Tag: HOA-Land

HOA representative government and consent of the governed

George Washington wrote in his Farewell Address (1796), the Constitution “is the offspring of our choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles . . . .”  The Declaration of Independence asserted “that to secure these [inalienable] rights Governments are instituted among men, deriving their just powers from the consent of the governed.”

These two quotes contain the fundamental principles of representative democracy adopted by means of a social contract, the Constitution, which are freedom of choice, ”just powers,” and “consent of the governed.” By virtue of these fundamental principles of democracy, HOAs cannot be considered as democratic governments. Period!

In his article explaining the meaning of the Constitution,[1] Edwin Meese III explains that “consent is the means whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate [and hence just] is whether that government rests on the consent of the governed.” 

In order for HOA governments to be just, legitimate and compatible with the Constitution these fundamental principles must be honored and supported. HOA “constitutions,” those CC&Rs, are not compatible with the US Constitution.

Meese further addresses the differences between “consent of the governed” and “will of the majority” that is a pro-HOA mantra. “The ‘consent of the governed’ describes a situation where the people are self-governing in their communities . . . into which the government may intrude only with the people’s consent.”

He explains that the “Will of the majority” is a political mechanism for decisions to be made by the government. In other words, the BOD makes decisions on behalf of the members based on its view of the majority will or some survey of the members. In short, in a representative democracy, like that attempted by the HOA legal structure, not all of the members are in agreement with or consent to the decisions of the BOD. It raises the issue of ‘the tyranny of the majority’ when the minority is not given due respect nor the ability to freely and equally speak out on HOA governmental issues.

Meese contends that the Founding Fathers[2] understood this weak point in a democratic government and the need to “insure domestic tranquility.”[3]

[A] government [must rest] not only on the consent of the governed, but also on a structure of government wherein the views of the people and their civic associations can be expressed and translated into public law and public policy. . . . Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens.

The structure of HOA governance is not based on and contradicts fundamental American principles and traditional values.  Furthermore, the CC&R are not even based on contract law 101 with its requirements for freely entered into, full disclosure, and explicit agreement to be bound,  but on the real estate doctrine of equitable servitudes.

To learn more about your loss of these rights and freedoms see The HOA-Land Nation Within America.

 

References

[1] Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.

[2] See in general, The Federalist Papers, #51, James Madison who explained, “Justice is the end [goal] of government. It is the end of civil society.”

[3] Preamble to the Constitution.

Why aren’t HOAs held as state actors based on USSC criteria?

Allow me to congratulate Deborah Goonan on her fine article, “USSC rules in favor of property rights — how will this affect HOAs?”[1], on constitutionality as applied to HOA-Land.  I also congratulate her for venturing in into the long standing, highly controversial and muddied waters of state actor legal doctrine.

State actor doctrine is too deep and complex to be fully addressed in a blog. I have followed this is for over 15 years having read most of the cases cited by the USSC.  Consequently, I will state some views that I feel will help her subscribers/readers to better understand a broader picture of this doctrine.

First,  the 2 fairly recent USSC cases, Knick and Manhattan, mentioned in Deborah Goonan’s post well illustrate the loss of homeowner constitutional and fundamental rights resulting from the fact that HOAs are not subject to the Constitution as are all other governmental entities; and that state legislatures have refused to make it so.

Second, the rationale for the public policy lack of vigorous pursuit of state actor doctrine in the case of the well documented and pervasive conduct of HOA boards is a slippery-slope fear factor.  This fear is stated by the USSC in Manhattan as:

Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

And so, interfering and applying state action to HOAs appears to be avoided to protect your individual freedoms.  I’m somewhat confused. Are you?  Adopting this state policy with respect to HOAs is highly misguided!

