What are we talking about when we hear “I live in an HOA” or “what are my HOA fees?” Allow me to clarify some important concepts and definitions that I have employed to help in understanding what we are really talking about.
The term “HOA” is commonly used in 2 different aspects.
While commonly used to refer to the alleged community, in reality the “community” is a real estate “package” of homes, landscaping, amenities, and rules.
“HOA” more aptly applies to the association itself, which is the de facto – in fact – political governing body of the subdivision or real estate “package.”
“Government,” meaning political government, is defined in its general sense as “the person or group that controls and regulates the people within a territory.” Since your subdivision is a territory, that makes the HOA a truly political government.
“Private government” is a de facto government as defined above not incorporated under municipal statutes but under nonprofit corporation statutes. As such, it is a functioning government unrecognized by the state as Cuba had been for years.
“Quasi-government” simply means for all intents and purposes having all the attributes of a municipal government, except the names have been changed to mislead the innocent public.
“HOA-Land” is my descriptive term for “the 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.”
“Structured tribalism.” Tribalism is a term currently in vogue to describe divisiveness in America. “Structured tribalism” extends that view to describe the intentionally planned policy for the acceptance and control of HOA-Land.[1] It views the fragmented HOA-Land as distinct villages and clans.
When I speak of restructuring the HOA, I am referring to the authoritarian, undemocratic body functioning outside of constitutional protections, and making it a democratic government subject to homeowner constitutional protections.
Stare decisis is the long-held doctrine underlying precedent or following and upholding existing laws. And if the laws are bad, well then, so are any new laws based on the bad precedent. Those of us as homeowner rights advocates are well aware of the harmful impact of stare decisis on homeowners. See Rejecting unjust HOA legal precedent(2010).
Stare decisis was a very big issue in today’s SCOTUS hearing on Roe v. Wade. Should this long held precedent be supported or not followed for reasons of “bad law” as argued by some. The principles governing stare decisis are, as should be expected, very complicated, so here’s the short of it as best I can determine.
Alexander Hamilton explained that “[t]o avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” But it is not a “mechanical formula” or “not set in stone.” The issues dealt with “strong grounds” because “the Court’s willingness to overrule its past decisions is the only way to correct an erroneous constitutional interpretation.” Was the precedent wrong in the first place (as now being argued with Roe)? Whether “less harm will result from overruling the decision than from allowing it to stand?
Advocates must make the courts realize that most of the HOA statutes in every state must be overruled on constitutional grounds. Otherwise, homeowners will never be able to rise out of the muck and recapture true US citizenship.
A quick and simple — but highly effective — bill that was proposed in March 2011 and will bring relief to homeowners being treated a second-class citizens by state laws in support of the HOA legal scheme. It was ignored by Arizona advocates and dismissed by the Legislature.
“No provision of any contract or any declaration of covenants, conditions, and restrictions . . . is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties . . . . Any representation or statement offered as clear and convincing evidence . . . shall include a signed statement containing the following, beginning with “I understand that I can ask that the following be read and explained to my satisfaction.”
“So reads an excerpt from my proposed “Truth in HOAs” statute that should be made law in each and every state. That is, if indeed the legislature stands by the Declaration of Independence and the US Constitution, which we are hearing so much about in the media nowadays.”
The “The Truth in HOAs Act,” as I called it, allows each state to modify the proposal in accordance with its state HOA/condo acts — shown in square brackets []. Also, subsection (3) contains a list of acknowledgements that can be tailored to each state’s advocate lobbying efforts. See Arizona Truth in HOAs statute (pvtgov.org). The essential bill section is contained in subparagraph (4).
“Therefore, in reference to subsection 3(d) above, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, “The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.”
This 2022 legislative session offers a unique, one-time opportunity to get the message across and to educate the legislators. Remaining silent on the issues only plays into the pro-HOA hands of CAI and offers excuses by the media not to cover HOA abuse. Not only will you find “ammunition” in support of your arguments as contained in the 2 above publications, but also in my Arizona Supreme Court amicus brief filed and accepted in Tarter v. Bendt (see note (vi) in Can HOA members expect justice in Arizona courts?).
My arguments are summarized in the Commentary. As is my approach, my arguments are supported by legal authority and hard evidence documents, which CAI ignores and YOU lose! They must be exposed if the legislators are to be fully informed on the reality of HOA-Land. As leaders who are internet publishers, actions speak louder than words!
This writing addresses the failure of the Arizona media, and in general all news media across this country, to report in-depth on HOA legal developments. In particular, as an example, its failure to cover the Arizona Supreme Court Petition for Review, Tarter v. Bendt (denied).
It was a defamation case brought by an HOA president dealing with matters of HOA governance. It resulted in a shocking $1,500,000 in damages against a homeowner who criticized the President. The homeowner raised the issue of the HOA president as a “limited-purpose public figure.” An amicus brief informed the Justices on the larger picture of protected speech in the recognized HOA public forum on matters of HOA governance.
If it were not an HOA case, it surely would have made widespread news.
Most of you probably ever heard of Edward R. Murrow (1940s-60s) newscaster that, the Radio Television Digital News Association has annually awarded the Edward R. Murrow Award to individuals who make outstanding achievements in electronic journalism. Award recipients have included Peter Jennings, Ted Koppel, Bryant Gumbel, Brian Williams, Katie Couric, Dan Rather and Tom Brokaw.
