HOA Common sense – HOA Constitutional Government

AZ bill returns homestead protection against HOA claims.

We must make the injustice visible. We must provoke until they respond and change the laws.[1]

Arizona alert – strike everything HB 2648 (2024) returns homestead protections against HOA claims.

“ARS 33-1807 and 33-1256. “B. THE COMMON EXPENSE ASSESSMENT LIEN PRESCRIBED BY THIS SECTION IS NOT SUBJECT TO THE HOMESTEAD EXEMPTION.”

Let’s go back into the forgotten history of the homestead exemption in Arizona, starting in 2004,[2] 2007[3] and 2023. The issue was and is the use of statutes to mimic the common boilerplate of the CC&Rs: Statutory vs consensual lien. “A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents.”[4]

In 2004, still learning the ropes, I did not follow up on the state actors controversy based on the ARS statutes saying (my emphasis), “‘The association has a lien on a unit for any assessment.”

“Representative Farnsworth made quite clear that ARS33-1807(A), which opens with, ‘The association has a lien . . . . is a statutory lien and not a consensual lien – the homeowner has no choice in the matter whatsoever.” (emphasis added).”

This can only be interpreted as a mandatory statute making the HOA an arm of the state, acting in place of the state – a state actor.[5] No, and, if, or buts! It is not a consensual lien if mandated by the state!

A second argument raised many times subsequent to 2004 questions the validity of a genuine consensus – “an agreement to be bound.” In short, the argument raised in Common Sense[6],

“First, the application of contract law to the CC&Rs agreement reveals the many invalid aspects of the CC&Rs as a bona fide contract. It is obvious from a simple review of contract law. Yet, courts have held that the CC&Rs are a contract or are to be interpreted as a contract, and have even analyzed the meanings of CC&Rs in the same manner as a contract. But, the courts do not question the validity of the CC&RS contract with respect to contract law. The courts resort to equitable servitudes law, which simply requires the acceptance of a deed in order to bind the home buyer to the CC&Rs sight unseen.”

On this point alone, HB2468 must be strongly supported. The controversy of statutory vs consensual is avoided to the relief of homeowners.

It is the Achilles heel of CAI’s reason for being — cruel foreclosure and no homestead exemption as a punishment to coerce obedience.

Notes

[1] Mahatma Gandhi, fighting for India’s independence from British rule, 1948.

^[2]HOA Homestead Exemption Exclusion (SB1470) (2023) (A 2004 look back and a comment by Fred F).

[3] See, The constitutionality of legislation: AZ Gov. vetoes homestead exemption bill (2007);

Arizona SB1330 restores lost homestead protection in HOAs (2007).

[4] See, All state “may/shall” statutes imply HOAs as state actors.

[5] See in general, Are HOA state actors created by statutory use of shall/may? (Section 2, paragraphs 5 +). (2019).

[6] HOA Common Sense, No. 4: Consent to be governed

The Collected Writings TOC 1

Announcing “HOA Constitutional Government: the continuing battle,” is now available on Amazon as a Kindle eBook. See https://www.amazon.com/dp/B0CSC5LCY8. Paperback to follow.

I have included a table of contents of 56-issues reflecting perspectives, views, opinions, and documentation that point the way to HOA substantive reforms. Readers may not agree, accept, or like what is stated in these issues that have been essentially avoided over the years; they are of immense educational value and necessary for a realistic picture of HOA-Land. Part 2 of the TOC to follow.

See: HOA Constitutional Government: collected posts.