Third, although Goonan quotes the USSC use of 3 requirements for state action, the Court did reference the 2001 Brentwood v. Tennessee Secondary School[2] opinion that contained a summary of the criteria the USSC set for determining state action.  Omitting the obvious “exercising exclusive government functions” that requires no further discussion I listed these state actor criteria:

    1. From the State’s exercise of “coercive power,”
    2. when the State provides “significant encouragement, either overt or covert,”
    3. when a private actor operates as a “willful participant in joint activity with the State or its agents
    4. when it is controlled by an “agency of the State,”
    5. when it has been delegated a public function by the State
    6. when it is “entwined with governmental policies,” or
    7. when government is “entwined in [its] management or control.”

In regard to the institutionalization of HOAs, or as I refer to it, HOA-Land, the above tests 1 – 3, and 5 -6 would provide clear and convincing evidence that the policies of state legislatures, as demonstrated by the enacted pro-HOA laws, have created HOAs as state actors who willingly undertake state actions

Fourth, As you can see, there is plenty of “ammunition” to argue that HOAs are state actors.  By the simple use of the word “may” in the statutes raises the highly controversial question of: Are HOAs state actors? “May” is commonly found as “the board may set the time of the annual meeting,” or “may charge . . . .”  The overlooked impact and consequence of this word is to legalize activities and actions that were all-to-fore not legal rights granted to the HOA.  They are now made a legal activity, if your BOD so chooses.[3]

That’s easily “supportive”, “cooperating,” “encouraging,” and “entwined” in both public policy – more taxes from high value properties – and in the “management and control” of the HOA as we see how state laws mimic the governing documents, thereby legalizing them.

Fifth, HOAs have been described as sui generis – one of a kind.[4]  Sui generis presents a view of HOAs as private government principalities supported by your state legislature and is used to justify special laws for a special organization, the HOA. Existing constitutional law is inadequate to support this model of local governance and so, in violation of US and state constitutions,  we see all those HOA/PUD/condo “Acts” in almost every state.  These Acts constitute a parallel supreme law of the land with sharp contrasts to the US Constitution.

 

Finally, state actor doctrine can be a very powerful tool in the hands of HOA reformers, but the public policy of a feared slippery-slope defense must be overcome. It can be overcome IF advocates make a strong case that this public policy as applied to HOA-Land is misguided; and the failure of the courts to apply state actor doctrine harms the people living in HOAs.

In the name of justice, a serious look into this doctrine with regard to HOAs must be undertaken by independent think tank political scientists under the auspices of a Congressional mandate. Like setting up and independent counsel to conduct the investigation into HOA-Land.

 

References

[1] “USSC rules in favor of property rights — how will this affect HOAs?”, Deborah Goonan,  IAC, July 15, 2019. Contains links to the 2 USSC cases.

[2] Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001). I have made frequent reference to Brentwood in my Commentaries in HOA Constitutional Government.

[3] “Are HOA state actors created by statutory use of shall/may?,” George K. Staropoli, HOA Constitutional Government (April 2019).

[4] A non-inclusive list: Tyler P. Berding, “The failure of the HOA to protect against obsolescence”; Steven Seigel, attorney who analyzed Twin Rivers NJ decision, Wm & Mary Bill of Rights Jnl 1998.

As an HOA member, “Are you a citizen of the United States of America?”

“Are you a citizen of the United States of America?”, asked Trump in his news speech today[i].  And he added, “There was a time when you could proudly declare  ‘I am a citizen of the United States’.”

In 2012 I raised the issue of HOA members being US and state citizens in my proposed Arizona bill[ii].

Therefore, 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.

As part of the bill I declared,

The association hereby waivers 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.

Very disappointedly, there was no outcry, there was no demand to assert citizenship by HOA members or homeowner rights advocates.  That says a lot, doesn’t it?  I am not sure as to whether the HOA legal scheme and members shunting the Constitution contributed to the Washington dysfunction, or was it just a top-down, a trickle-down public sentiment pervading HOA members?

 

Discover the truth about HOAs!  Read The HOA-Land Nation Within America exposé on sale at Barnes & Noble (BN.com);  Amazon.com, KDP Unlimited & Lending; Google HOA-Land Nation. Join the many others who have received a copy of the eBook or paperback and open a broad discussion.

