Tag: government

It’s time for others to act for HOA reforms

After 13 years as an activist for HOA reforms across the country I am withdrawing my active involvement in HOA issues. However, I will remain an observer of events, commenting from time to time on the broader constitutional issues. 

Over these years I have provided a wealth of information and legal authorities as a source of materials for HOA reform legislation and in dealing with state legislatures.   A summary of the issues that I consider critical at this turning point in HOA reform advocacy can be found in the PDF file, HOA Common Sense: rejecting private government.  One point that I make is why are HOAs allowed to escape constitutional compliance when even every state’s home rule laws require compliance?

A final comment:  When these broad constitutional issues are ignored as justification for reform, then advocates have accepted the legitimacy of the HOA scheme and pro-HOA laws.  This acceptance of the “robber barons” reduces the debate to a wrongful equality of rights argument, to a “we must treat both sides fairly.”  As history has shown, the advocate generally loses.

HOA Common Sense, No. 9: HOA governments in fact

HOA Governments in fact, No. 9

I believe all HOAs should be required to have a sign at the main entrances to the subdivision that clearly states: “You are now leaving the American Zone.”[1]

De facto governments.

Is the HOA a mini or quasi government?  Is it a state actor? Or is it just another business with special privileges?  I believe we all can agree that the status of HOAs is that they are de facto – they exist — governments, not recognized by the state under municipality statutes just as Cuba is a de facto government not recognized by the US. 

What is the uniquely defining attribute of a government that distinguishes it from a business or non-profit charity?  Understand that all the functions that the CAI lawyers claim to make the HOA a business can also be used to claim that businesses are governments. Think about it.  Yes, they share the same functions – taxes/assessments, fines/penalties, courts/hearings, ordinance/rules and regs, etc. But the basic criterion is that “modern states are territorial, their governing body exercise control over the persons and things within their frontiers.[2]  This alone singles distinguishes a government from a business or charity.

Black’s Law[3] attempts to clarify what is commonly accepted as a political government: A government is “The principles and rules determining how a state is regulated.”  A nation is “a community of people inhabiting a defined territory and organized under an independent government; a sovereign political state.” And politics is “The science of the organization and administration of the state.” The general understanding uses the terms ‘people,’ ‘territory’, ‘regulation,’ and ‘state/nation’. 

Now, I know the above may be confusing, but the skilled HOA attorneys will do their parsing and word game analysis (depends on what the meaning of ‘is,’ is) of these definitions seeking to create reasonable doubt as to what the people know to mean as “government.”  You know, such as the argumentative asinine statement that, is the owner of a football stadium that regulates the people in the stadium a government?  

I prefer the simpler, down to earth answer given by Justice Stewart regarding what is pornography,

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . . .”[4]

It is interesting to note that David Wolfe, a founder of CAI back in 1973, had the following to say in 1978 when CAI debated the status of HOAs as a government.

One legal opinion offered in support of construing CAs [HOAs] as a government noted that the Supreme Court had required constitutional procedures in a ‘company town’ and with ‘political parties’; from this view CA actions were ‘public’ in a constitutional sense. . . . Wolfe concluded that a new definition of a CA as a government was needed to bring about Lewis Mumford’s vision of a democracy.[5]

And long ago in 1994 Prof. McKenzie wrote, “HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.[6]

The defective legal scheme

Please understand that all substantive (as opposed to changes to laws affecting HOA operating methods and procedures) reform legislation is an attempt to restore your rights, freedoms, privileges and immunities as citizens.  They were taken away by the HOA biased laws that granted the HOA power to deny or did not prohibit the HOA from denying your constitutional rights.  Yet, even the most independent local control over people found in a state’s home rule statutes requires allegiance to the US and state constitutions.[7]  Why do HOAs get special laws?  Why are they exempt from the Constitution?  It doesn’t add up!

You may ask, What for?  The answer is obvious: for the survival and acceptance of a defective legal scheme that seeks to impose authoritarian governments on unsuspecting people. If boards and officers are to be held accountable, who would volunteer?  Well, why not pay them a salary so accountability can be demanded?  WHAT!!!  If they are going to be paid and held accountable, then members have a right to demand qualified board members and not any ole body who would like to be on the board.

