government – Page 13 – HOA Constitutional Government

Soldiers fighting for American democracy, only to return to HOA-Land

We continually hear about protecting our Homeland, defending our American way of life by fighting and dying in other countries. Showing other countries how democracy works. But, many of our brave defenders of America return to the states, not to a country anymore but to a “homeland.” A country being battered by states of the union proclaiming that they are sovereign states. Returning to their state with its public policy to protect and defend, not America, not individual rights and freedoms, but to protect and defend HOA-Land with its sanctity of contract, supreme over constitutional law.

One more time we are witnessing a returning veteran having to deal with his independent and protected principality, this time over a “cause celebre,” a child’s swing set. (Army Captain Sued by HOA Over Kids’ Swing Set). Others have fought over the right to fly the American flag or a military flag in honor of lost loved ones. But no, the HOA cannot tolerate an infraction of any of its rules no matter the reason.

The HOA president, a WW II veteran, was quoted as saying, “I’m not immune to the emotions of this,” he said. “[But] if you break the rules, you broke the rules. You can’t break the rules for your own personal reasons.” I guess this WW II veteran never understood who or what he was fighting for then. Instead, it appears he adopted much from his experience. Heil HOA-Land! HOA-Land uber alles!

It appears that our political leaders, with no WW II veterans, have forgotten the events leading to WW II, and why Americans fought on foreign soil. However, I guess this is different, because this is not Germany but America. And things like that just don’t happen here.

Milton Mayer best describes what is happening in America when he sought answers as to why the good, average people of Germany let the Nazi Party take control prior to WWII. His words are applicable to today’s HOA-Land. In 1995, in They Thought They Were Free, he wrote,

What happened was the gradual habituation of the people, little by little . . . . This separation of the government from people, this widening of the gap, took place so gradually and insensibly, each step disguised. . . . [Mayer believed that the good people went along] in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.

References

Memorial Day: American soldiers are defending a New America, one without democratic protections (2007)

HOA made no attempt to contact soldier in Iraq before foreclosing (2010)

Pres. Obama spoke of getting involved in democracy (2009)

Republican McCain and Democrat Obama preach democracy to the world, while 20% of Americans live under authoritarian HOA regimes (2008)

Pres. Obama and flying the flag in HOAs (2009)

Legislative protection of HOAs: replacing US organic law with HOA organic law (2012)

Why has pubic policy favored HOAs with their denial of member rights and freedoms??

Could it be the effect of a corporate – legislator alliance? Last year, ALEC, the American Legislative Executive Council, proposed model legislation that promoted local government by means of restrictive covenants. Yes, that’s right! And supported by none other than The Goldwater Institute.

A model law authorizing a transition from government-controlled local zoning and planning regulations to private restrictive covenants.

(See the 2011 report, Model Legislation, Decentralized Land Use Regulation Act).

The following quotes are from the Arizona Capitol Times article by Jeremy Duda,

ALEC, a conservative state lawmakers’ organization known for drafting model legislation for members to sponsor in their respective states.

“John Loredo, a former Democratic legislator, said ALEC woos lawmakers with trips, fancy meals and expensive gifts to promote its ‘extremist agenda.’

With many of the 56 Arizona legislators – all Republicans – who are ALEC members” [That’s 56 out of 90 legislators!]

See APS ending ALEC membership; SRP considers doing same.

If Trayvon HOA is sued, who should share the blame?

As indicated in the media and earlier (What is an HOA’s duty of care liability to its members and to all others?), the HOA could be sued under a number of legalities as determined by the facts. It is important to ask what factors led to the use of Zimmerman by the HOA. Under the legal doctrine could the homeowner members and even the public policies of the state that amount to a “hands-off” accountability toward HOAs — they can do no wrong — be held liable?

The latest media report (Homeowner association could be sued in Martin case) reminds everyone that the homeowners would most likely have to reach into their pockets.

“So, if you’re going to send out a newsletter saying, ‘Hey, he is the captain. Whatever he says goes,’ you have now basically rented a free police officer for your neighborhood,” Clark said. “He certainly took on that role with the homeowners association, and it seems to me that they recognized that.”

Who would pay in the event of such a lawsuit would probably be determined by the type of insurance coverage the association has, Clark said. Some policies may be wide enough to cover Zimmerman’s actions. If there is no policy or the policy in place is very narrow in its coverage, homeowners likely would have to pay out of their own pockets through higher monthly assessment fees because most associations don’t have very deep reserves, he said. He noted that policies typically cover about $1 million.

