It should not come as a surprise to anyone that state legislators have allowed the HOA legal scheme, which they have played a strong hand in supporting, to deny the equal application of the laws for all, and the loss of constitutional protections.
Free speech, flying the flag, due process, clean elections, etc. have been denied by HOA regimes. Even noted CAI member attorney, Adrian Adams, speaking about HOAs in the Davis-Stirling online Newsletter article, Animal Sacrifice: “Just as private organizations can restrict free speech, they could conceivably restrict religious practices that negatively impact other members.
The denial is basis on the specious and false argument of a “consent to agree.” A consent that falls dismally short of meeting Supreme Court judicial scrutiny for constitutionality. All the HOA has to show is an HOA interest for the benefit of the entire community and the courts will find no problem, just as if the HOA were a government entity that has some legitimate interest in the issue.
Furthermore, legislators accept the argument that any validly passed CC&Rs amendment binds everyone including any dissenters, regardless of its relevance, bearing, or reasonable expectancy of the restrictions being imposed on owners. It’s the “general government interest” approach. It appears that public government attributes are ascribed to the contractual HOA, with the contractual terms are being ignored. All reform legislation is an attempt to restore those rights wrongfully denied the homeowners, on a case by case, HOA by HOA, state by state basis.
HOAs are not de jure governments — not state entities. But, they are de facto governments operating under state legislature protections, but in contrast to all other government entities, without constitutional protections. HOAs are unrecognized governments as is Cuba, but functioning nevertheless every day.
When will legislatures learn? When will they undertake an independent study of HOAs with a truly independent “think tank”? Like the Arizona State’s Morrison Institute for Public Policy.[i] When? Perhaps never, since they don’t seem to really want to know, and perhaps because they know what the findings will show.
[i] “Morrison Institute provides public policy research for government agencies, private associations, nonprofit organizations, and communities. In conducting research, analysts draw upon a variety of disciplines and methods: collecting original data through public opinion surveys, interviews, and consultation with experts; and analyzing existing information through review of published research reports, current legislation, and statistical data.” (See http://morrisoninstitute.asu.edu/about/about-the-morrison-institute).
HOA Constitutional Government 