Tag: HOA-Land

Reorienting the HOA board and its followers

Mentoring: Reorienting HOA board – mission

Review of StarMan Group Mission

    • to establish the climate and culture of the HOA enabling the restoration of the lost constitutional principles of democratic government — individual rights, justice and fair play — for its members within the confines of a private contractual government, and
    • to remove the very strong external influences of the special interest vendors and lobbyists who are the primary causes of this deviation from the general societal norms and values.

In earlier papers I described the Cultural Dynamics[1] of and the domination of HOA-Land[2] by industry “stakeholders” who claim a special interest in your HOA controlled home. I maintained that the Community Associations Institute (CAI) dominates and heavily influences the decisions and functioning of boards (BODs) through its strong influence on state legislatures that adopt biased and unjust laws detrimental to the members. CAI’s effect on the BOD, the members — especially the loyal “followers” — and the public in general stems from 45 years of indoctrination by means of the CAI School of HOA Governance.[3]

This series, “Restructuring the HOA Model of Governance,”[4] offers a plan, conforming to the principles of organizational development,[5] to return HOA-Land to democratic constitutional government and cease being a protected outlaw government functioning outside the Constitution and laws of the land. Having introduced my positions on the role of the BOD in its policymaking capacity and the heavy hand of CAI, I now address the need to reorient the BOD with its huge authoritarian[6] powers that would not be allowed under municipal governments.

“HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[7]

I wrote, “The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

BOD reorientation

Addressing nonprofit organizations, eminent management consultant Peter F. Drucker wrote: “The first job of the leader is to think through and define the mission of the institution. . . . One of the most common mistakes is to make the statement [a series] of good intentions.”[8] It has to be operational, otherwise it’s just good intentions. Using my prior example of a large-scale active adult HOA in Arizona, I contrast the mission, goal and values statements that illustrate an effective and productive community.

HOA vision statement: [HOA] is the premier active, age−restricted community in Arizona.

Restructured Vision Statement: To become the premier active, age-restricted community in Arizona.

HOA mission statement: [HOA] provides residents with a high−value community, with resort−style amenities, in which every person can choose to participate and live well, based on their needs and desires. This high standard will maximize our investments and promote our well−being in an active close−knit community.

Restructured Mission Statement: To provide residents with a high-value community with resort-style amenities to maximize our investments.

HOA values statement: In support of our Mission Statement, we hold to these values:

      • We foster relationships built on respect, trust, and effective communications.
      • We listen to understand.
      • We are open−minded, collaborative, and always look for ways to improve our community.
      • We believe in life−long learning and a desire for active well−
      • We are a forward−looking, fiscally−sound community
      • We encourage an environment of empowerment and personal responsibility.

Restructured Values: We believe in a community culture having high standards and principles of conduct and behavior.

These HOA views and attitudes came quite as a surprise considering that it is a $20,000,000 revenue operation, and one would expect it to do better than that. My impression is that they are a prime example of the BOD’s mistake of using lofty, high and mighty statements lacking focus and aimed to give the appearance of good intentions, as Drucker explained above. These HOA statements read very similar to CAI’s propaganda and its advice and training offered by its School of HOA Governance.

The time is well passed for the BOD to drop CAI as an advisor, as CAM and as its HOA attorney. It’s well passed the time for BOD’s to learn about the effective and healthy council-manager form of local government.[9] Not that public government is perfect but it is far better in upholding the principles of democratic government lost under the adhesive CC&Rs “constitution.”

(Part 2 of the Reorienting HOA BOD will discuss BOD failure to attract member commitment as volunteers).

Notes

[1] George K. Staropoli, HOA-Land Nation Within America, Part 1, “The Cultural Dynamics of HOA-Land” (2019) and High RWA followers can be found in HOA members. (2019).

[2] “HOA-Land is a collection of fragmented independent principalities within America, known in general as HOAs, that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States”, Defining HOA-LAND: what it is (2017).

[3] George K. Staropoli, Restructuring HOAs: “CAI School and member benefits” pt. 2 (2020) and CAI School faculty advice – managing HOAs (2020).

[4] George K. Staropoli, Restructuring the HOA model,(2019).

[5] See in general, “Organizational Development,” George K. Staropoli, (2019).

