Tag: law

In a democracy approaching corporatism, HOAs are iconic

America is still a democracy, I hope, and firmly in support of the capitalistic economy philosophy – people are  free to do as they please.  This freedom rejects government restraint and relies on the competing self-interests of the people.  In simple terms, “what’s good for business is good for the country.”

But, is America going off the deep end of capitalism toward fascism?  “Fascism should more appropriately be called corporatism because it is the merger of state and corporate power.”  So said Benito Mussolini, the founder of modern fascism in 1922 Italy.   How much of a democracy can exist under a fascist system that places government power in the hands of corporations?  Just look at the fantastic wisdom of the US Supreme Court in its United decision that corporations are people and can make campaign contributions.  And how about its Kelo decision where the court redefined “government use” as “government purpose” and took away a person’s home for private corporation development.

And then there’s this thing called a planned community, with its corporate form of private government commonly known as a homeowners association.  Where law firms and property management corporations have extreme influence or almost complete control of the HOA. Where the legal structure and pro-HOA statutes favor the corporation government over the rights, freedoms, privileges and immunities of the people.

In a democracy, how could this come to be?  In a democracy the answer must lie in the will of the people that either supported this evolution, or idly stood by and did nothing.  Mayer wrote (They Thought They Were Free), speaking of the Nazi take-over of democratic pre-war Germany,  that the “good” Germans went along “in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.”  In America today, Rev. Jim Wallis wrote in 2010 (Rediscovering Values), “What has been deliberately and carefully made ‘socially acceptable’ was, not too long ago, thought to be irresponsible – both financially and morally.”

It was the will of the people, the voice of the majority that spoke and elected our representatives:  the President, Congressmen, and state legislators and governors.  And it is the voice of the people to accept HOAs in spite of its rejection of our founding principles in favor of corporatism, with its self-interest motivations for profits and property values. And we have become true believers in that “what’s good for the HOA is good for the member-owners.”  Or, has the voice of the people become the voice of the corporations?

American founding principles stand at odds with the self-serving HOA corporatism of the HOA-state objectives, which prevail over our founding principles.  This is the fundamental issue to be resolved!  And it cannot be resolved without legislation that addresses violations of our founding principles as contained in American organic law – the US Constitution, the Bill of Rights, the Articles of Confederation and the Northwest Ordinance of 1787. 

In a democracy, the people must act to reject corporatism/fascism and demand conformity with American principles of democratic government. But, that first requires the election and enlightenment of representatives who understand the need to return to our founding principles. 

Why Homeowners Associations (HOAs) should and must be made political subdivisions

Simply stated, the following questions remain unanswered by state legislatures or HOA special interests:

1.      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?

 2.      Can private parties enter into contractual arrangements using adhesion contracts and a constructive notice consent, which serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?

Failing to address these fundamental questions has permitted HOAs to exist as de facto governments functioning as a second form of political government within the US. HOAs reject the US Constitution by their actions — forget the words.  Consider the following:

1.      “A rose by any other name is a rose.”  Taxes are HOA assessments; ordinances are rules and regulations; board is the legislature/city council; government agency is architectural control committee (ACC); citizens are members; judiciary is board/ACC; constitution is the CC&Rs; laws are the by-laws; etc.

2.      State legislatures have not enacted laws that delegate their legislative functions to the HOA private entities with oversight or constitutional compliance, as required by long standing legal doctrine. 

 [i]t is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control. . . .The legislature cannot abdicate its functions or subject citizens and their interests to any but lawful public agencies, and a delegation of any sovereign power of government to private citizens cannot be sustained nor their assumption of it justified.[i]

 3.      Furthermore, “Agreements violating constitutional provisions, county codes, and municipal ordinances are illegal to the same extent as agreements violating statutory enactments.”[ii]

4.      For those states with “home rule” laws that permit a wide range of independent law-making at the local level, the governing body remains subject to the constitution and laws of the state. 

