Tag: privileges & immunities

Restructuring the HOA model

This Commentary is a position paper on the need to restructure the HOA model of government.  It is not light reading and requires serious consideration and understanding  of the underlying issues.

Background

I have stepped outside the box to offer the boards of directors (BOD) a fresh view of the nature and legalities of the HOA legal scheme. StarMan Group HOA Management Consulting believes that the HOA legal model of government must be restructured to

establish the climate and culture of the HOA enabling the restoration of the lost constitutional principles of democratic government — individual rights, justice and fair play — for its members within the confines of a private contractual government,

In my activist 20 years of HOA reforms, irrational fears have been inculcated in the general public and are the primary elements for the failure to resolve 54 years of endemic HOA issues: fear of loss of home, fear of financial and emotional stress, fear of legal actions and lawsuits, fear of social isolation, and fear of property devaluation. These have been advanced by pro-HOA forces.

The current embodiment of a utopian society (HOAs) was formulated in 1964 (The Home Association Handbook) and CAI was created in 1973 to address the growing dissatisfaction with HOAs. In 1993 it dropped being a tax-exempt educational nonprofit to become a business trade group in order to more effectively lobby state legislatures to protect the status quo of the HOA model of governance.

The HOA model of local government is a fourth type of local government in addition to the public domains of commission, council-manager and council-mayor forms. I ask: Is there a legitimate, bona fide reason and justification for the HOA to function outside public government?   No, there is none!

BOD Reorientation to review the HOA mission

The restructuring of HOAs starts with the education and reorientation of the BOD to better achieve its primary, broad purpose which is to provide quality services to its members. The only statements or covenants relating to the intent or purpose of the HOA focus on the interests of and benefits to the members, and neither to investments nor to social welfare services. The BOD must face the question as to how the best interests of the members can be accomplished by a rejection of the US and state constitutions.

“Maintaining property values” cannot be taken as an investment in your home. The CAI model focuses on punishment and enforcement of violators of the governing documents or those who fail to timely pay their assessments. The governing documents (CC&RS and bylaws) contain restrictions and limitations and any rights or privileges that the members possess under the CC&Rs are laughable when compared to the Bill of Rights or state Declaration of Rights.

I firmly believe that the BOD must undertake a serious, in-depth review of the original intent of HOAs and where it is today and where it’s going. For example, surely an HOA is not a social welfare organization but a private membership nonprofit regardless of any misguided ruling by the IRS. This review must be conducted in an open and unbiased manner free from the years of CAI indoctrination by the CAI School of HOA Governance (my appellation), to which far too many BODs have long been a willing and obedient adherent. Being under the spell of the CAI doctrine, the BOD has lost its freedom of mind, has neglected principles of local government, and functions outside constitutional application.

BODs, in general, resort to CAI not for legal advice on how to run the HOA government but as a crutch to allow them to dodge their obligations to govern the people — their residents — living in the territorial subdivision of the planned community or condo. Why would CAI speak of or admit to the Bill of Rights or to state Declaration of Rights and lose control of the industry? Why haven’t they?

In addressing the management of nonprofit organizations, eminent management consultant Peter F. Drucker wrote: “The first job of the leader is to think through and define the mission of the institution.”  He makes the point that the worthiness of a mission statement lies not in its beauty but in leading to “right action.” It has to be operational, otherwise it’s just good intentions. “One of the most common mistakes is to make the statement [a series] of good intentions.”

CC&Rs are a devise to circumvent the Constitution

The recourse to the real estate laws of equitable servitudes giving legitimacy to the declaration of covenants, conditions and restriction has gone afoul with respect to HOA governments. “The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.” The governing documents reflect the undue influence of the CAI School of HOA Governance, and the failure to accept the reality that the HOA is a de facto form of local government that functions outside the US Constitution.

The Homes Association Handbook model set the tone, the character, and the culture of the HOA “community” from which the boilerplate declarations flowed with the help of CAI lawyers. There are no public disclosures of the loss of individual property rights, or the legislative immunity granted to BODs, or the unjust elections procedures, or the absence of constitutional due process protections, or court rulings of implied waivers and surrenders of individual rights, just to mention a few.

