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HOA Common Sense, No.3: The Path to HOA Enlightenment

The Path to HOA Enlightenment, No. 3

I ended HOA Common Sense No. 2 with a call for the people, following their ethical and moral conscience, to lose their false views of reality in order to successfully resolve long standing, endemic HOA problems.  The authoritarian, private HOA government was not created to and has no legal obligation to protect and maintain individual rights and freedoms as does public government under our Constitution with its Bill of Rights.

This difficult task for substantial HOA legislative reforms can be accomplished by choosing the path that requires the people to 1) step outside the box created by the pro-HOA special interests and to reject dogmatic attitudes that refuse to consider opposing and dissenting arguments, and 2) that we confront and challenge the pro-HOA supporters demanding that they defend their half-truth, misleading, and false mantras with documentation and legal authority.

This path to a successful resolution of endemic HOA problems is rational and sensible.  It is up to the people to choose the America of tomorrow, that of the Founding Fathers or of the New America of HOA-Land, for their children and grandchildren. 

It’s just common sense for Americans to reject the authoritarian HOA private government, and to support our democratic system of government of 226 years.

HOA Common Sense, No. 2: The new Enlightenment Age

The new Enlightenment Age, No. 2

I ended HOA Common Sense No. 1 with a call for the people to strip away their dogmatic views about HOAs and adopt a fresh, common sense approach to understanding the nature and functioning of their community – a local political and social community.  It must be asked, Why is an imposed contractual government without the protections of the Constitution better than a local public entity subject to the Constitution?  

Consider that the alleged contract signed at the time of purchase can be modified without the buyer’s consent, and without compensation, making the “contract” a meaningless piece of paper.  A condition that is not possible under the Constitution, which prohibits ex post facto laws – laws that change the legality of past conditions.   Your agreed to CC&Rs can be so amended to alter the terms and conditions of your agreement.

What sense does that make?  Why would anyone with any common sense accept this condition? And there are many other questions that cast legitimate concerns of a rational decision by buyers to accept the CC&Rs adhesion contract.

The policy makers, the public and the homeowners must understand that they have been living in a “cave” created by the promotion and mass merchandising[i] of the HOA legal scheme, eagerly accepted in exchange for empty promises of maintaining property values.[ii]  As prisoners within the cave, HOA members can only see the shadows of reality cast by the false light of the special interest propaganda.[iii]  Those who have escaped the cave and who have gone into “the light” of reality become enlightened. 

The difficulty before our society is for the Enlightened to be able and willing to return to the cave, the HOA, and inform the members about the truth of the HOA legal scheme. But, the members reject these arguments as false, because they have not seen the reality.  This task of enlightening society in general is a major task. However, “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.[iv]

A people, a society, that bases its actions on a false reality will never resolve problems.  The underlying assumption is a firm belief that the people want to do what is right and just.  The Dalai Lama wrote, “Where ethical restraint is lacking, there can be no hope of overcoming problems.”[v]  Where ethical restraint has been replaced with material concerns and especially concerns for money, and with “Me first”, “Greed is good”, and “I want it now!” it is understandable why our government of the people is so dysfunctional.[vi]  And that includes HOA private governments.

[i] See “Part 1, The Mass Merchandising of HOAs,” The Foundations of Homeowners Associations and the New America, George K. Staropoli, StarMan Publishing (eBook) 2009.

[ii] Here I make the argument that the people, in general, have been conned.  Readers should refresh themselves with Hans Christian Andersen’s The Emperor’s New Clothes. 

[iii] See Plato’s allegory of the cave in Book VII, The Republic.  For a summary and a simplification of the allegory, see the YouTube video at http://youtu.be/sAu-CNSh9F0.

[v] The Dalai Lama, Ethics for the New Millennium, Riverhead Books, 1999.

[vi] Jim Wallis, Rediscovering Values: On Wall Street, Main Street, and Your Street, p. 27, Howard Books, 2010; Ron Brownstein, “America Divided”, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America, Penguin Books, 2007.

HOA Common Sense, No. 1: The New America of HOA-Land

This Commentary is the first in a series on the topic of HOA Common Sense.  The political and social changes in our society brought about by the adoption and acceptance of the HOA legal scheme has created a new America of authoritarian, private governments known as HOAs. They function as independent principalities.  The values, beliefs, principles, ethics, and morality of today’s America would shock the Founding Fathers.

In 2008 I wrote, “Historians have referred to the American Revolution as the ‘American Experiment’” and

The birth of the Second American Experiment went largely unnoticed. Under an unspoken alliance, the public was not informed of this experiment in the privatization of government. . . . This second experiment was not a strengthening of democracy, but one that promoted and established – with the support and cooperation of the state legislatures – private, contractual, authoritarian, government regimes. (Homeowners Associations: the Second American Experiment.)