[6] Supra n. 1.

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

[8] Peter F. Drucker, Managing the Nonprofit Organization: Principles and Practices, HarperCollins (1990).

[9] See in general, Roger L. Kemp, “Forms of Governance,” Managing America’s Cities: A Handbook for Local Government Productivity, McFarland & Co., (2007). They are: Strong Mayor, Council-Manager, Town Meeting (direct or representative democracy), and Commission.

Goldwater Institute ignores HOA unconstitutionality

Reading through the highly respected Christina Sandefur’s paper in the Harvard Law Journal,[1] I was deeply disturbed by the absence of any discussion of similar conduct by homeowners associations (HOAs). Her paper criticized city ordinance prohibitions on short-term home rentals. “These cities treat home sharing itself as the crime.” It is a dangerous proposition that government . . . [to] be able to criminalize violations of that judgment” [“on how to use their properties”].

Yet, in her one single sentence, Sanderfur holds HOAs harmless that, by means of the governing documents, use their “police powers” to prohibit short-term rentals and from criminalizing such acts by their members. “While that may be the role of a homeowner association when people contract to determine to how to use their properties, a city government should not have that power.”

Sanderfur’s arguments against government statutory prohibitions, include in part,

  • “Cities look at this as a way to increase revenues” by imposition of fines,
  • “They get to outlaw the activity,”
  • Intimidate residents [of the city] into giving up their property rights”,
  • “This is not only abhorrent public policy, and
  • “It is also unconstitutional”.

It seems that these arguments apply to HOAs also, but it appears that nobody is listening. I do not understand and cannot understand this blindness to the constitutional issues surrounding HOAs, especially from the prestigious, defending the Constitution, public interest Goldwater Institute.

What is the rationale behind this blindness when there is substantial legal authority in support of unconstitutionality, from the basic outlaw government of independent principalities that reject the US Constitution,[2] to placing the doctrine of equitable servitudes property law over constitutional law and contract law;[3] to gross misrepresentation in the selling and marketing of HOAs that invalidate and thought of a bona fide consent to be bound.[4]

When will Goldwater question the constitutionality of the HOA model of government? Why is Goldwater viewing an HOA just as a real estate subdivision package of amenities, landscaping, homes and not as a distinct form of local government[5] functioning outside the laws of the land as an outlaw government.

“The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.” (George K. Staropoli).

 CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local governments.[6]

There is no compelling and necessary justification for HOA special treatment. It’s time to end these outlaw private governments that violate even the most liberal home rule, self-governing provisions of state laws and constitutions.[7]

I do not see Goldwater’s name on the list of Arizona’s Request to Speak positions on SB 1412,[8] a bill prohibiting HOAs from restricting the political free speech rights of homeowners in regard to political issues within the HOA community. California just passed SB 323, a progressive bill supporting homeowner rights, and Florida has SB 623 in the works also seeking homeowner rights and freedoms within the HOA legal structure.[9] This a very good time for Goldwater to speak out on this bill and HOA member rights, freedoms and privileges and immunities as US citizens.

 

The Goldwater Institute, including Sanderfur, has been on my distribution list for some time as well as Victor Riches, President & CEO, whom I met and discussed HOA problems as far back as the early 2000s when he was an Arizona legislative staff analyst. I also met with and discussed HOAs with Clint Bolick, now AZ Supreme Court Justice, who in 2013 accepted my request for legal assistance to sue the State of Arizona. He was preempted by Tim Hogan of ACLPI.[10] It was with Nick Dranias that I had a pleasant Arizona Capital Times exchange on HOA issues.[11] He offered, privately, some advice that I have incorporated into my Truth In HOAs position and Homeowner Declaration.

 

Notes

[1] Christina Sandefur, “Turning Entrepreneurs into Outlaws,” p. 45 et seq., Harv. J.L. & Policy, Winter 2020. Sanderfur is an Exec. VP, Goldwater Institute.

[2] See The HOA Principality (2005); HOA-Land: the product of the decline in democratic institutions in America. (2018).

[3] The Restatement advises judges — and is regarded as precedent — that its collection of laws known as HOA law dominates all others.   Section 6.13, comment a, states: “The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law”. Section 3.1, comment h, states: “in the event of a conflict between servitudes law and the law applicable to the association form, servitudes law should control.” See CC&Rs are a devise for de facto HOA governments to escape constitutional government (2015).

