Tag: HOA Common sense

Whether apathy or anger, it’s always the HOA owner’s fault

The policy of the pro-HOA forces, including your state legislature, is to hold the homeowner at fault for problems in his HOA.  Never the HOA government itself.  Owners are apathetic and should be more involved in solving HOA issues, they argue,  but when owners join they find that their minority position has no power against the clique.  And if they react with anger against repeated outright violations by the board, they are again the problem people who just can’t get along.  Never the HOA government itself.

Many of us, who are involved in attempting to make changes in the public arena have encountered failures by our elected officials to provide fair and just HOA laws. And after a number of years begin to walk away with a harsh understanding that you can’t fight city hall.  There is nothing any different with the similar behavior of HOA owners facing the same public government failures with their HOA government.  They just can’t fight HOA city hall, too.

On the other hand, a number of homeowners react in the other direction by getting angry with the repeated frustrations with the failures of their HOA. With the lack of a viable means to correct these flagrant violations and unjust powers cast in concrete as CC&Rs and pro-HOA laws, what can you expect of good people?  So they get angry, shout, and become bitter at their treatment with no avenue for relief.  They are charged with abusive behavior, harassment, and bullying by the HOA. But, it’s never the fault of the HOA government itself.  Never.

The position of the pro-HOA forces has been, in my view: if the owners would only follow the rules all would be fine. Their position is that the HOA government works in the best interests of the community for everyone.  And that the best interests of the community rests in the unquestioned obedience to the HOA government.  Or suffer the consequences.

Like any other totalitarian government or banana republic, the HOA has the power to destroy your life by taking your home, by imposing harsh monetary penalties (fines), by curtailing your free use of the common property, by denying your right to vote as if you were a criminal of the HOA, and by ostracizing you and your family before the community. To drive you out of your home.  But, it’s never the fault of the HOA government itself.  No, never.

Of course, as with all dictatorships and banana republics where there are loyalists — those who support and defend their government — so, too, do HOA governments have their loyal supporters.  They have bought into the system and refuse to accept anything to the contrary. But what kind of community are they defending? Surely not a democratic system that surpasses that of the US Constitution.  It’s only common sense.

Decl. of Indep. from HOA government

In 2000, as a naïve and newbie to the politics at state legislatures, Arizona in particular, I addressed the HOA Study Committee on September 7th and submitted a statement titled, “HOMEOWNER’S DECLARATION OF INDEPENDENCE  from homeowner association governments.”  In it I quoted parts of the Decl. of Indep. and informed the committee that I had hoped that these hearings would bring forth a list of grievances for which homeowners were seeking redress. 

And as in those times of 1776, a small, principled and dedicated group of citizens are seeking a redress of their grievances. They first looked to the existing government, the HOA Board, and failing to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association controlling document, the CC&Rs.

Mr. Chairman, ladies and gentlemen of the Committee, at this time I had hoped that the citizens a Arizona would be able to present and enumerate their long list of abuses, and solutions to these abuses, similar to as is found enumerated in the Declaration of Independence, without the interference and obstruction by elements of these ‘oppressive governments.’  I see that this will not be the case.

The people of Arizona only wish to be able to present their case before this Committee in a fair and just manner. However, sadly I feel that, because of the composition of the committee, the homeowners are actually being placed on trial; that they are being asked to justify their grievances before their oppressors.

This statement was referenced in Robert Nelson’s 2005 highbrow book, Private Neighborhoods (p. 342). He covered a lot of material including HOA secession from local government and on constitutions (Part V, “Creating HOA Constitutions”).

The purpose of a constitution is to set the ground rules for governance. . . . Yes the rise of the private neighborhood has resulted in far and away the largest number of new constitutions in recent years. [Is he referring to HOA principalities?] . . . . [T]he real estate lawyers and their developer clients . . . with no previous experience available to understand what the pros and cons would be to live in a community controlled by covenants, [governing documents] were born.

In HOACommon Sense: rejecting private government I outlined 5 broad categories to be addressed by reform legislation.

