Tag: McKenzie

The FEDS must restore law and order in secessionist HOA governments

The following is my comment to a post by Evan McKenzie on his Privatopia Papers blog, Las Vegas HOA corruption probe continues.  In his post, Prof. McKenzie raised the question of federal congressional hearings on HOAs.

—————————————————————————————————

I think it is not only time for federal intervention, but well past the time.  There are a number of reasons.  First, as I wrote on my blog, people living in HOAs are still citizens of the US and of their respective states, not having waived or surrendered their citizenship. State legislatures have ignored not only the US Constitution and Bill of Rights, but their own Declaration of Rights as found in their state constitutions.  They have abdicated their responsibilities to their citizens.

Second, each state has its own set of laws governing HOA private governments creating a confusing and conflicting state of affairs as to what is law and what is not law. It depends on the state you are living in.  Only the federal government — and not a national lobbying organization nor a uniform laws commission that have been devoid of any homeowner representation —  can legitimately set a single, comprehensive set of laws governing the rights, freedoms, privileges and immunities of citizens. 

Third, a decision to settle the issue of  HOAs as state actors or as de facto government entities must be made, and that can only come from a decision by the US Supreme Court upon a complaint filed by the DOJ.  Can HOAs exist as a government entity?  Why not?  If not, then what? 

Understand, and do not be confused by the blurring of definitions, that the homeowners association is the governing body over a subdivision subject to a Declaration of Covenants, Conditions and Restrictions (CC&Rs).  The planned community development is the subdivision’s real estate “package” setting the amenities, housing, landscaping, common elements, and infrastructure that also mandates an HOA form of private governance. 

Fourth, it is an issue affecting some 20% of the US population, a percentage greater than the percentage either for the Hispanic or the Black minorities.

It’s time to bring unity to this country and end subdivision governance by HOAs that create independent principalities.  The planned community development can remain under a democratic form of government subject to the Constitution.  And that must come from Washington.  It can start with hearings to air those constitutional issues that have been avoided by every state and court for far too many years.

Evan McKenzie on HOA consent, disclosure and realtors

“The typical homeowner has no idea what he is getting into — or what kind of HOA leadership he will be dealing with — when he signs a binding contract to move into an HOA-governed subdivision.”

So spoke internationally recognized and outspoken advocate for HOA reforms, Professor Evan McKenzie (author of Privatopia: Homeowners Associations and the Rise of Residential Private Government (1994) and Beyond Privatopia (2012)) in an interview for the Evansville Courier and Press (“Woman says HOA demanded microchip in her dog”).  And with respect to consent and the inadequacy of state mandated disclosure documents, McKenzie calls them “hopelessly inadequate.”  He is quoted as saying, “If (realtors) cared about this, which they don’t, they would be establishing policies.”

I’ve written on the topic of why people choose to live under HOA regimes and who remain silent. As a sample, there is the  oppressive structure of the HOA (Why do people harm others in HOAs?), the “unspoken alliance of no negatives about HOAs” (Good night and very good luck – the unspoken media HOA alliance, CA court upholds HOA suit against real estate agents), and the failure of state legislatures to uphold constitutional rights (Proposed “consent to be governed” statute, the “Truth in HOAs” bill).  One can conclude that the HOA institution is basically corrupt (as defined: impairment of integrity, virtue, or moral principle; perversion of integrity).

I have repeatedly argued for the education — the enlightenment — of the public, the media and state legislators as to the truth of the matter, understanding that the unspoken alliance is still at work.  Where there is a lack of understanding, actual or pretended, then educate as to the truth. Help others to understand.  And this enlightenment requires that advocates challenge, confront and expose the non-truths being continuously aired by pro-HOA special interests (Path to Victory at the Legislature).

Thank you Evan for your effort to enlighten others as to the reality of the HOA concept and its defects.

 

Read this highly informative article at CourierPress.com.

Court decisions: HOA Enlightenment Movement vs. the Dark Ages

In this “groundbreaking decision”, as described by Evan McKenzie in  his Privatopia Blog, the Illinois appellate court made a ruling consistent with the HOA Enlightenment Movement.  Neglect by a condo asociation to make repairs affecting a unit is a defense against continued payment of assessment.  This is a major step toward homeowner justice that removes the “pay no matter what, or lose your home” doctrine of the authoritarian HOA governments.

The case, Spanish Court Two Condominium Association v. Lisa Carlson (2012 IL App (2d) 110473), involved a demand for assessments owed plus a possession — forcible entry — of the unit that was alleged to have suffered damages due to the condo association’s neglect.  (Understand that the condo sued under the Forcible Entry Act to repossess the unit). The court held the condo in the same position as a landlord under the landlord-tenant laws, which allow a tenant to withhold rent as a defense against forcible entry.

 We hold, by analogy to the case law on actions brought under the Forcible Entry Act by landlords for possession of leased property due to unpaid rent, that the unit owner may claim neglect as a defense to the board’s suit under the Act.

 And of very important significance for case law precedent is the holding on the mutual obligations of the CC&Rs contract, my emphasis, (p. 13,14),

 “Plaintiff suggests that a board’s right to collect assessments is absolute and that a claim for nonpayment of assessments is not subject to any affirmative defense.”

[The court replied,] “nowhere does the . . .  Condominium Act suggest that the right is absolute.”  The Condominium Act appears to set the rights of unit owners on par with the rights of the board of managers. Moreover, the rights arise from mutually exchanged promises—on the one hand to pay assessments, on the other hand to maintain the common elements—and so the Declaration and the Bylaws are best seen as contracts.