Notes

[i] See Video of speech, FOX10. The only site I could find that recorded Trump’s opening words. Not even on the official WH website.

[ii] See “Declaration of US and State citizenship” in HOA member Declaration of US and State citizenship. The bill was not sponsored or backed by advocates.

 

HOA-Land Nation “Did you know?” Part 2

HOA-Land Nation “Did you know?”

Release No. 2 —  July 4, 2019

As an HOA member, did you know that:

 ·         Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties or punishments for violations of state laws or the governing documents?  Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.

 ·         The much touted HOAs are democratic because members can vote is utterly without merit?  Fair elections protections, as compared with those in the public arena, do not exist under a corporation law.  Members do not have equal access to HOA newsletters, website, member lists, and use of common amenity meetings rooms, among other denials.  

 ·         To bring about equal protection of your rights, the HOA attorney sides with the BOD, his client and not you, the membership.  And as a CAI member, lobbies the legislature to maintain conditions as they are – authoritarian HOA government.

 ·         You still retain your rights, privileges and immunities as a citizen but are denied these rights under the private HOA legal scheme, functioning outside constitutional protections.

 Discover the truth about HOAs!  The truth shall set you free!  Read The HOA-Land Nation Within America exposé on sale at Amazon.com. 


Sun Cities rec centers: politics at the AZ legislature

I have cautioned homeowner rights advocates to be respectful of their legislators as they are the only game in town to bring about HOA reforms.  But there come times to hold the legislators accountable for their abuse of discretion and power amounting to violations of the US and Arizona Constitutions, and failure to “establish justice, insure domestic tranquility . . . promote the general welfare and secure the blessings of liberty.”  (Preamble to the US Constitution).

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Background

Many hours were spent in researching the facts surrounding this bill to determine the real intent behind its sponsorship and the true motivations for its support.

The AZ House GOV committee just passed this reincarnation of the failed HB 2374 by a 6-5 vote (Reps. Kavanagh, Payne, Blackman, Petersen, Rivero and Thorpe all voting in favor of the bill) with the assistance of Senator Borrelli who allowed SB 1094 to be used for a S/E replacement of HB 2374. Their reasons are completely untenable giving 1) the nature of the bill, the misleading assertions, convoluted language including double negatives, 2) unbelievable legislative intent “to clarify” a 1994 bill some 24 years later, and 3) the constitutionality of the proposed statute.

Before proceeding, it must be understood that in 2015 the Superior Court in Anderson v. SCRC held the Sun City rec center, SCRC, to be an HOA.[1]  Now, 4 years later, this bill is an attempt to overturn this ruling.

In reading the bill several statements caught my attention.  I will explore them one at a time.

First, there is the question of the purpose of “before January 1, 1974.”  I cannot find any justification for this date, as prior dates are used to get around grandfathering problems to avoid litigation.  Here the bill seeks application to ‘associations” prior to this date, under the same conditions found in today’s bill.  However, Sun City was incorporated in May 1968 and SCW in Sept. 1979.  Where does 1974 come from?

1.  Nature of the bill et seq.

SB 1094 is an attempt to avoid my position that the original Sun City bill, HB 2374,  violated the AZ Constitution being a special law for a particular entity, the 2 Sun Cities.  The heart of the bill has now become permitting the “voice of the people” to be heard to reject or uphold the PUD statutes in question.  In what I referred to as cute, slight-of-hand manipulation to confuse the public, the bill permits a vote of the HOA members to decide whether or not their rec center should be an HOA or not. Say what??

The bill is cleverly worded with convoluted statements containing double negatives[2] or wording amounting to a double negative.  “This chapter [regulating HOAs] does not apply [to] a nonprofit corporation . . . that does not have authority.  And then adds an illogical approval by the membership to not accept –to reject —  the law. It seems designed to cause confusion. Read Subsections C and D carefully.

Further confusing is the redefinition of “Association” to include associations not operating as a de facto HOA to elect to become an HOA and be regulated. Say what?

