Tag: government

What would Pareto say about HOAs as “superior” decisions?

Are you familiar with Pareto’s Law, or Pareto Superior transaction? In the higher brainy types people like to talk about economics and wealth distribution, and government efficiency (I think CAI talks about efficient government in its materials).  Here’s what Pareto had to say.

(As these brainy types like  overly broad concepts and formulations, a “point” as used below, designates some measure of the conditions or status of society or government.  A “move” represents some government decision).

(i.) Pareto Superiority = A move from one distribution point to another is said to be superior when at least one party is better off and no one else is worse off. (This includes moves that benefit all parties; the essential concern is that no one is worse off after the move compared to welfare before the move.)

(ii.) Pareto Inferiority = A move from one distribution point to another is said to be inferior when at least one party is worse off (even if all others are better off).

(iii.) Pareto Optimality = There is no superior move possible from the current point of distribution. All possible moves are inferior in nature. Thus, no move can be preferred or defended by policy makers.

For us lowly folk, just focus on who benefits and who gets hurt. (In the world of servitudes, the law talks of the burden and benefited estates).  I can say quite empathetically that most of the HOA legislation cross this country are definitely Pareto Inferior decisions as many people are mandated to give up benefits for the benefits of HOA life, with its unequal application of the laws. Who can argue that no one is worse off by most HOA legislation?

But, what do I know?

Does civil government rule or does it submit to private HOA groups?

Dear Arizona Senators,

I continually am amazed at the opposition to this bill and the mistaken belief that any private contract can supersede legitimate local government. We all know that there is no absolute right to private contracts! HOAs are ignoring their role in a democratic society to obey the rules, as they like to say about homeowners in HOAs. They should follow the rules of this society and go to the planning board for a variance. Like they repeatedly say, “Homeowners can go to the courts, to agencies, to get a fair deal, etc.” but that’s not for the HOA that insists on making their own rules. It is simply a power play as to who rules the municipality.

The legislature has no choice but to uphold public government authority. If problems exist or changes are desired, since the HOA does not own the public roadway, the HOA can do what all citizens are entitled to do, go to their planning board and ask for a variance. The fact that the initial planning board approved these private roadways speaks to the retention of public government authority, otherwise it could have required private streets.

Please bear in mind, since CAI loves constitutional challenges as it fought over the proper delegation of authority to DFBLS, the court ruling in McLoughlin v. Pima that held,

However, it is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control

and

The legislature cannot abdicate its functions or subject citizens and their interests to any but lawful public agencies, and a delegation of any sovereign power of government to private citizens cannot be sustained nor their assumption of it justified, (Emmett McLoughlin Realty v. Pima County, 58 P.3d 39 (Ariz. App. Div. 2 2002), ¶ 7).

HOAs have usurped and assumed public government functions! And we all know accountability to and proper supervision by state the does not exist with HOAs to meet this constitutional requirement. They cannot have their cake and eat it, too! They cannot demand special consideration not to be held accountable and then do as they please.

Please make it clear to all persons that we are one state, indivisible with liberty and justice for all.  Please pass this important bill.

Note:  This bill, SB 1113 and its House duplicate, HB 2030, simple reassert public government control over public streets within an HOA subdivision.  HOAs have fined homeowners for any car parked in front of their homes.

The power of private HOA contracts, and other “voices of the people”

A scenario, not so hypothetical, and only to emphasize my point.

Suppose a group of ethnic people in a subdivision draft a set of “mother country” laws to govern the community. That among these contractual laws, by virtue of just remaining within the community and not moving out, are covenants that concern the proper treatment of marriage, of women, and of children. Anyone entering into the community is held subject to the community laws and Mother Country punishments. Will this private contract prevail over US law? Why not? HOA contracts do. What’s the difference?

Now suppose a group of homeowners living in an HOA do the same thing? Suppose they argue, as in the Dec. of Indepen., that the HOA government is illegitimate and invalid for various reasons including contract fraud, unconstitutional, and contrary to public policy. That they therefore reject the HOA government. Which contract shall prevail? The Mother County contract or the HOA? Can the HOA claim that their contract is superior to the will of the people in this group, as they have done in turn with civil laws? What’s the difference? Who is right?

Is this country, and your state, under the rule of law or the rule of man?  Where any group can write an agreement to circumvent the US and state constitutions.

Where are the volunteer HOA board members?

“We’ve been unable to even elect officers,” Freedman said during a state (WA) Senate hearing this week on a bill that would allow homeowners’ associations to lower their quorum requirement to 34 percent through the county court system.

(Homeowners’ associations ask state for help)

The downside of the great and glorious innovation in housing is hitting hard, because the defective legal scheme provides for no downside protections. As successful promoters well understand, and are so motivated, just sell the upside and don’t worry about the downside. Everybody eagerly bought into this sales pitch, and still are, including state legislators.

And lowering quorum requirements only allows the political machines and cliques to retain even more power of their failing HOAs.

As covered in this week’s CHDB blog by Patel (AZ CAI law firm in Arizona headed by CCAL president-elect Carpenter), Where are the volunteer board members? (No Board – Now What?). The end result is that HOA corporations require a board in order to legally function, and the state will wind up having to protect their “investment” in planned communities/HOAs by the courts appointing Receivers to run these HOAs, or let them fail. An alternative not clearly spelled out in the CAI blog.

The unaccountable “free ride” of doing as I please without fear of enforcement penalties under state laws is coming to a close as a direct result of the uncontrolled abuse within the HOA industry.  As a direct result of the actions of homeowner rights advocates, and the few media willing to tell it like it is, state legislators are beginning to see the light and put an end to these independent principalities.

NC media “tells it like it is” and reports HOA information

It is quite a pleasing surprise to see the North Carolina media cover the important HOA hearing that took place for 3 hours yesterday by the House Select HOA Committee, led by the Charlotte Observer. The NC media has lived up to its obligations to provide a free press that covers all sides of the issue, like it or not, which is necessary for the proper functioning of a democracy. That’s why “free speech” protections were made the First Amendment.

I congratulate the proactive NC HOA homeowner rights advocates for their successful campaign to get the message out. The policy makers and the buying public need the whole truth in order to make sound decisions. Among the leaders are Jim Lane, Jane Jordan and Ole Madsen. Keep it up! Keep the ball rolling, and remember Gandhi, “We must continue to provoke until they respond and change the laws.”

You know, having attended years of Arizona legislative committee hearings, every now and then I would get a whine from a legislator, “When are we going to hear the end of HOA complaints?” I answered, When the legislature gets things right and stands up for the Constitution, and that starts with an open mind to all the facts. Local community government must truly be “of the people, by the people and for the people,” and not by profit-seeking developers with their top-down cramming of covenants, and government officials selling out their obligations to the people for a few shillings.

The perceived benefits of the planned community real estate package of ‘district’ ordinances and taxes and ‘private’ amenities can remain under a government that retains our constitutional system of democracy.  There are no excuses for this not to happen.  It is only when the facts get out for an open discussion will this happen.  Thanks again to the NC media “telling it like it is.”

See, advocate’s 10-point statement to NC HOA committee,  HOAs today do not exist for the benefit of Homeowners,  Statement to NC Select HOA Committee.