Tag: linkedin

Who is to be held accountable for continued HOA problems?

A Texas legislator bemoaned to the media the other day, “a decade and a half of lawmaker discussions with little progress.”  Another called HOAs “at least quasigovernmental,” and that “the scales are still tilted to HOA protections.” 

The Texas HOA Reform Coalition group wrote on March 19, 2011, 

But remember what legislators say in public and how they vote can be different when push comes to shove.  While legislators may feel more HOA reform is needed and say so publicly, in the end many legislators have other priorities they are unwilling to sacrifice in order to take a stand against the well-financed HOA lobbyists, lawyers, and more importantly the Texas builders who impose HOAs on subdivisions as a funding source.  (Texas House Committee Lashes Out Against HOAs).

This is just one recent example of the reasons that HOA problems have continued for over 47 years, since the introduction of the “game plan” by the Urban land Institute in 1964 (See TB#50: The Mass Merchandising of HOAs by ULI).  For  over ten years homeowner rights advocates have appeared before the state legislatures and presented their just and legitimate grievances in the states with heavy concentrations of HOAs — Florida, Texas, Arizona, California — for naught.  For over ten years advocates have “petitioned for redress in the most humble terms, our repeated petitions have been answered only by repeated injury.”  (Decl. of Independ.).  Now this social and political cancer has spread to such states as Montana, Washington, Alabama, North Carolina, Nevada, Colorado, and Pennsylvania to name a few.

The cause of the continued protection of these private, authoritarian governments that deny constitutional protections for homeowners, and  are allowed to operate unaccountable to the state, can be laid before each and every state legislature.  They and the individual legislators — excepting those too few individuals who had attempted to bring about much needed reforms, but who have attained very limited results against the strength of “the system”  — cannot say in all honesty, “not me, him or them.”  It is each of them who are accountable for the repudiation of our democratic system of government, much in the same manner that the German people succumbed to the National Socialist Party with its strident corporate supporters and were led astray.  (See section 5 of,  HOAs in America: the illusion of democracy in a dysfunctional republic).

It is well beyond the time for state legislators to see the reality before them and to make amends to the  good people of their state.  Information abounds in these various reform groups and on their internet web sites, available to those who truly seek a just and legitimate state government, and a local government answerable as all state entities are answerable to the Constitution.  No more shall private contracts be used as a devise to subvert the Constitution and our democratic form of government for their own persona agendas.

FL supreme court upholds private contract over constitution

 

This decision sounds really exciting, but . . . . . Read the relevant part of the Florida Supreme Court opinion (emphasis added):

 

The Grand’s declaration, which was filed in 1986, adopts the terms of “the Condominium Act of the State of Florida (Florida Statute 718, et seq.) in effect as of the date of recording this Declaration” and does not contain “as amended from time to time” language subjecting it to future statutory changes to the Condominium Act. See Angora Enters., Inc. v. Condo. Ass’n of Lakeside Vill., 796 F.2d 384, 386 (11th Cir. 1986) (noting that express agreement by parties in the declaration of condominium regarding application of future statutes to the association may determine whether parties have a “constitutional protection against future amendments to the Florida Condominium Act which, absent such an agreement, might arguably impair a party’s contract obligation”).   Cohn v. The Grand Condo Assn., SC10-430, (Fla.  3/31/2011).

 

In essence, the court is saying, as I’ve always opposed, that the people have the right to determine via a private contract whether the supreme law of the land, and of the state, applies to them.  And by constructive notice alone, without explicit consent, the courts hold that you surrendered your rights! This is wrong!  This “opt out” is ridiculous!  And it is an essential defect in the HOA/condo legal scheme – private parties can draft and file a document, especially a declaration, that exempts them from the application of the Constitution and laws protecting the people. So, why bother to have a constitution anyway?

 

Another advance for The New America of HOA-Lands. 

HOAs in America: the illusion of democracy in a dysfunctional republic

In order to understand the public policy toward homeowner associations with its manufactured appearance of bona fide homeowner consent, we need to examine the political climate and value system within our society.

See short video paralleling the decline of Rome. 