I. On Reform Legislation . . .

d. Decl. of Indep. from HOA government — 2000 . . .

e. A united, national front to HOA reform legislation (2023) . . .

f. Two distinct levels for HOA legislation (2019) . . .

g. Analysis of The Homes Association Handbook (2006) . . .

h. America’s homeland: HOA law vs. Home rule law (2022) . . .

i. Preface to HOA Common Sense (2021) . . .

j. HOA Common Sense, No. 1: The New America of HOA-Land (2013) . . .

k. the NJ Supreme Court opinion in the Twin Rivers HOA case (2008) . . .

l. CAI firmly supports the New America of HOA-Land (2011) . . .

m. Authoritarianism in America; authoritarianism in HOA-Land (2022) . . .

l. AZ bill, SB 1148, seeks to restore OAH adjudication of HOA disputes (2011) . . .

m. Arizona’s new “Take That George!” law: defend HOA statutes (2010) . . .

n. AZ Rep. explains failure of HOA reform legislation (2013) . . .

o. The Florida (HB 1397): police powers and the loss of fundamental rights (2009)

p. Landmark FL HOA law imposes criminal conduct (2023) . . .

q. Colorado senator’s guide to effective HOA legislation (2013) . . .

r. NC reform bills need your support (2023) . . .

s. North Carolina: second battleground for people’s rights in HOAs (2013) . .

t. CA bill AB 1410 – a step backwards for HOA homeowner rights (2022) . .

u. Substantive SC HOA reform bill – end foreclosure (2019) . . .

v. Effective HOA reform legislation (2023) . . .

w. HOA member Declaration of US and State citizenship (2015) . . .

Georgia court: A Milestone for Fair and Free Elections

Jade Whitter posted comments in Home Owners Association (HOA) Information (Oct. 27, 2023, FB)[1], on a Georgia appellate case [2] concerning the fundamental right to fair HOA elections. At issue here is the imposition of a quorum on board elections although the documents were silent on a quorum requirement.

Whitter wrote,

“A Milestone for Fair and Free Elections. The Court’s ruling speciﬁcally eliminates the draconian measures that obstructed free and fair elections, namely the use of a quorum as a prerequisite for a valid election. This is signiﬁcant because ‘lack of quorum’ has been used to invalidate annual elections and keep many of the same individuals serving on the Board.”

The homeowners’ attorney praised the homeowner group,

“It should not be taken lightly the dedicated grass roots efforts that it took to bring this coalition of homeowners together under a unified call for fair and representative elections. I am in awe of the W.E Concerned Homeowners’[3] leadership team that was able to coordinate this effort.”

While in the public domain there are no quorum requirements, there is a downside to no HOA elections quorum. A small, highly active and united clique can take control of the HOA where there is general apathy among the homeowners, or their conduct can be described as a cult following – the HOA can do no wrong. BEWARE!

I cannot stress how vital free HOA elections are to a democratically run HOA where constitutional and fundamental homeowner rights need protection. I commented on fair and democratic HOA elections 0n 2 occasions.^[4]

“I cannot overstate the profound damaging effect of the boilerplate CC&Rs covenants – the HOA-Land fair elections doctrine — that define the highly inadequate process and procedures alleged to be fair elections and approved by the member. In a democracy, the fair elections doctrine is the means for the expression of the will of the people and the consent to be governed by the HOA’s members. It is the fundamental basis for a valid consent to be governed. Unjust BOD biased election procedures deny the legitimacy of the HOA-Land doctrine.”

“HOA members have been repeatedly told that they can change things in their HOA by voting for board members and even by changing the governing documents; that HOAs are democratic because members can vote to make these changes happen. Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy. You are being conned!”

[1] See Home Owners Association (HOA) Information.

^[2] Willis Et Al. V. Water’s Edge, A23A0868 (Ga. Ct. App.), Decided: October 24, 2023.

[3] Concerned Homeowners is a public FB group.

[4] See in general, Reorienting the HOA board – fair elections and HOA Common Sense, No. 5: Democratic elections.

WSJ poll on decaying American values shared by HOA-Land

As early as 2019 I began examining the relationship between the decaying national culture and that of the political and social culture of HOAs in HOA-Land. I came to the conclusion that the HOA social and political dynamics are identical as we have witnessed on the broad national scale. I am not sure as to what came first, the chicken or the egg? To what extend has the HOA independent principality mentality and legal scheme contributed to the national scene? Or are the HOA dynamics just a reflection of the broader culture in America today functioning in parallel with the national malaise, are the private government HOAs?[i]

In “Part 1, The Cultural Dynamics of HOA-Land” of my HOA-Land Nation, I present my analysis of the forces at work dominating the politics within the HOA private government.