Each of the 3 sections discussed is a statement that the rec centers, now “harmlessly” disguised as “associations,” are exempt from the PUD Act and regulation by the state, unless an illogical vote by the membership approves obedience to the law  — we want to be an HOA — as ruled by the court in Anderson.[3]   (This aspect of the bill is covered in more detail in (3) below).

  1. Outrageous claim of legislative intent

The PUD enabling act of 1994 is a short 2-page, 6 sections Act, of which I have a copy and have read.[4]  It does not contain any statement of legislative intent.  Its version of 33-1802, Definitions, remains essentially intact, for our purpose here, after 24 years.  SB 1094 claims to uncover an error, an oversight into the legislative intent and seeks to clarify it and set it straight. This defense is without merit, plain and simple!

The bill in its new form remains an unconscionable support of a special law for a special, miniscule application for just 2 HOAs: Sun City and Sun City West.  Furthermore, by issuing this “legislative intent” the Sponsor claims that it speaks for all the Arizona legislators aside from the 6 House GOV committee Representatives who supported SB 1094

  1. Unconstitutional delegation of legislative power

SB 1094 does not escape the constitutionality challenge  that it is an invalid delegation of legislative authority to private persons, flying in the face of long held doctrine declaring such acts as unconstitutional. This unconstitutional delegation was dealt with in McLoughlin v. Pima County  (CA-CV 2001-0198, Div. 2,  2001) concerning zoning restrictions determined by the people. In its discussion the Court quoted from several cases, and for brevity,  

“However, it is a well-established theory that a legislature may not delegate it’s authority to private persons over whom the legislature has no supervision or control.” 

The bill declares that a rec center (after redefining what an HOA is) is not subject to HOA regulation unless a majority of the owners want it to be as described in (1) above.  The people, the homeowners, are making law! That’s a mockery of the law! It is an unconscionable bill that turns the Constitution on its head and grants more freedom to the independent HOA principalities.

It is a very astute political ploy and a surprising acknowledgement of the political and social dynamics at work within HOAs.[5]  The legislative mantra, here and in other states, is that the homeowner is free to vote on amendments under the governing documents.  The wording of this bill shows that the legislators know better and understand that overthrowing the HOA board is a very high barrier to overcome.

The underlying misleading picture ignores the fact there is general apathy and indifference to homeowner participation, just like with the voter outcome in our general public elections.  In short, the likelihood of an approval of an amendment is very small, especially when there would be no lobbying by the HOA board to support the vote. Why didn’t the sponsor construct the bill to seek a positive response by the membership for approval, rather than allowing the law to be changed by the highly likelihood occurrence of a default vote —  people not voting.   It’s a rigged bill to overturn the Anderson ruling by the court.

Good ol’ fashioned politics at work “here in River City.”

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The information contained in this written or electronic communication, and our associated web sites and blog, is provided as a service to the Internet community and does not constitute legal advice or opinion. We perform legal research and case analysis services, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in any report, finding, recommendation or any communication, or linked to this web site and its associated sites.  No document prepared by HALRIS or George K. Staropoli is to be considered a legal document to be filed in a court or in a legal proceeding. Nothing provided by HALRIS or George K. Staropoli should be used as a substitute for the advice of competent counsel.  George K. Staropoli and no person associated with HALRIS, AHLIS, HOA Constitutional Government or Citizens for Constitutional Local Government are attorneys nor are employed by an attorney.

Notes

[1] Anderson v. Recreation Centers of Sun City,  1CV 2015-012458, Maricopa County (2018).
[2]   “Double negatives are two negative words used in the same sentence. Using two negatives turns the thought or sentence into a positive one. Double negatives are not encouraged in English because they are poor grammar and they can be confusing.” Your Dictionary.com. 
[3] Supra n. 1.
[4] See Enabling Act.
[5] See The HOA-Land culture (2019).  “We must make the injustice visible”  Mahatma Gandhi.