[4] See HOA consent to agree vs. “the will of the majority”. (2019).

[5] The four recognized types of local government are : commission, and council-manager, the most prevalent. See in general, Roger L. Kemp, “Forms of Governance,” Managing America’s Cities: A Handbook for Local Government Productivity, McFarland & Co., (2007).

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

[7] See in general, HOAs violate local home rule doctrine and are outlaw governments, concluding paragraph. (2014).

[8] AZ RTS positions as of today, March 4, 2020.

[9] See Toward a democratic HOA subject to the Constitution (2020).

[10] See AZ Attorney General admits SB 1454 HOA to be invalid and without effect (2013).

[11] See Goldwater Institute: regulating HOAs “stands Constitution on its head” (2008).

State legislators have placed HOAs above the law

There are strong parallels between the shameful conduct of our elected officials in Washington and that of “elected” HOA boards, each made possible by the strong support of irrational, dogmatic cult followers. In turbulent Washington with the upcoming impeachment of trump, Congressional Democrats and some Republicans are staunchly upholding a fundamental principal of democracy: no one is above the law!

To allow any person or organization to operate above the law is to reject the US Constitution founded on representative democracy. In Washington there is the minority faction of Republicans and in HOA-Land[1] there is the a majority faction of homeowners who accept the conduct of the leadership, failing to recognize its wrongful and illegal conduct. By their active support, these authoritarian followers[2] are placing the leaders above the law. Cults exhibit a lack of any freedom of mind by their followers who blindly and irrationally submit to the will of the cult leader.

“What has this to do with state legislatures and HOAs,” you may ask. Plenty!

Over the years state legislatures, each and everyone, have by acts of commission and omission enacted special legislation — generally known as PUD, CID, HOA, POA, etc. Acts — for a special class of nonprofits that placed HOAs above the law. While granting and permitting broad de facto political governance over the residents of the HOA subdivision, HOA boards of directors, the directors themselves, the officers, and their attorneys and managers/firms are not subject to effective enforcement by the application of meaningful penalties.

There are none or hardly any provisions for the enforcement of the law that are substantial enough to serve as a serious detriment to continued HOA board violations of the law and their contractual obligations. This unconscionable state of affairs is the result of the failure to enact legislation to hold HOAs answerable to the law. It is the public policy set by the state legislatures, themselves, as found in their enacted laws to hold and place the HOA and its leadership above the law.

 

If Trump is not impeached and removed from office, there would be little hope that the state legislatures would feel compelled to honor their oaths to uphold the US Constitution and to hold HOA-Land to the laws of the land. The shameful conditions of HOA-Land statutes will continue with little fear of Congressional interference. Without the fear of enforcement – shared by HOA- boards — State legislatures would be given an enlarged “free ride” that violates the US Constitution.

 

Author’s note:  The public needs to stop being conned by “political correctness,” which is the real-world embodiment of Orwell’s Newspeak.

“Many can see the parallels and extensions of Orwell’s 1984 in the real 1984, and current world. In 1949 George Orwell published 1984 where the fictional Oceania (formerly known as England) is a totalitarian state that has instituted a new society designed for the survival of the country. . . . Thought Police (don’t speak out or question, or else); Doublethink, creating the ability of the people to hold and accept two contradictory thoughts at the same time; Newspeak, the official language, replacing English, that redefines words and concepts; Ministry of Truth, the agency of propaganda and historic revisionism; and the Ministry of Love, the agency of regulations and enforcement.”[3]

Political correctness is not ethical or moral correctness! It has been instituted in the US to support the government from attack or criticism. Its purpose is to intimidate the public, by social ostracization, from its right to free and open political free speech and discussion. And it has been very successful both in general and in regard to HOA members.

 

References

[1] Definition of HOA-LAND:  HOA-Land is a collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States. For more see, Defining HOA-LAND: what it is. (George K. Staropoli, HOA Constitutional Government.)

[2] See in general, “HOA political dynamics: totalitarian democracy.” George K. Staropoli, HOA Constitutional Government.

[3] George Orwell’s 1984 is alive and well in HOA-Land, George K. Staropoli, HOA Constitutional Government.