Here are memorable quotes quite meaningful for today’s media who have been silent on reporting HOA reality news.
“A nation of sheep will beget a government of wolves.
“We must not confuse dissent with disloyalty. When the loyal opposition dies, I think the soul of America dies with it.
“To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.”
In 2017 I posted a Commentary that focused on the failure of today’s media to uphold its obligation under the 1st Amendment to inform the people. This protected freedom of speech was granted for the above important purpose, a purpose that the media seemed to have forgotten.
“The media of today, especially the local news media . . . seem to be oblivious to important HOA bills before state legislatures. Bills that would affect some 20% [now estimated to be 24% or more] of the people across the country.
“There have been no in-depth analyses or debates of the HOA legal concept even at the national level, as the spread of HOA-Land is nationwide. The Sunday news talk shows, or by 20-20 and Dateline, are silent. There have been no discussions on whether HOAs, as de facto governments, should by made a government entity. Or whether state legislatures should continue to allow equitable servitude law to supersede contract and constitutional law. Or the lack of debate on the absence of “truth in HOAs” disclosures, similar to truth in lending and truth in advertising.
“Or what is the legitimate government interest to allow private governments to deny the equal application of the laws. Or to allow constructive notice – just take your deed — to bind unsuspecting home buyers to the CC&Rs sight unseen. Apparently there is no need to inform buyers at closing
Relevant to this Commentary, Maria Ressa (Filipino-American) just won the Nobel Peace Prize for 2021. The Nobel Committee announcement spoke to the role of journalism and its affect on democracy.
“Ms. Ressa and Rappler [her internet news site] have also documented how social media is being used to spread fake news, harass opponents and manipulate public discourse. . . . The Norwegian Nobel Committee is convinced that freedom of expression and freedom of information help to ensure an informed public,”
She is also author of How to Stand Up to a Dictator, a story of “how democracy dies by a thousand cuts” (to be released in July 2022).
My concern, since I was a teenager, was how do people make decisions and important choices, and why. It should be generally accepted today that we are facing a lot of harmful irrationality in many aspects of our society. It would seem, addressing the conduct, behavior and choices made by members of HOAs with respect to their HOA, and to the institution of HOAs in general, that the adage “My rationality is your irrationality and vice versa” is at play. (What you consider rational I consider irrational, and what you consider irrational I consider rational).
My many years of activism in HOA reform legislation and research into this issue led me to the strong belief that the forces and dynamics of cult behavior[1] and authoritarianism[2] were the chief factors in the behavior of HOA members; the majority of whom seem to act in a highly irrational manner that was harmful to their own self-interests – the HOA can do no wrong.
Well, thank goodness Steven Pinker[3] makes some sense of rationality by delving into the functioning of the mind from a cognitive psychologists point of view.[4] (It’s like trying to explain why the chicken crossed the road). Having a minor in psychology, I describe Pinker’s presentation as rather deep being directed more to Rationality 201 or even higher, Rationality 301, using college level course structure. The “meat” of his book, for my purposes, comes in Chapter 10, What’s Wrong With People, when he comes down to the level of the average person.
From the very start Pinker makes it clear that the average person does not understand scientific investigation, the mathematics of probability, formal logic analysis, syllogisms, forecasting, etc.. He simply uses his gut feelings, his intuition, which has always been mankind’s way of thinking.
Summarizing the author’s views, using annotations to simplify his learned arguments,
“To be sure, many superstitions originate in overinterpreting coincidences, failing to calibrate evidence against priors, overgeneralizing from anecdotes, and leaping from correlation to causation. [In more common terms, failing to vet the claims or to conduct due diligence].
“Social media may indeed be accelerating their spread, but the [appeal] lies deep in human nature: people . . . compose these stories, and it’s people they appeal to.
“The mustering of [reasons] to drive an argument toward a favorable conclusion is called motivated reasoning. The motive may be to [support] a favorable conclusion, but [also to] flaunt the [other sides] wisdom, knowledge, or virtue.
“People seek out arguments that ratify their beliefs and shield themselves from those that might disconfirm them.[Emphasis added].
“A large majority of Americans consider themselves less susceptible to . . . biases than the average American, and virtually none consider themselves more biased.”
Study the above statements by the author carefully. It should become apparent that they describe the why and how the bulk of HOA members blindly obey their HOA board of directors. They also explain the cult mentality of and the authoritarian appeal by the members (see Notes below). It demonstrates that the mindset of the majority of members is believing that their HOA is heaven on earth and the next best thing to Mom’s apple pie; they do not want that belief disturbed and— unconsciously — naturally adopt motivated reasoning to preserve their image of a better community, a better world.
Please understand the difference between a real estate condominium and planned subdivision with its desirable amenities, landscaping, and oversight on contractual violations from the association that is the authoritarian, governing body also commonly referred as the HOA. The former can be retained under the protection of Constitution now denied to the HOA members.
Applying Pinker’s findings, did the Arizona Supreme Court act irrationally in its denial to review the Tarter v. Bendt Petition[5] filed by the homeowner?
[3] Steven Pinker, Rationality: What It Is, Why It Seems Scarce, Why It Matters, Viking (2021).
[4] Cognitive psychology is the scientific study of the mind as an information processor. Information processing in humans resembles that in computers, and is based on based on transforming information, storing information and retrieving information from memory. Cognitive Psychology.
HOA Constitutional Government 