Wait!  Wait! I can see readers recoiling in horror.  “The horror . . . the horror . . .” (from the movie Apocalypse Now!).   So, boards are generally not paid and are volunteers, without any special training.  At least the legislature and city councils have tradition and long established rules and procedures with staff to assist the law makers, but HOAs are “on the fly” – on the job,  decide as you go.  No wonder we have all these problems with capable governance.  And the volunteers and the special interests lament, “but we are volunteers helping to make a better community. You can’t hold us responsible and accountable. We need a free reign.”  Yeah!  Right!  Free to create havoc!

All because the mass merchandising of the HOA concept could not be sold under such conditions that demanded prudent accountability.

And, the concept could not fly without mandatory members and compulsory dues.  The founders of the HOA scheme who wrote the HOA “bible” in 1964 well knew this. And in order for the HOA to legally bind subsequent home owners the founders had to resort to servitudes running with the land, or equitable servitudes/covenants.[8]  

But, the equitable servitudes doctrine brought a host of ills detrimental to the US Constitution and the Bill of Rights, which very disappointedly the courts have held superior to the supreme law of the land.[9]  They have allowed for the establishment of the New America of HOA-Land with communities governed by de facto authoritarian, private government regimes known as HOAs.

HOA member Declaration of US and State citizenship

All that is needed to have HOAs rejoin the Union is for state legislatures to pass a bill that states:

Notwithstanding anything to the contrary in the governing documents, or other laws to the contrary,

Wherefore, the members of the association, having not waived or surrendered their rights, freedoms, privileges and immunities as citizens of the United States under Section 1 of the Fourteenth Amendment, and as citizens of the state within which they reside, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state, or be amended to comply, that, “The association hereby waives and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.

PS.  I apologize for the intrusion by WordPress to have added underlines to certain words.

References

[1] As contained on the On The Commons website, Shu Bartholomew, Producer and Host (http://onthecommons.us).

[2] “State”, Black’s Law Dictionary, 7th Ed.

[3] Id.

[4] Jacobellis v. Ohio, 378 US 184 (1964).

[5] Quoted in Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, Donald R. Stabile (Greenwood Press, 2000), pp. 164 -167. Lewis Mumford was a 1920s utopian community promoter.

[6] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[7] A legislature’s grant of autonomy for local government to act without legislative approval on acceptance of certain terms (Blacks’ Law Dictionary, 7th Ed.); “as long as they obey the state and federal constitutions” (Home Rule, Wikipedia (http://tinyurl.com/nyqpd2a).

[8] The Homes Association Handbook, Urban Land Institute Technical Bulletin #50 (1964); See my analysis at Analysis of The Homes Association Handbook.

[9] Most notable are: Inwood v. Harris, 736 S.W.2d 632 (Tex. 1987) (Texas Constitution overridden by covenants running with the land); Villa de Las Palmas v. Terifaj, 90 P.3d 1223 (CAL. 2004) (amended restrictions are binding on all in violation of ex post facto prohibition doctrine); Committee for a Better Twin Rivers v. Twin Rivers, 929 A.2d 1060 (NJ 2007) (fundamental rights denied and business judgment rule is sufficient protection of homeowner rights).

 

 

 

HOA Common Sense, No.3: The Path to HOA Enlightenment

The Path to HOA Enlightenment, No. 3

I ended HOA Common Sense No. 2 with a call for the people, following their ethical and moral conscience, to lose their false views of reality in order to successfully resolve long standing, endemic HOA problems.  The authoritarian, private HOA government was not created to and has no legal obligation to protect and maintain individual rights and freedoms as does public government under our Constitution with its Bill of Rights.

This difficult task for substantial HOA legislative reforms can be accomplished by choosing the path that requires the people to 1) step outside the box created by the pro-HOA special interests and to reject dogmatic attitudes that refuse to consider opposing and dissenting arguments, and 2) that we confront and challenge the pro-HOA supporters demanding that they defend their half-truth, misleading, and false mantras with documentation and legal authority.

This path to a successful resolution of endemic HOA problems is rational and sensible.  It is up to the people to choose the America of tomorrow, that of the Founding Fathers or of the New America of HOA-Land, for their children and grandchildren. 

It’s just common sense for Americans to reject the authoritarian HOA private government, and to support our democratic system of government of 226 years.

HOA Common Sense, No. 2: The new Enlightenment Age

The new Enlightenment Age, No. 2

I ended HOA Common Sense No. 1 with a call for the people to strip away their dogmatic views about HOAs and adopt a fresh, common sense approach to understanding the nature and functioning of their community – a local political and social community.  It must be asked, Why is an imposed contractual government without the protections of the Constitution better than a local public entity subject to the Constitution?  