The future form of HOA-Land

A little earlier I had commented that HOAs are here to stay, but face strong reforms. It was an appeal for all to get their voices heard and take the HOA-Public Attitude Survey. Allow me to clarify my position.

“HOA” has 2 common connotations: as a model of authoritarian private local government or as the real estate “package” of amenities, landscaping, and certain infrastructure. I have long maintained that the real estate package represents the end but the HOA government model is not the best means to achieve that end. And that state legislators have treated HOAs as independent principalities with their pro-HOA laws and support of de facto governments devoid of constitutional protections for HOA members.

The overwhelming reform legislation across the country presumes and accepts the validity of the governing documents and state laws. This is a loser position!

It implies the acceptance of the legitimacy of legal arguments supporting the governing documents and pro-HOA statutes. Advocates should be denying their validity and constitutionality; by failing to oppose these defensive arguments homeowners have put themselves in the weaker position of, Please sir, can I have some more justice? An example of reform legislation that challenges fundamental wrongs has been summarized in HOA Common Sense and the HOA-Land culture is presented in The HOA-Land Nation Within America .

Example: not only demanding the licensing HOA managers but holding them to the same statutes and rules   –  not CAI’s standards — as required of city/town manager; holding the BOD to the same standards as city/town councilmen. The constitutional arguments to use include: a violation of the equal protection of the law, holding the HOA as a state actor, or an unconstitutional special “franchise” of the state relating to these real estate “packages.” (“franchise: an authorization granted by a government or company to an individual or group enabling them to carry out specified commercial activities, e.g., providing a broadcasting service or acting as an agent for a company’s products.”

Advocates must not ignore these broad, constitutional arguments but educate themselves to understand them. I am urging advocates and homeowners to follow the path of the Founding Fathers who stopped toying with the Articles of Confederation as unworkable. Rather than continue to make the Articles work, they did away with them and created the Constitution of the United States.

HOA-Land will still be here but which form will it take? Spend another 30 years as before or go for fundamental reforms?

High RWA followers can be found in HOA members

This commentary is a copy of my Amazon review of Robert Altemeyer’s 2007 book, The Authoritarians.  “RWA”  is the author’s term for Right-Wing Authoritarian followers, where the term ‘right-wing”  is used to designate people who “traditionally submit to authority.” Altemeyer writes,

Followers submit too much to the leaders, trust them too much, and give them too much leeway to do whatever they want–which often is something undemocratic, tyrannical and brutal.

My concern focused on the blind, to me, acquiescence to whatever the BOD told the members what it wanted approved, especially when it involved amendments to the governing documents. When presented with hard, concrete evidence of violations of the law or governing documents, the majority of the members just gave the BOD a blank check. The conduct of the BOD and numerous members echoed the behavior described by Altemeyer in the opening chapters of his book: a defense of the board, attacking the “whistleblower,” refusal to discuss, or debate or hear any opposition, with the ultimate dogmatic final defenses coming into play.

Reading the opening chapters of The Authoritarians immediately brought to mind the conduct of HOA members. Chapter 6 on legislative RWAs also hit the button since state legislators fell into the same defense of HOA-Land (the fragmented collection of HOAs across the country) with a dogmatic reaction. Chapter 7 on “What to do” was not surprising as I’ve attempted his short-term suggestions and failed just as Altemeyer stated. If I had been aware of Altemeyer 10 years ago I would have saved a lot of time.

My own analysis of this blind obedience is presented in my book, HOA-Land Nation Within America, (Part 1, “The Cultural Dynamics of HOA-Land”) and fell short of making a solid case for this behavior. HOA right or wrong rested on the pro-HOA national lobbyist indoctrination into its authoritarian model of HOA governance. Altemeyer gives me solid ground to explain this behavior and his suggestions on how to combat it in the long term.

What is needed to confirm my analysis, however, is to run the RWA scale against HOA members and BODs, and to survey their views on a number of HOA aspects, as Altemeyer did with his students and state legislators.

If you truly want to understand how HOA-Land is undermining American democracy, The Authoritarians explains the contributions by the majority of the 23% Americans living in HOAs. He offers a path to returning to the fundamental values and principles of The Founding Fathers.