[T]he condominium instrument indicates (as presumably most do) that the unit owner’s promise to pay assessments is in exchange for the board of managers’ promise to use those assessments for the repair and maintenance of the condominium property, the unit owner may claim, as a justification for nonpayment of assessments, that the board of managers breached its duty of repair and maintenance.

 Contrast this decision with the recent California Supreme Court opinion, reflecting a culture still in the Dark Ages sorely in the  need of enlightenment, Pinnacle Museum Tower  v. Pinnacle Market Development( No. S186149, Aug. 16, 2012 ).   Here the court validated the binding arbitration clause with (my emphasis),

 [T]the Davis-Stirling Act ensures that the covenants, conditions, and restrictions of a recorded declaration — which manifest the intent and expectations of the developer and those who take title to property in a community interest development — will be honored and enforced unless proven unreasonable.

 Under its Discussion, B. Contractual Nature of Terms in a Recorded Declaration, the court gives an instructive presentation on the preferential treatment of the declarant/developer, consent to obey, waiver of rights, “for the common good,” and the open-ended amendment process.  Section C explains what constitute an unconscionable contract clause, rejected in this instance.  Very informative of the Dark Ages culture.

 

The HOA Enlightenment Movement is rolling on, and will gather momentum as the truth, justice, and the American way shall once again prevail.

Local government copies HOA government

In the June 23, 2012 NY Times article by David Segal, “A Georgia Town Takes the People’s Business Private,”  Segal asks and answers, “What is local government for? For years, one answer, at least implicitly, was ‘to provide steady jobs with good wages.’”   It reduces public government to just providing for the maintenance of the community, following the lead of the other form of local government, the private HOA regime whose purpose is to just “maintain property values.”

While the answer is in keeping with the theme of the article regarding the privatization of government services, it ignores the unique functions that distinguish a public government entity from a business, or more importantly, a membership nonprofit business.  Just what are those unique functions?

Are governments just a business?  Are businesses just a government?  Are HOAs just a business?  Are HOAs just a local government?  In his April 2, 2008 CAI Ungated blog entry, CEO Skiba writes: “Community associations are not governments . . . .  Yet they are clearly democratic in their operations.”  Skiba continues further with, “The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable. . . .”  He seems to be pleading that whatever aspect of democracy there is in HOAs, we must make serious improvements. Note his use of “some other form government” is an admission that HOAs are political governments.

I find it hard to accept the above assertion by Skiba that CAI supports making HOAs more democratic. Rather, CAI supports the top-down imposition of UCIOA laws that blatantly contradict its other pronouncements that HOAs are the town hall ideal of democratic governance.  And it contradicts CAI’s documented positions before the courts and state legislatures opposing constitutional protections for homeowners in HOAs.

Political scientists (among them Wayne Hyatt, Evan McKenzie, and Steven Siegel) have accepted a compromise position that HOAs are a sui generis entity, a unique combination of business and public government functions that require a new set of laws to establish a just and fair governance of people living in an HOA controlled community.  Yet, since Siegel’s seminal paper of 1998 (Wm & Mary Bill of Rights Jnl), the laws remain pro-HOA without HOA accountability to the state, and without the equal protection of laws that apply to all other citizens except those living under HOA regimes.

A detailed discussion of the de facto status of HOAs as state actor governments can be found in The Foundations of Homeowners Associations and the New America, “Part III, American Political Governments.”

 

Who is the only true HOA stakeholder?

I’m tired of hearing the term, stakeholder, over and over again by CAI, and used by others including legislators. I don’t think that they know the real meaning of “stakeholder” as bastardized by CAI. Let me explain.

The term or concept of “stakeholder” is not found in the HOA “bible,” the Homes Association Handbook of 1964. I cannot find it either HOA texts, in the 1992 book by Prof. Jay Dilger, Neighborhood Politics, or in Prof. McKenzie’s 1994 book, Privatopia. However, McKenzie describes the beginnings of CAI in 1973 as an organization to solve the problems with HOAs. It was to consist of various “interest groups” that had an interest in making the HOA legal scheme work.

Even then, the real focus, as is today, was on the HOA directors and not on the homeowners per se – the five groups were: public officials (rapidly departed), professionals (attorneys), managers, developers and “homeowner associations directors (referred to by CAI as ‘homeowners’)”. Under “professional” there was reference to landscapers and accountants, etc., which makes these stakeholders also equal partners in your home, according to CAI. Gee, what would your spouse say to that? Talk about redefinitions and “newspeak.”

The term or concept of “stakeholder” is also not found in the 2000 CAI – ULI jointly funded testament to CAI, Community Associations, by Donald R. Stabile. But, in his discussion of history, Stabile speaks of The Homes Association Handbook (1963), “To establish the satisfaction all components of the housing industry expressed for [HOAs] . . . TB50 evaluated the perspectives of each [group].” It reflects the concern of various business interest groups – the stakeholders (this term is not used by Stabile), but not the homeowners, just the “association owners.” Stabile does point out that CAI was initially organized (1973) by these same groups of “interested” parties necessary to make the problems with HOAs go away, but then again, he mentions “homeowner leaders of associations,” but not homeowners.

 I believe this was the genesis of what later became the CAI argument that the stakeholders have an equal stake in the member’s private property home, for which the owner alone has monetary liability.

It should be obvious by now that the term “stakeholder” as used by CAI definitely excludes the homeowner, and has evolved from the long term focus on the “interest groups” with a stake in selling and making the HOA concept a success. It is obvious, too, from the false and misleading statements before Arizona legislative committees that CAI had met with all the stakeholders, but not one homeowner rights advocate was ever invited or attended these stakeholder meetings, just who CAI sees as “stakeholders.”