Consider that the alleged contract signed at the time of purchase can be modified without the buyer’s consent, and without compensation, making the “contract” a meaningless piece of paper.  A condition that is not possible under the Constitution, which prohibits ex post facto laws – laws that change the legality of past conditions.   Your agreed to CC&Rs can be so amended to alter the terms and conditions of your agreement.

What sense does that make?  Why would anyone with any common sense accept this condition? And there are many other questions that cast legitimate concerns of a rational decision by buyers to accept the CC&Rs adhesion contract.

The policy makers, the public and the homeowners must understand that they have been living in a “cave” created by the promotion and mass merchandising[i] of the HOA legal scheme, eagerly accepted in exchange for empty promises of maintaining property values.[ii]  As prisoners within the cave, HOA members can only see the shadows of reality cast by the false light of the special interest propaganda.[iii]  Those who have escaped the cave and who have gone into “the light” of reality become enlightened. 

The difficulty before our society is for the Enlightened to be able and willing to return to the cave, the HOA, and inform the members about the truth of the HOA legal scheme. But, the members reject these arguments as false, because they have not seen the reality.  This task of enlightening society in general is a major task. However, “This ‘no negatives about HOAs’ unspoken alliance that has served the industry’s special interests by keeping things under wrap, and not letting the sunlight expose these legal issues that include violations of constitutional law, is collapsing.[iv]

A people, a society, that bases its actions on a false reality will never resolve problems.  The underlying assumption is a firm belief that the people want to do what is right and just.  The Dalai Lama wrote, “Where ethical restraint is lacking, there can be no hope of overcoming problems.”[v]  Where ethical restraint has been replaced with material concerns and especially concerns for money, and with “Me first”, “Greed is good”, and “I want it now!” it is understandable why our government of the people is so dysfunctional.[vi]  And that includes HOA private governments.

[i] See “Part 1, The Mass Merchandising of HOAs,” The Foundations of Homeowners Associations and the New America, George K. Staropoli, StarMan Publishing (eBook) 2009.

[ii] Here I make the argument that the people, in general, have been conned.  Readers should refresh themselves with Hans Christian Andersen’s The Emperor’s New Clothes. 

[iii] See Plato’s allegory of the cave in Book VII, The Republic.  For a summary and a simplification of the allegory, see the YouTube video at http://youtu.be/sAu-CNSh9F0.

[v] The Dalai Lama, Ethics for the New Millennium, Riverhead Books, 1999.

[vi] Jim Wallis, Rediscovering Values: On Wall Street, Main Street, and Your Street, p. 27, Howard Books, 2010; Ron Brownstein, “America Divided”, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America, Penguin Books, 2007.

HOA Common Sense, No. 1: The New America of HOA-Land

This Commentary is the first in a series on the topic of HOA Common Sense.  The political and social changes in our society brought about by the adoption and acceptance of the HOA legal scheme has created a new America of authoritarian, private governments known as HOAs. They function as independent principalities.  The values, beliefs, principles, ethics, and morality of today’s America would shock the Founding Fathers.

In 2008 I wrote, “Historians have referred to the American Revolution as the ‘American Experiment’” and

The birth of the Second American Experiment went largely unnoticed. Under an unspoken alliance, the public was not informed of this experiment in the privatization of government. . . . This second experiment was not a strengthening of democracy, but one that promoted and established – with the support and cooperation of the state legislatures – private, contractual, authoritarian, government regimes. (Homeowners Associations: the Second American Experiment.)

Earlier, in the 2007 paper,  The Fall of the American Experiment:* Homeowner preference for HOA regimes, it was argued that,

As with the Articles of Confederation, the HOA Declaration must be scraped and replaced with a new “constitution,” a municipal charter that allows for local individual ordinances and access to community amenities based on a community taxing district model, but subject to the same obligations, restrictions and laws as are our municipal entities. This approach would indeed retain the subdivision planned community real estate “package”, and would be a much-improved model of local autonomy, of local home-rule, still within the framework of the Constitution and laws of the land.

The people of America must escape the dogmas of today that have brought about a dysfunctional federal government and dysfunctional state legislatures that have renounced the Constitution. State governments have permitted the HOA principalities to function and govern the people independent of the Constitution.  What purpose, then, does our Constitution serve?

These HOA governments are also dysfunctional and reflect our society. The people must replace these irrational dogmas with a sensible analysis of the current social and politic climate of America.  A common sense approach by the people is needed to take a fresh look and what’s wrong with America and what’s wrong with the HOA legal scheme – for their children and their grandchildren.