Tag: government

Gross injustice: HOA declarations not a contract, but held binding as a contract

In Epernay CA v. Shaar the Texas appellate court again avoided declaring that a declaration of CC&Rs is a contract, but use the carefully worded, CC&RS “are subject to the general rules of contract construction,” followed by, “In construing contracts. . .” Other courts have declared CC&Rs to be a contract without providing evidence, making the declaration a dicta (ipse dixit made by a judge). Others have referred to cases that, themselves, are also dicta utterances.

 

The reason for this is that HOA governments under CC&Rs are held to be subject to the laws of equitable servitudes, which simply requires the filing of the CC&Rs with the county in order to be binding on the unsuspecting homeowner. He doesn’t even have to read the CC&Rs or even explicitly consent to agree in general, or to agree with the surrender or waiver of all his rights stated or implied in the CC&Rs. If indeed CC&RS were to be considered a bona fide contract under contract law 101, they would be thrown out the window.

 

See the responses to the Truth in HOAs poll where 92% said they would not agree to the conditions in HOAs as disclosed in the Disclosure Agreement.

 

Additionally, if the requirement for the genuine consent with full knowledge, and the absence of misrepresentation, were applied under contract law, the CC&Rs would be thrown out the window.

 

Why have the courts followed servitude laws over constitutional law with its requirements for the equal application of the law – contract law – and due process protections against special laws for special private organizations? Why have the courts or state legislatures failed to declare HOA governments to be an unconstitutional delegation of legislative powers to private organizations? Or to be state actors under the criteria set forth by the US Supreme Court (and not the ancient and misplaced holding of the “public functions” test)?

 

If people can get together a draw a contract, call it CC&RS, and operate as private governments not subject to the 14th Amendment, why do we need constitutional government? That’s secession, isn’t it?

Truth In HOAs Poll update: 9% would surrender their rights to HOA

Aug. 15, 2011 results

The initial response after 1 day to my Truth In HOAs Poll of July 12th was a 98% vote of NO, they could not agree to the Disclosure Agreement. Only 1 YES vote was recorded. Understanding that this may reflect an anti-HOA audience, I allowed the Poll to remain open this past month (and will remain open) to record any change in attitude by the respondents, noting that pro-HOA polls sponsored by CAI and RIM have recorded a 70% “satisfied with their HOA” response.

The Truth In HOAs internet poll is freely available to all on the internet by simply visiting my Commentaries blog, and as notified by my numerous email list posts, my responses to homeowner inquiries, and links provided in my comments to many online media articles. It s not a telephone calling from a pre-selected list.

Within 2 weeks the YES votes for both categories dropped somewhat to 95% with a split between “YES, I would sign” regardless and “YES, I would sign, but I want property value protections.” Today, a month later with a small increment in respondents, the YES responses come to 9% and the NO response to 91%. The split in YES votes shows an small widening with the unconditional YES dominating.

It’s hard to believe that there are some people who have no concern for their rights. This 9% represents “hard-liners or “true believers.” The results are unmistakably clear as homeowner rights advocates have been shouting for years – the support for a valid consent to be governed by the courts and state legislatures is based on a false and misguided view of the authoritarian, private government HOA regimes that are unaccountable to the legitimate and legal constitutional public government.

The HOA supporters, including CAI, do not have clean hands! It’s well beyond time to stop this mockery of the Constitution and mockery that HOAs represent the true voice of the people. And, the state legislatures well know that there are existing statutes that permit “private communities” to exist yet be accountable to Constitutional public government as a state entity, and retain the perceived benefits of restricted amenities, “ordinances,” community “taxes,” etc. (See a Proposal for the Muni-zation of HOAs).

I invite any and all online media, and those public interest organizations who fight for individual rights, to duplicate this poll for their viewers. Let’s get to the whole truth by publishing this poll, or stop telling your viewers that you tell the truth!!!

It should be noted that another marked rebuttal to these “satisfied” polls was a recent Phoenix CBS affiliate, KPHO, poll on whether or not an HOA Syndrome – a PTSD resulting from living in an HOA, diagnosed by Dr. Gary Solomon – was real. The KPHO internet poll results showed a 69% response that the HOA Syndrome was alive in HOAs. (See HOA Syndrome survey: YES, it exists!).

Please freely distribute this commentary/email to interested parties and your local media.

HOA Kindle books

I have compressed and summarized my research on HOA constitutional  issues over ten years and have produced several Kindle books for a comprehensive understanding of the issues.  The historical basis for the current version of utopian societies begins with a review of The Homes Association Handbook of 1964, and the history of Community Associations Institute.

I’ve tried to bridge the gap between the writings of the academic,  political scientists and the people, and present and clarify the constitutional issues facing the curent HOA hegal scheme.

The following Kindle ebooks are available for downloading

2.

The Foundations of Homeonwers Associations and the New
America REVISED by George K. Staropoli (Kindle Edition – Oct 14,
2009) – Kindle eBook

Buy: $5.95
Auto-delivered wirelessly

3.

Establishing the New America: independent HOA
principalities by George K. Staropoli (Kindle Edition – Jul 17,
2008) – Kindle eBook

Buy: $15.95
Auto-delivered wirelessly

4.

Understanding the New America of HOA-Lands by George Staropoli (Kindle Edition – Sep 24, 2010) – Kindle eBook

Buy: $8.95
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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.