Today, I think it would be helpful to adopt my statement and add those grievances that you feel need to be solved, and submit the entire package to your legislature and the media.  It would be your declaration from HOA governments, your petition for redress. Of course, the more signatures you have the better.

HOAs with police powers: sliding down the slippery slope to HOA-Land

In State of NC v. Weaver[1] an HOA security officer stopped a driver on the suspicion of speeding within the HOA grounds.  Even though there were almost identical circumstances in Poris v. Lake Holiday[2] – uniforms, patrol car marked “Metro Public Safety,” and flashing lights – where the Illinois court held that security agents had the right to stop and detain drivers, the state in this appeal argued that the security officer was not a state agent. 

 The HOA authorized the security officers “to issue civil citations and fines to anyone on the property who violated the rules and regulations of the community (fines to be collected by a debt collector).  Note the broad grant of power to the security officers to fine and collect debt from non-members (the question of public streets remains unknown).  Therefore, it should not be surprising that the trial court had held:  “1. The armed security guard . . . [a]cted as an agent for the State[.]; 2. The armed security guard is a State actor.”[3]

 In reply, the State argued that:  “a traffic stop conducted entirely by a nonstate [emphasis added] actor is not subject to reasonable suspicion because the fourth amendment does not apply.”  In other words, while a cop had to have had a good suspicion that a crime was committed in order to stop and detain, it did not pertain to the security agent who was not a state agent, and constitutional protections did not apply as it does not apply to the HOA contract in general.

The question of whether or not the officer was acting under HOA orders was avoided, thus not allowing the question of HOAs as state actors to be entertained.   Questions like: Was the HOA’s authority to have its security agency act with civil police powers – stop and detain – constitutional?  Was the HOA, itself, a state actor?[4]

Where did the HOA get such authority? Certainly not by delegation from the NC legislature as required by law even for the creation of state agencies.  (In Arizona, constitutionality challenges were mounted by CAI attorneys questioning the authority of the Office of Administrative Hearings (OAH) to adjudicate HOA disputes).

But, this constitutionality issue was not the question before the court, but should have been as it pertained to the legality of the initial stop and detain act by the security officer.

The appellate court maintained that there was no evidence that the officer was acting to assist bona fide law enforcement officers or was asked by them for assistance.  However, it ignored its own acknowledged fact that the officer detained the defendant when  he smelled alcohol and “asked defendant to “step out of [the] vehicle and have a seat on the . . . sidewalk[.]”

The appellate court also ignored the trial court finding, which was not challenged by the State, that: “No Longer was he performing under Metro’s contract. After issuing the civil citation his actions exceeded his contractual authority. His goal and purpose evolved into detaining [d]efendant until local law enforcement arrived.” Was this a legitimate citizen’s arrest?

And what if the officer was acting under contract?  Then what?  Not addressed.

The appellate court dismissed the findings that the HOA security officer was a state actor and the case goes back to the trial court to decide its merits.  Namely, as a private citizen did the officer unconstitutionally stop and detain the defendant?  Poris said no. Federal court decisions on Arizona’s SB 1070 immigration laws put a strong damper on even police stopping and detaining citizens. 

So, where do we go from here?    Hopefully to answer the question of the HOA’s authority to act with police powers, a power confined to civil, not private, government.

 

 References

 

[1] State of NC v. Weaver, NO. COA13-578 (NC App. 12-13-2013). This appeal centered on the trial court’s granting of a motion to suppress evidence in the DUI case, because the security officer was a state actor.  It does not consider the very important issue of HOAs as state agents. The defendant was represented in the appeals case by NC’s version of a public defender.

[2] See in general, Corporatism in America: IL Supreme Court grants HOA police powers to arrest and detain.

[3] A ‘state actor’ can be defined simply as ‘an arm of the state’ as if it were a public agency or entity.  As such, the HOA would then be subject to 14th Amendment restrictions that protect your rights.  See Do state HOA Statutes Establish HOAs as State Actors?

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).