The Plan Toward Restoring the HOA Model of Governance[1] called for both a systemic restructuring of the HOA legal scheme and the need to reorient the BODs and legislators. The long ignored and inexcusable questions of constitutionality that continue to harm members and the greater communities across this country must be exposed, understood and accepted.
The above picture reflects the rewrite of the Preamble to the Constitution as applied to the HOA-Land nation. It reads,
“We the people of a private HOA, in order to protect property values, insure domestic tranquility, promote the general welfare, and secure the blessings of increased property values to ourselves and our posterity, do ordain and establish this Declaration for the United HOAs of America.”
Why is there a need for board of directors education on HOA constitutionality? Why? Because:
- HOAs are a form of local government not subject to the Constitution, and have created divisiveness and a separation from the greater public community resulting in member confusion regarding the law and their constitutional rights and protections;
- the national lobbying entity, CAI, has indoctrinated the legislators, the courts, and the public with its CAI School of HOA Governance program that contains just lip service to constitutional questions, for example,
“A global nonprofit 501(c)(6) organization, CAI is the foremost authority in community association management, governance, education, and advocacy. Our mission is to inspire professionalism, effective leadership, and responsible citizenship—ideals reflected in community associations that are preferred places to call home.”[2]
while opposing the application of the Constitution in its numerous amicus curiae briefs to the courts, for example,
“In light of these statutory, contractual and common law standards protecting the interests of community association members, they need not claim constitutional protection from the conduct of governing boards to exercise their rights with respect to the associations.”[3]
- The Findings, Section II, Education for Homeowners Associations and Board Members, of the North Carolina HOA study report to the NC General Assembly recommended,
“In order to provide accurate and readily available resources to educate homeowners, board members, and interested persons about the duties and responsibilities of property ownership in an HOA community, the General Assembly . . . to seek reliable and unbiased information available from private entities . . . and provide for published and online documents and programs offering HOA education . . . .”[4]
- Privatopia: Homeowner Associations and the Rise of Residential Private Government, the 1994 landmark book based on the research of UIC Prof. McKenzie, and highly appropriate today, called the reader’s attention to,
“CIDS [HOAs] currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.
“In a variety of ways, these private governments are illiberal and undemocratic. Most significantly boards of directors operate outside constitutional restrictions because the law views them as business entities rather than governments. . . . [They] are inconsistent not only with political theories of legitimacy but with the normal process by which governments are created. . . . Thus these ‘private governments’ may violate the equal protection clause of the Fourteenth Amendment.” (Chapter 6).
- A Table of Authorities,[5] not all inclusive, supporting the Restoring the Lost Constitution.
- Unanswered questions on HOA constitutionality:
CAI Common Ground Editor Durso mentioned my 2006 “‘open e-mail questionnaire to CAI’ containing four questions.” Below is a copy of those questions initially addressed to the AZ Legislature a year earlier. I never had any answer, either from the Legislature or CAI, nor any debate on the issues.
In a 2011 email to the North Carolina Legislature House HOA Committee I asked, “the legislators, the public interest organizations and policy makers to consider the following questions.” And I concluded with, “I await your reply, or a reply from any of the legal-academic aristocrats.”[6] Still no answer.
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- Can a legislature delegate its functions, not government services but functions, to private entities without oversight or compliance with the Constitution, as required of all government entities?
- Can private parties enter into contractual arrangements using adhesion contracts and a constructive notice consent that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?
A webinar is in the plans that summarizes and follows the materials – the text — comprising the HOA educational series to reorient HOA boards and the public in general. The text is available online under the collection, “Restoring the Lost Constitution to HOA-Land.” Will be coming soon.
Notes
[1] See https://tinyurl.com/sr27yq3.
[2] About Community Associations Institute, April 4, 2020). https://finance.yahoo.com/news/community-associations-institute-cai-provides-181931116.html. April 4, 2020).
[3] CAI amicus brief, Jan. 3, 2013, Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014).
[4] “Study On Homeowners Associations”, Luke A. Rankin, Chair, South Carolina General Assembly (December 18, 2015). (http://www.scstatehouse.gov/CommitteeInfo/HomeownersAssociationStudyCommittee/HOAStudyCommitteeFinalReport12182015.pdf). April 27, 2020).
[5] http://starman.com/m…/restructureHOA/restructure-reading.pdf.
[6] See Too hot for NC HOA committee – withdraws legal-academic “experts, George K. Staropoli, HOA Constitutional Government (Nov. 17, 2011). https://pvtgov.wordpress.com/2011/11/17/too-hot-for-nc-hoa-committee-withdraws-legal-academic-experts/
HOA Constitutional Government 