5.      Attempts to enumerate the specific functions of an entity, which are unique to political governments and make them a government and not something else, like the archaic public functions test of 1946,[iii] fail as being contrary to constitutional law.  Compare these questionable definitive “public” functions to the legal requirements set forth in the laws of each state applicable to municipal governments.

6.      The unique factor that determines the broad concept of “government” is simply:  any governing body that controls and regulates the people within a territory is a de facto government. Take Cuba for instance, a de facto yet unrecognized government. Sadly, HOAs are not recognized either.

Modern states are territorial, their governments exercise control over persons and things within their frontiers. . . . A state should not be confused with the whole community of persons living on its territory [such as churches or corporations].[iv] 

7.      Several political scientists believe that HOAs should be declared as sui generis (one of a kind) private governments.  However, evidence based on existing HOA state laws have made HOAs an “arm of the government” (state actors) according to the US Supreme Court criteria:[v]   state protective statutes reflecting a cooperation with HOAs, through state support or coercion; by a symbiotic relationship, close nexus, or an entwinement between the state and the HOA.

In general, every special or private law which directly proposes to destroy or affect individual rights, or does the same thing by restricting the privileges of certain classes of citizens and not of others, when there is no public necessity for such discrimination, is unconstitutional and void.[vi]

8.      Defining HOAs as a sui generis entity without the requirement that HOAs are indeed bodies politic or state entities rejects the US Constitution. HOAs have seceded from the Union by virtue of their private contracts that do not hold the HOA governing body subject to the laws of the land. 

9.      CC&Rs are created by private parties, none being an actual member or resident of the subdivision at the time of formation, who enter into contractual arrangements that have been described by the courts as the HOA’s “constitution.”  The CC&Rs serve to regulate and control the people within a territory (an HOA), thereby circumventing the application of the Constitution and, specifically, the 14th Amendment equal application of the laws and due process protections. 

A statute infringes the constitutional guarantee of equal protection if it singles out for discriminatory legislation particular individuals not forming an appropriate class and imposes on them burdens or obligations or subjects them to rules from which others are exempt.[vii]

In order for a waiver of a constitutional right to be valid, it must be made voluntarily, intelligently, and knowingly and with sufficient awareness of the relevant circumstances and likely consequences.[viii]

 10.  The persistent and profuse arguments, by the HOA special interests, that HOAs are not governments can easily be seen as attempts to avoid HOAs being subject to constitutional conditions and restrictions that protect the people.  “In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . .”[ix]

 

Further readings

Commentaries:                               

1.       The Legitimacy of HOA Governance

2.       AARP Amicus Curiae brief in Twin Rivers NJ constitutionality suit

3.       The Constitutionality of state protected homeowners associations

4.       Why haven’t the 1983 HOA problems of America II been resolved?

5.       HOA Case History: state actors or mini/quasi government

 

General reading:

1.       Beyond Privatopia: Rethinking Residential Private Government, Evan McKenzie, Urban Institute Press, 2011.

2.       Establishing the New America of Independent HOA Principalities, George K. Staropoli, Starman Publishing, 2008 (ISBN 978-0-9744488-3-1).

3.       Neighbors AT War! The Creepy Case Against Your Homeowners Association, Ward Lucas, Hogback Publishing, 2012.

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

5.       Villa Appalling! Destroying the Myth of Affordable Community Living, Donie Vanitzian, Villa Appalling Publishing, 2002.

                                               

Legal Authority Notes:

[i]    Emmett McLoughlin Realty v. Pima County, 58 P.3d 39 (2002).

[ii]   17A Corpus Juris Secundum Contracts § 213.

[iii]  Marsh v. Alabama, 326 US 501 (1946); Shelly v. Kraemer, 334 US 1 (1948).

[iv]  “State,” Black’s Law Dictionary, 7th Ed.

[v]    Brentwood v. Tennessee School, 531 US 288 (2001).

[vi] 16B American Jurisprudence 2d Constitutional Law § 874.

[vii]  16B American Jurisprudence 2d Constitutional Law § 871.