Earlier, in the 2007 paper,  The Fall of the American Experiment:* Homeowner preference for HOA regimes, it was argued that,

As with the Articles of Confederation, the HOA Declaration must be scraped and replaced with a new “constitution,” a municipal charter that allows for local individual ordinances and access to community amenities based on a community taxing district model, but subject to the same obligations, restrictions and laws as are our municipal entities. This approach would indeed retain the subdivision planned community real estate “package”, and would be a much-improved model of local autonomy, of local home-rule, still within the framework of the Constitution and laws of the land.

The people of America must escape the dogmas of today that have brought about a dysfunctional federal government and dysfunctional state legislatures that have renounced the Constitution. State governments have permitted the HOA principalities to function and govern the people independent of the Constitution.  What purpose, then, does our Constitution serve?

These HOA governments are also dysfunctional and reflect our society. The people must replace these irrational dogmas with a sensible analysis of the current social and politic climate of America.  A common sense approach by the people is needed to take a fresh look and what’s wrong with America and what’s wrong with the HOA legal scheme – for their children and their grandchildren.

The influence of HOA special interests on an AZ legislator — SB 1454

First-termer idealism and the awakening

Michelle Ugenti arrived at the Arizona Legislature in 2011 riding in as a Clean Election Candidate, meaning she took no special interest money.  On her web page she quotes from the Arizona Constitution, “All political power is inherent in the people, and governments . . . are established to protect and maintain individual rights.”

It appears from her comments about her first term that she ran right into the reality of how bills become laws:

The following two years [after being elected] have taught me what happens when ideas and principles meet head-on not just with competing beliefs but also with individual self-interest, whipped into a frenzy by forces armed with money and power. 

She’s talking about the special interest money and the influence it has on legislators.  Still, with a positive outlook facing her re-election in 2012 Ugenti writes on her web page, “I hope that my constituents find me faithful to . . .  preserving our rights and freedoms.”

But, something seems to have happened to Ugenti upon her re-election in 2012.  She seems to have found and adopted the way and the means to make a name and to advance herself in politics.  She talks of hard politics, of when to compromise and when to negotiate, and of being successful and effective.

It is precisely this delicate balance of knowing what to give and what to fight for that makes an effective legislator. I believe I am successful because I have the integrity and courage to examine each issue and stand wherever my conscience and conviction demand I stand.

The lure of the special interests

In 2013 we saw Ugenti’s tenacity to fight and stand by her conscience in regard to her HB 2371 HOA bill and incorporating this failed bill into SB 1454. It ran afoul of the Arizona Constitution and House Rules. She showed her conviction before the Senate GE committee hearing on HB 2371 and clearly demonstrated her newly found path to success as a legislator – by advancing the agenda of the HOA “stakeholders,” the special interests who make money from servicing HOAs.  And CAI is one leading “stakeholder.” (Stakeholders are not homeowners who are excluded from such meetings. And the legislators well know it.)

At that hearing Ugenti stated that each year there was “a plethora of personal HOA legislation” and tried “to spare the [committee] members the constant agony of many personal pieces of HOA legislation,” as contrasted to the industry legislation. She also said that she “felt very responsible to the stakeholders.”   That was in March. In July a lawsuit, Staropoli v. State of Arizona,  was filed against the State for an unconstitutional SB 1454. The Attorney General’s office and court agreed, removing Ugenti’s HOA provisions.

Yet, the Arizona Legislature sees no wrong in her conduct leading to the filing an amendment from the floor and refused to discipline her. Ugenti’s integrity and conviction is examined in SB 1454: Machiavelli at work in the AZ legislature – Part 1 and AZ House ‘circles the wagons’ in defense of pro-HOA legislator.

CAI stakeholder support of Ugenti

In October 2013, stakeholder and national HOA lobbyist CAI praised Ugenti for her efforts to advance HOA interests, as CAI sees them.  In an article in the Fall 2013 Community Resource magazine, AZ lobbyist DeMenna wrote, echoing Ugenti’s view that only  stakeholder legislation has any value:

“Under the leadership of Representative Michelle Ugenti . . . a working group was established to address HOA-related issues advanced by legitimate stakeholders. . . . and Representative Ugenti personally led the effort to ensure that only sensible and functional proposals were considered. CAl played a critical role in this process, although some compromises were required. . . . In the end . . . Representative Michelle Ugenti, is to be commended for her leadership in this area.

And in the AZ CAI chapter’s email, Notice to CAI Members **Very Important-Please read!**, Oct. 18, 2013, the AZ chapter wrote, again echoing Ugenti’s views,

Representative Ugenti . . . is instrumental in the development of HOA policymaking. Representative Ugenti’s stakeholder meetings, formed in effort to tackle the growing number of HOA bills introduced every session, are critical in defeating shortsighted proposals.

