardless of the propaganda by CAI and other pro-HOA supporters.

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis.

. . . .

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable.[9]

Simply unbelievable!  (In face of subsequent advocate criticisms, CAI began speaking of HOAs as a business, and we are seeing more and more statements that when a homebuyer signed his real estate contract, he was actually investing in a business.  Unbelievable!  Shades of George Orwell’s NewSpeak from his novel, 1984, where people are indoctrinated to hold 2 opposing views at the same time, and be at peace.)

What is intentionally absent — yes, intentionally otherwise the renowned CAI layers would have to claim incompetency regarding the law – is a Homeowners Bill of Rights.  Can you imagine that if the HOA framers, those stakeholders, of the HOA concept had actually met and discussed with knowledgeable and informed public that there would be protections for homeowners?  Can you imagine?

What the absent, yet informed public, would have added was a Preamble to an Amendment to the CC&R that would have been like that found in the Bill of Rights:

 Preamble to the US Bill of Rights

“THE Conventions of a number of States, having at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution:”

The basis for the BOR was a distrust of government and the need to further protect the people.  Regarding the HOA documents, the 9th and 10th Amendments, as applied to the HOA legal scheme, would prevent the broad interpretations that have been and are continuing being held by the courts.  No more generalities, except in favor of the members.  If it was good for America over 230 years, it must be good for HOA-Land!

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The 9th Amendment simply says that if it ain’t specified – enumerated — in the governing documents, it belongs to the membership.  No more broad interpretations of waivers and surrenders of rights.  The 10th Amendment simply says that if the members did not explicitly agree to certain HOA powers (delegated to), it belongs to the membership.

This is the argument and approach needed to get a Homeowners Bill of Rights accepted by state legislatures.  It should be a national campaign by all advocate groups in all states for their next legislative session.  There is time to organize and prepare.

 

References

[1] See “Short History” in co-opting the HOA “homeowners bill of rights”, Elizabeth McMahon, 1997.

[2] See A BILL OF RIGHTS FOR HOMEOWNERS IN RESIDENTIAL COMMUNITY ASSOCIATIONS (1999).

[3] Statement to AZ Legislative Homeowners Association Study Committee, 2000.

[4] A Bill of Rights for Homeowners in Associations, AARP HOA Bill of Rights, David Kahne 2006.

[5] Supra, n. 1. “CLRC” is the California Law Review Commission.

[6] Let’s Get Some National Attention on HOA, Housing Issues, Deborah Goonan, 2015 original post.  

[7] A California true HOA Bill of Rights (SB 407).

[8] For a summary of the issues regarding the agreement to be bound position, see “Consent to be governed, No. 4”, HOA Common Sense: rejecting private government.  The notes contain very important authorities on this issue.  (In only one case did a court reject this position because it felt that the amendment exceeded the reasonable expectations of the homeowner.  For example, having part of their assessments go toward a private entity unrelated to the HOA).

[9] CAI CEO Skiba in his April 2, 2008 Ungated blog entry.

The Two Americas: Constitutional America and HOA-Land

On this Memorial Day, May 30, 2016, America is fighting battles in a number of countries where our sons and daughter and our brothers and sisters have paid the ultimate price defending the United States of America, and the democratic values and beliefs of justice and equality for which it stands.

Yet, we have those in America firmly believing that the Constitution protects free speech, but not when private contracts are involved. And they support private agreements called Declaration of Covenants, Conditions and Restrictions (CC&Rs) that cross over the line between purely property restrictions to establishing unregulated and authoritarian private governments. Florida attorney Ryan Poliakoff (brother of the late CAI activist attorney Gary Poliakoff) is one of them. These HOAs (an all-inclusive term) operate outside our constitutional system of government.

In his May 28th column on Florida Today, he asks and answers the title question, “Did you sign away your free speech with HOA?”[1]  with a firm YES.   Why and for what system of government are our troops fighting and dying for?  For the America of our Founding Fathers or for the misguided special interests who have a financial interest in HOA-Land, and who act and function as an oppressive oligarchy. (It is estimated that 20% – 23% of Americans live under HOA private governments). In our case, it means rule by the few special interests who lobby nationwide for pro-HOA legislation to protect the status quo.

I’m shocked at Mr. Poliakoff’s biased and simplified explanation and justification for HOA private governments; after all, he is a lawyer and dares speak of The Bill of Rights. He writes,

Private entities have no obligation to respect your right to say whatever you want, no matter how offensive it may be. . . . So if the rights and obligations of a mandatory membership community are contractual, and not municipal, shouldn’t they be allowed to restrict speech?

The most blatant misrepresentation of the facts occurs when he argues (emphasis added),

Personally, I agree with the majority position. I see no reason that persons who voluntarily bind themselves by, knowingly, buying property subject to restrictions should not be bound by those restrictions (unless the state passes laws that expressly limit the association’s power, such as the condominium laws that protect owners’ right to assemble, or the federal laws that guarantee every person the right to fly an American flag.)

Otherwise, I view deed-restricted communities as guided and governed by contracts, and I believe they should be treated, generally, the same as any private contract between individuals”.