[viii]  16 Corpus Juris Secundum Constitutional Law § 82.

[ix]   Community Associations Institute (CAI) amicus curiae to NJ Appellate Court in CBTR v. Twin Rivers HOA, 890 A.2d 947 (2004).

HOA Enlightenment Movement is forcing legislatures to protect property values

More and more homeowner rights advocates are realizing that bad media coverage is hurting property values.  They are demanding their legislature to stop the abusive, rogue boards that are giving HOAs a bad image.  The HOA Enlightenment Movement, the surging awareness that HOA regimes have serious legal problems, is the long delayed confrontation with reality that is a “wakeup call” for the legislatures. 

This “no negatives about HOAs” unspoken alliance that has served the industry’s special interests by keeping things under wrap, and not letting the sunlight expose these legal issues that include violations of constitutional law, is collapsing.  The legislatures can no longer stand by with impunity and support the HOA industry through their cooperation, coercion, close nexus in HOA operations, and denials of the equal applications of the laws of the land.  Only just and fair laws will stop the negative exposure of HOA regime un-American conduct.

In Florida, Cyber Citizens for Justice, Jan Bergemann, President, calls the legislature’s attention the following issues:

1. Florida’s economy hinges on a healthy real estate market. Many new retirees, snowbirds and investors are needed to create a healthy real estate market.

2. The nightmare of living in an HOA is hurting our state’s image of retirees moving to Florida to live a hassle free life style.

3. Reforms should create more consumer protection, making Florida again attractive for potential buyers of homes and condos.

In North Carolina, the National Coalition for Homeowner Association Reform group, Jim Lane, Founder, wrote to the legislature,

“Our homes and neighborhoods are at stake — as of now 50% of Homeowners who don’t want an HOA begin to ‘bail out’ of their HOA homes and Buyers go elsewhere, while Property Values go down.”

And in Nevada, newly appointed member of the HOA Ombudsman commission, Bob Frank, is asking the legislature for constitutional protections:

Attached is a BDR intended to help improve HOA property values in Nevada by solving HOA management problems. . . . It is proposed to be labeled the ‘HOA Property Values Enhancement Bill.’ . . . The future speed and depth of recovery of our HOA property markets may depend on this initiative. I believe that most people in this state will be very grateful if you can get HOA contracts bound to our US and NV Constitutions.

Investigative reporter Ward Lucas also echoes this concern for subjecting HOAs to the constitution as is required of all government entities.  In his new book, Neighbors At War!, which is not a book to laugh at but a serious expose of HOA life and what can happen to naive homeowners, he writes,

Your constitutional rights are being secretly shredded . . . A tiny but growing band . . . is at last beginning to say, ‘Enough!.  They can no longer stomach the kind of meaness that can destroy the reputation of an entire neighborhood.  The World Wide Web is giving them a forum they didn’t have before.

It’s only through the challenging, confrontation, and exposure by The Enlightenment Movement followed with the demand for just and fair laws can change be achieved.  Advocates must continue to enlighten state legislators and demand change.

Additional reading on why homeowners are apathetic, aside from the fear of affecting property values, and allow the oppression and injustice to control their lives, see Hign Noon in HOA-Land: members who permit lawless boards to function.

CAI attorney appeals to HOAs to challenge AZ ALJ due process statutes

Arizona CAI member, and president (as of Jan. 1, 2013) of its College of Community Association Lawyers, Scott Carpenter, makes several misleading statements about the constitutionality of Arizona’s Office of Administrative Hearings adjudication of HOA disputes.  (Top 10 Legal Issues for 2013 video seminar).

Speaking of the constitutionality of the statute, Carpenters states, “We took it up to the court of appeals and the supreme court of Arizona and they said this whole process is unconstitutional.”  He appears to be speaking about the 2008 Gelb v. Casa Contenta HOA in OAH, the only one that was eventually appealed to the Arizona Supreme Court. The case was won by the HOA, but Gelb appealed to the superior court. In superior court the HOA attorney, the winner, challenged the constitutionality of the law in a case that its client had already won! What was the real purpose of the appeal? For the HOA or for CAI and Carpenter.