The email went on to announce a fundraiser for Ugenti:

Fundraising Reception in support of REPRESENTATIVE MICHELLE UGENTI.  Please make checks payable to: MichelleUgenit.com [sic].  If you are unable to attend, you can mail your contribution to CAI’s Arizona Lobbying Team: DeMenna & Associates. . . . Paid for by: www.MichelleUgenti.com.

The decline and fall of a legislator

What happened to Rep. Michelle Ugenti since her first term in 2011?  It appears she has serious issues of integrity and the demands of her conscience to fight for her beliefs. She has fallen away from those ideals and values of “preserving our rights and freedoms”; and that governments “are established to protect and maintain individual rights.” The  authoritarian, private HOA government has no legal obligations “to protect and maintain individual rights” as does our Constitution with its Bill of Rights.

Apparently, she has succumbed to “individual self-interest, whipped into a frenzy by forces armed with money and power.” Her conscience and convictions have led her to advancing special interest agendas and to crossing the line and violating the Arizona Constitution.  

Obstacles to effective HOA reform legislation

Jim Lane, a NC HOA reform activist and website owner of Alliance of Homeowners Associations and Owners, asked the following HOA reform questions on the LinkedIn HOA group:

What are the three biggest “issues” (be specific)? What is standing in the way of resolving them? What should Owners be doing? How?

A good understanding of the issues surrounding HOA reform legislation requires expanded answers to these questions.  There are too many dogmatic mantras being espoused that are not supported by any convincing evidence, like “move out, “no contract interference,” “you agreed to be bound,” etc.  I can only provide an outline of my answers to these questions.  A deeper understanding can come from a study and analysis of my Commentaries over the years since 2004. (A keyword search is available).

First question: Essentially, I have identified 5 fundamental areas that require substantive reform legislation; legislation, if enacted would produce a trickle-down effect on many of the more serious issues confronting homeowner rights, freedoms, privileges and immunities allegedly waived or surrendered by homeowners.

They are:

  1. HOA foreclosure (cruel and unusual punishment; suspect category)
  2. Lack of due process protections (eliminate HOA banana republic justice)
  3. No clean elections laws for HOAs (eliminate HOA banana republic elections)
  4. No penalties against HOA board violations (equal application of the laws; detriment serving as a check and balance on HOA board violations)
  5. Wrongful application of a valid consent to agree (misapplication of the domination of servitudes law over constitutional and contract laws to make the HOA legal scheme work)

A failure to attain these broad, fundamental reforms will leave homeowner advocates at the continued mercy and whims of their legislatures, who are all pro-HOA.

Second question:  The answer to this question will disturb many, many homeowners and HOA reform advocates.  First, the 40 year-old national lobbying organization, Community Associations Institute (CAI) has dominated state legislatures. CAI has advocated its personal agenda under the guise of making for a better America, and a fear mongering not to support reform advocates who will kill your HOA and cause a loss in your property values.[1]  And then there was the inappropriate mass merchandising of the defective HOA concept to generate profits for the HOA promoters.

Second, like the German people who allowed the Nazi party to gain control over the most cultural and scientific country at that time,[2] homeowners jumped at the carrots being offered by the mass merchandisers and ignored the stick of a decline in democratic institutions and constitutional protections.  Many believed that they were good people supporting what was good for the community and the state, just like the German people eagerly believed.

The denial of the reality of the HOA legal scheme is a common behavior when a person’s self- image is being destroyed or radically altered.  When one’s self-image serves as the basis of how that person sees himself to be, many owners accepting the reality of the HOA concept would be destroyed. Their reactions would be an outright denial to the point of irrationality.  To say that their cherished HOA is a wrongful legal concept that is not for the betterment of society is too say that they are wrongful people not working for the betterment of society.  And they will not accept that. They will not accept the fact that they, like the emperor in The Emperor’s New Clothes,[3] were conned so they will continue to ignore reality and live in denial.

We see this reaction when pro-HOA supporters are pushed to defend their positions and they cannot, so they react with, essentially, an I don’t care attitude.

Third and Fourth questions:  The homeowners must, themselves, face this reality and become enlightened.  They must unite and stop the continued influence of CAI on their legislature.[4]  The homeowners must become proactive to enlighten and change public opinion that HOAs are not the next best thing to Mom’s apple pie.

 

References

 

[1] There are existing laws in every state that would enable HOA to maintain their unique relevance to the subdivision in terms of private rules and amenities, etc., but would return HOA to our American system of government.  However, that would mean CAI would lose much of its dominance and influence over HOAs. See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.

[3] The Emperor’s New Clothes, Mindfully.org (http://www.mindfully.org/Reform/Emperors-New-Clothes.htm), June 7, 2012.