“Basically, the HOA legal structure and scheme is authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. The authoritarian nature of HOA-Land is masked by a thorough indoctrination that presents a false picture of the real estate subdivision as democratic, inappropriately named a community, simply because the members are allowed to vote, as meaningless as it is“.[ii]

Last month The Wall Street Journal (WSJ) conducted a poll on the decline in American values since 1998, just 25 years ago.[iii] The University of Chicago interviewed 1,019 adults and revealed a decline that is reflected in the HOA culture as well. In other words, Americans have changed their values to disregard the democratic values of our Founding Fathers. And the private government CC&Rs constitution played a big part in this reshaping of America.

The WSJ findings reveal the interplay between the two cultures in several important aspects.

Community involvement … Dropped from 47% to 27%. This finding supports HOA lack of involvement, non-volunteering members, the apathy, and failure to support substantive, well documented complaints by other members that is rampant throughout HOA-Land. HOA details can be read here HOA defect: volunteers & boards of directors.

· Patriotism . . . Dropped from 70% to 38%. How can it be explained? The prevalent conduct by the vast majority of HOA members who unquestionably accept the acts of the board of directors. When these actions are outright black and white violations of the Constitution, state laws and obligations of the HOA governing documents. In short the HOA operates with impunity in regard to American values and beliefs, reflecting a lack of US patriotism and a preference for the HOA “constitution.” HOA details can be read here:HOA Common Sense, No. 1: The New America of HOA-Land.

Money . . . rose from 31% to 43%. The cultural messages over the last several decades have clearly been: greed is good; it’s all about me; and I want it all, and I want it now. Paraphrasing the Reverend Wallis,

Do we want [property] values to prevail everywhere and in all things? Are there some areas of life where [property] values should not determine what is most important — personal and family relationships, ethics and religion, community and public service and social justice? Are there certain things degraded when [property values] are allowed to be the ultimate measure? Are there certain social values and practices that are higher than market values?[iv]

· Religion . . . Dropped from 62% to 39%. Each of the above drops in the conduct of Americans, also found in HOA-Land, portrays a decline in the ethical and moral values and guidelines that were previously provided by institutional religions. “God id dead” is the watchword of federal government that has not provided a substitute code of conduct. In America today, Rev. Jim Wallis wrote in 2010 (Rediscovering Values), “What has been deliberately and carefully made ‘socially acceptable’ was, not too long ago, thought to be irresponsible – both financially and morally.” See also, God is dead, and so, too, are our unalienable rights.

NOTES:

[i] See Did HOA-Land contribute to the national disregard for democratic America?

[ii] George K. Staropoli, The HOA-Land Nation Within America, StarMan Press, 2019.

[iii] WSJ/NORC Poll March 2023.

[iv] Jim Wallis, Rediscovering Values: On Wall Street, Main Street, and Your Street, p. 27, Howard Books, 2010;

Undue influence of CAI on HOA

I posted this in reply to a simplistic Nextdoor post that wrote that HOAs are governments:

Yes, HOAs and SCG are not simply nonprofits, charities, or for-profit entities. They are, in a complete description, a contractual, private government allowed to function outside constitutional protections under the guise that the members openly and with full knowledge agreed to surrenders and waivers of their rights under the US and state Constitutions.

I suggest concerned people seeking the truth read my simple pamphlet, “HOA Common Sense: rejecting private governments” as a starter. We can then have a meaningful discussion of the issues. It’s on Amazon for just $3.00 Kindle edition.

Or go to https://pvtgov.wordpress.com and search on Common Sense. A preface can be read here Preface to HOA Common Sense. SHALL WE MOVE AHEAD IN A MEANINGFUL MANNER?