Allow me to clarify the events relating to Carpenter’s obsession with OAH due process for homeowners. It was the third OAH challenge by Carpenter in his attempts to shutdown OAH adjudication. The first was held to only apply to the HOA in the decision in question. The second was held to apply by a superior court default decision to all HOAs, but Carpenter needed an appellate decision in order for the unconstitutionality ruling to become precedent, binding, on all Arizona HOAs.

 While he got his appellate decision, Gelb appealed the decision to the Arizona Supreme Court.  I filed an amicus curiae brief to inform the Court of certain facts relating to the conduct of the HOA attorneys and lower court decisions.  (See Advocate submits amicus brief in AZ supreme court appeal of HOA due process).  In spite of Carpenter’s misleading statement,the SC did not hear the appeal, but issued an order that the Gelb appellate decision of unconstitutionality was not to serve as ANY precedent, and thus not binding on future cases. Carpenter didn’t get what he wanted

                                                                                           

MINUTES No. 3161 (May 24, 2011) Arizona Supreme Court   CV-10-0371-PR

 GELB v DEPT OF FIRE BUILDING AND LIFE/SEDONA CASA

Court of Appeals Division One 1 CA-CV 09-0744

 

ORDERED: Appellant’s Petition for Review = DENIED.

FURTHER ORDERED: The Court of Appeals’ Opinion shall not be published,

pursuant to Rule 111(g), Arizona Rules of the Supreme Court.

 

(The appellate decision shows as a MEMORANDUM).

 In regard to the OAH bill becoming law, Carpenter brazenly declares a conspiracy to pass this law saying “When the executive and legislative branch conspired together to deprive the judicial branch of their essential role . . .” Talk about a loaded statement that the sponsor, and now Senate President, Andy Biggs and Governor Brewer would love to hear, especially when Carpenter adds, “It is still unconstitutional.” This is pure one-sided opinion, an ipse dixit – no supporting arguments.

 Carpenter finally makes his real motives plain, in this video, when he encourages people to file suits to raise a constitutionality challenge to the new 2011 law. He also laments that “the whole process is contrary to HOA law” in regard to the payment of attorney fees, implying some sort of superiority of restrictive covenants over constitutional law. He fails to fully inform his audience and viewers of the fact that attorneys are not required at OAH, and that it’s the HOA’s decision to spend and pay for these unnecessary fees.

 

You were given a Thanksgiving gift — the White House HOA petition

Earlier this month the people voted and chose the direction that this country should take. Today, YOU can choose the direction that you want HOA private governments to take by signing the We the People petition.

We are asking Washington to declare that the people in HOAs are still US citizens with all the rights, freedoms, privileges and immunities of citizens. Or, by not signing this petition you are choosing a continuance of another 48 years of “same ol’ same ol.’”

It is a well documented fact that state legislatures have not and do not support your rights and freedoms once you buy into an HOA. It is a well documented fact that state legislatures permit HOA de facto governments to deny and strip you of your rights. Their justifications fail to meet accepted US Supreme Court tests of the surrender of your rights and freedoms.

Only the Federal government can act to put things right. Our petition is a simple request that HOAs be subject to the US and state constitutions like all other governing bodies – towns, villages, cities, special districts, etc. This is not a democrat/republican or conservative/liberal issue, but a legitimate argument to uphold the people’s rights and freedoms as set forth in the US Constitution, the Declaration of Independence, and the Bill of Rights.

Only your voice can make things happen! Speak up today! Your submitted petition is needed to help set things back on course as the Founding Fathers intended. Your submitted petition is needed to create a dialog between the people and their elected representatives in Washington.

Submit your petition at http://wh.gov/IlTM   (Expired Dec. 21, 2012 with a pitiful 76 petitions).

Have a Happy Thanksgiving!