I vehemently object to these misleading statements by an attorney!  Apparently he has failed to read, or refuses to rebut, arguments that I raise with respect to 1) alleged agreement to a contract,[2] 2) HOAs as de facto governments hiding behind the privacy of the questionable CC&Rs contract,[3] and 3) the application of US Supreme Court criteria for a bona fide surrender/waiver of constitutional rights, including due process and the equal protection of the laws, which the HOA legal scheme fails miserably.

Furthermore, he should well know that the alleged contract is not between individuals or other HOA members, but between the HOA and the individual owner. Yet, he admits, by implication, that all HOA reform legislation is an attempt to restore lost rights, rights that belong to all Americans.

Mr. Poliakoff also informs his readers that he co-authored the 2009 book, New Neighborhoods[4] that contains the very same attitude and view towards independent HOA principalities as professed in this article.  In my Amazon book review I wrote (emphasis added),

Ellen Hirsch de Haan, former CAI president, acknowledges that the biggest problem for the successful operations of these associations “is the lack of education among the consumers who are buying homes and units . . . . And the authors inform their readers that, “These neighborhoods could not operate without . . . the owners, who give up certain traditional homeowner rights for the good of the community.” “This is good”.

“The Poliakoff’s continue, informing their readers that “out of anarchy came utopia“, and quote an appellate court dicta that “each owner must give up a certain degree of freedom of choice which he might otherwise enjoy living in a separate, privately owned property.” The authors define the purpose of this book as, explaining “the workings of these communities — these New Neighborhoods — . . . and to let purchasers know just what they are getting into.”

I believe that Mr. Polikoff has failed miserably to fully educate the legislators, the media and the home buyers in both his book and in his recent article, both of which present the special interest “party line” and not the facts, the whole facts, and nothing but the facts.

This is not new or unique to Mr. Poliakoff.  CAI has recently released a series of white papers, which I collectively refer to as the CAI Manifesto.[5]    Kelly Richardson, national CAI Trustee and Realtor wrote about socialistic housing and submitting to the will of the community because, allegedly, that buyers had openly agreed to the surrender of their rights.

That’s the root of so many of the HOA horror stories we’ve all heard, as owners normally do not realize that their submission to the will of their new community is accomplished by the automatic application of covenants running with the residence. . . . The most caustic critics of HOAs in general are actually opposed to the concept of joint ownership. This is a completely unrealistic position . . .[6]

 

 

The positions taken in support of HOA-Land, as evidenced above, constitute a political movement — as any other recognized movement — that consists of separate and disparate collection of private governments not subject to the constitution because of a “verboten,” hands-off attitude, and have created 2 Americas.   The divide is just a  dangerous as a country divided over political philosophy as witnessed in our current political campaign.  It must not be allowed to continue regardless of what party or person will sit in the White House.

References

[1] Did you sign away your free speech with HOA, FloridaToday (USA Today), Ryan Poliakoff , May 28, 2016.

[2] Consent to be governed, No. 4 of HOA Common Sense: rejecting private government.

[3] HOA Governments in fact, No. 9, Id. See also, CC&Rs are a devise for de facto HOA governments to escape constitutional government.

[4] New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.

[5]  CAI manifesto: CAI’s plan for HOA-Land in America;  See also, Deborah Goonan’s  critique in “HOA laws and Free Speech, Right to Know”.

[6] Realtor magazine publishes HOA socialism by CAI Trustee, quoting A Note of Caution About HOAs, RealtorMag, Official Magazine of the National Association of Realtors, February 2015.

Letter to Sen. Rubio on necessity of national HOA reforms

August 10, 2015

open email letter

Dear Senator Rubio,

In 2008 as FL Speaker of the House you created the Select Committee on Condominium and Homeowner Association Governance (FL legislative HOA committee gets subpoena power).  I attended the Tampa hearing and edited the public domain video of the hearing.  These clips can be found at http://YouTube.com/HOAGOV.

Your help, as candidate for the presidency and as the future President of the United States, is needed to return some 20% of Americans to the American Zone. HOAs are unconstitutional private governments strongly supported by special interests with the help of state legislatures, as you may well know.  Please understand that HOAs can function as local state entities that will provide due process and the equal protection of the laws to homeowners who were mislead about what HOA life is really all about.  It is a national issue!

For your easy reading, and that of your staff, the fundamental constitutional defects are presented in 3 documents that contain substantial legal authority and evidence.

Please read:

The future of America is the continued social and political decay of the principals and values that founded this great nation unless you continue HOA reforms on a national level.  America must be protected from constitutional rejection by means of alleged private contracts that cross the line from property interests to the creation of private governments, governments that are not subject to the 14th Amendment!

You can awaken the people to the silent special interest and state support and acquiescence of private authoritarian governments by calling attention to the un-American HOA legal structure during your campaign.

Respectfully,

George K. Staropoli
602-228-2891

HOAs are a throwback to medieval feudalism

Preposterous?  A wild thought?    You say that: according to the national HOA business ‘educational’ trade group, HOAs are the best example of local democracy at work [1].  So, make your point, convince me!  OK, I will!

Please see the table,  A comparison between fiefdoms and HOAs.

Note 1. “Associations are the most local form of representative democracy, with leaders elected by their neighbors to govern in the best interests of all residents.”  Community Associations Fundamentals, item 2.