1. The empty value system – anything goes

The Declaration of Independence provided the fundamental basis for the unalienable rights that no government may take away from the people. Unfortunately, contemporary political and judicial leadership has failed to retain and uphold our unalienable rights in a replacement value system of ethics and morality.

2.  The decline in the caliber of elected officials and the rise of political party ideology

 The political system has evolved to a point where the vast majority of elected officials in each party feel comfortable only in advancing ideas acceptable to their core supporters. The political system now rewards ideology over pragmatism. . . . What’s unusual now is that the political system is more polarized than the country. Rather than reducing the level of conflict the ideology increases it.

3.  Legitimate government and the illusion of justice

And speaking of justice, the necessary ingredient for the claim to the legitimacy of government and to be obeyed in conscience, Allen offers Machiavelli’s advice, “Because the [right] to rule is rather the appearance of justice rather than justice itself, the appearance of injustice defeats every [right] to rule.”

4.  The rise of authoritarian private HOA governments

“Therefore this Restatement is enabling toward private governance. The question of whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law [meaning these servitudes], not constitutional law.” And, “What has been deliberately and carefully made ‘socially acceptable’ was, not too long ago, thought to be irresponsible — both financially and morally.”

5. The transformation of society and the acceptance of the New America of HOA-Lands.

 There are parallels between the acceptance and establishment of the HOA as an institution, and the influence and acceptance of Nazi doctrine in Germany before and during WW II. Both offered benefits and serious drawbacks, but only the pluses were seen and not the negatives. The rationale of the defenders of Nazism follow a similar pattern to that of the defenders of the HOA authoritarian, private government.

Mayer wrote 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.”

 

Read the complete article HOAs in America.

AZ Supreme Court to decide whether or not to proceed on Gelb and HOA adjudication

The Arizona Supreme Court will decide on April 19th whether or not  it will hear the appeal on the unconstitutionality of the adjudication of HOA disputes by an administrative agency.

For more information, see

Advocate submits amicus brief in AZ supreme court appeal of HOA due process

AZ bill, SB 1148, seeks to restore OAH adjudication of HOA disputes

Violating HOA due process would be oppression

“That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.” (Thomas Jefferson, 1801).

 

The Arizona bill, SB 1148 passed out of committee on March 1st, to restore the Office of Administrative Hearings adjudication of HOA disputes appears to be stalled, once again as in 2006, by the House Rules Committee.  Once more it is not on the House Rules agenda.  Failure to address the objections of the appellate court opinion in Gelb will heighten the likelihood that the Arizona Supreme Court will now have to decide the issue, and other matters raised in my amicus curiae brief. See Gelb v. DFBLS, CV 10-0371-PR.

 

The supreme court has yet to decide to hear this important case, waiting, as expected, to see if the Legislature would pass SB 1148 to render the constitutionality issue moot – no longer a controversy.  If not handled by the Legislature, then the Court cannot avoid addressing the following plea in my brief:

 

It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE for due process protections and the equal application of the laws. Even the lower courts are suspect. With all due respect, it remains to this Court to stand behind the promises and covenants between our system of government and the people as set forth in the U.S. and state Constitutions.

  

In deciding the constitutionality issue, the Court will need to address the real issue at hand, the separation of powers issue, where the Legislature remained silent and did not file a defense of their HOA due process statute. However,  the Legislature felt compelled to intervene in the controversial DOJ challenge to the immigration law statute, SB 1070.  Is this selective support for certain laws and parts of the Constitution over others? 

Senate President Pearce, author of SB 1070, said, “I want to make sure everyone knows, we, in the Senate, will govern from the bottom up, not from the top down” and I believe in the rule of law, I’ve always believed in the rule of law, We’are a nation of laws.”  Yet it appears that top-down, special interest “push” pressures still prevail with respect to HOAs (See prior commentaries with respect to HB 2441).

It is a well established doctrine that the legitimacy of a democratic government  rests on fair and just laws.

“That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.” (Thomas Jefferson, 1801).

 It would seem that the best course of action is to quickly pass SB 1148