Many will cry out that it would be unfair and just to make the homeowners pay for the neglect, if true, by the board. But would it? It is obvious that the board of directors, the legal body responsible for managing the HOA would be first and foremost. But what about the homeowners themselves, who have oversight control through the election and recall of board members?

Under a “ re ipsa loguitor” (a form of circumstantial evidence that permits a reasonable person to surmise that the most probable cause of an accident was the defendant’s negligence) theory, do the homeowners have a share of the blame in actions by the HOA’s agents? Would the fact that HOA members are well known to apathetic with respect to the acts and actions of their elected boards absolve them of any failure to act?

In turn, the homeowners could argue that the homeowners’ hands are tied, for the most part, by the adhesion contract CC&Rs that permit an imbalance of powers to the HOA over the rights and liberties of the members, and by statute. That the ineffective pro-HOA state laws reflect a public policy in support of the survival of the HOA at the expense of the homeowner. (See The public policy of the states with respect to HOAs).

Laws that have no enforcement penalties against HOA board wrong-doing may explain some of the members’ apathy — “What’s the use?” You can’t fight city hall.” Laws that Alexander Hamilton called, “recommendations.” “If there is no penalty [for] disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” (Federalist #15).

It is difficult to understand the rationality for this hands-off policy that flies in the face of our system of governance, with its checks and balances and separation of powers doctrines felt necessary to restrain the power of government. “If angels were to govern men, neither external nor internal controls on government would be necessary.” ( James Madison, The Federalist papers, # 51).

In answer to the question posed here as to who should share the blame, the answer must be “all the above.” And state legislatures are in the power seat to make the needed changes to fulfill the special interest propaganda of healthy and harmonious communities. All that the state legislatures have to do is to do justice and SAY NO to the special interests!

The public policy of the states with respect to HOAs

In order to understand what this Commentary is addressing, here is a general definition of “public policy.” First, “public interest” refers to the “common well-being” or “general welfare.” “Public policy” is generally defined as,

A principle that no person or government official can legally perform an act that tends to injure the public.

Public policy manifests the common sense and common conscience of the citizens as a whole that extends throughout the state and is applied to matters of public health, safety, and welfare. It is general, well-settled public opinion relating to the duties of citizens to their fellow citizens. Public policy enters into, and influences, the enactment, execution, and interpretation of legislation.

Yet, with respect to HOAs we find that, over the years and in almost every state, the acts and actions, the absence of acts and actions, and the statements and communications by state legislators, government officials and court decisions have created a pro-HOA public policy. I summarized this policy as,

The Public Policy of the states with respect to Homeowners Associations.

1. To protect and defend the HOA;

2. That “you are on your own,” and not inform those now living in HOAs, or about to buy into an HOA, that they will not be protected by the state against HOA wrongs and that HOA violations will go unpunished;

3. To allow HOAs to violate contractual provisions and state laws, as such lawlessness does not constitute an issue of public interest warranting state involvement and protection;

4. To ensure the survival of the HOA, even if it requires the denial of rights and freedoms enjoyed by those not living in HOAs;

5. To protect and defend HOAs as if they were necessary for the security of the state, warranting the suspension of constitutional protections.

Was I wrong in 2006 about CAI and HOA independence?

My research into the historical role of CAI can be found in the 2008 The Foundations of Homeowners Associations and the New America, “Part II, The National Lobbyist for HOA Principalities.” Part II is subtitled, “Community Associations Institute: Dominating the Emergence and Acceptance in America of a Quiet Political Revolution in Authoritarian, Contractual Private Local Government.” It was primarily based on the 2005 book, Community Associations, partially funded by CAI and ULI and written by Donald R. Stabile.

I concluded Part II with,

In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors, on local community governance through the adoption of uniform planned community acts that perpetuate the current anti-American HOA governments. In effect, the super, privatized agency to replace the US Constitutional system of government.

This was written back in 2006, before the 2008 revision to an eBook and the 2010 addition of Part III.

The subsequent acts and actions by CAI include the behind the scenes support for imposing and promoting the top-down, “one law fits all,” UCIOA laws for adoption by the states. Its subsequent acts and actions also include positions taken before state legislatures over the years that support and reinforce the denial of due process and the equal application of the laws for HOA members. And there is CAI’s performance as presented in CAI continues to ignore the Constitution for the HOA constitution that clearly makes the case for CAI’s rejection of and secession from Constitutional government.

Some may call such behavior, seditious.

I don’t think I got it wrong.

Reference

Seditious: “Given to or guilty of engaging in or promoting sedition.”

Sedition: “Conduct or language inciting rebellion against the authority of a state.”