It goes without saying that private HOA governments must be restructured to return to the Union and restore member rights, freedom, privileges and immunities. It can be done and must be done. Plessy v. Ferguson (163 US 537 (1896)) was overturned by the US Supreme Court fifty-eight years later in 1954 by Brown v. Bd of Educ. (347 U.S. 483 (1954)). So can years of unjust HOA Acts and statutes be overturned in the light of today’s knowledge and conditions.

And so, it starts with the review and restructuring of the purpose and intents of the HOA to establish a climate and culture of the HOA conforming to the principles of democratic government as required of all local government by the Constitution.

consulting SIG image1

Further reading:

 

As an HOA member, “Are you a citizen of the United States of America?”

“Are you a citizen of the United States of America?”, asked Trump in his news speech today[i].  And he added, “There was a time when you could proudly declare  ‘I am a citizen of the United States’.”

In 2012 I raised the issue of HOA members being US and state citizens in my proposed Arizona bill[ii].

Therefore, the members of the association, having not waived or surrendered their rights, freedoms, privileges and immunities as citizens of the United States under Section 1 of the Fourteenth Amendment, and as citizens of the state within which they reside.

As part of the bill I declared,

The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.

Very disappointedly, there was no outcry, there was no demand to assert citizenship by HOA members or homeowner rights advocates.  That says a lot, doesn’t it?  I am not sure as to whether the HOA legal scheme and members shunting the Constitution contributed to the Washington dysfunction, or was it just a top-down, a trickle-down public sentiment pervading HOA members?

 

Discover the truth about HOAs!  Read The HOA-Land Nation Within America exposé on sale at Barnes & Noble (BN.com);  Amazon.com, KDP Unlimited & Lending; Google HOA-Land Nation. Join the many others who have received a copy of the eBook or paperback and open a broad discussion.

Notes

[i] See Video of speech, FOX10. The only site I could find that recorded Trump’s opening words. Not even on the official WH website.

[ii] See “Declaration of US and State citizenship” in HOA member Declaration of US and State citizenship. The bill was not sponsored or backed by advocates.

 

HOA-Land Nation “Did you know?” Part 2

HOA-Land Nation “Did you know?”

Release No. 2 —  July 4, 2019

As an HOA member, did you know that:

 ·         Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties or punishments for violations of state laws or the governing documents?  Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.

 ·         The much touted HOAs are democratic because members can vote is utterly without merit?  Fair elections protections, as compared with those in the public arena, do not exist under a corporation law.  Members do not have equal access to HOA newsletters, website, member lists, and use of common amenity meetings rooms, among other denials.  

 ·         To bring about equal protection of your rights, the HOA attorney sides with the BOD, his client and not you, the membership.  And as a CAI member, lobbies the legislature to maintain conditions as they are – authoritarian HOA government.

 ·         You still retain your rights, privileges and immunities as a citizen but are denied these rights under the private HOA legal scheme, functioning outside constitutional protections.

 Discover the truth about HOAs!  The truth shall set you free!  Read The HOA-Land Nation Within America exposé on sale at Amazon.com. 


The HOA Principality

A few years ago I made the comparison that HOAs were a modern version of the independent city-states of ancient Greece and medieval times. I was wrong. I was wrong because these city-states had no higher-level government, no king or emperor, to whom they were answerable. That’s why they were independent city-states.

The more accurate comparison would be to principalities that exist in small numbers today in Europe; such as, the Principality of Monaco. They exist within the boundaries of a larger political body, the country or nation, and are essentially self-governing with their own laws. They are governed by an almost absolute ruler, the Prince. They are protected, a “protectorate” you might say, by their surrounding nations and exist by this “higher” government choosing to honor the principality in accordance with its laws.

Today, in the United States of America, the federal and state political bodies have issued “charters” to private individuals, granting them the status equivalent to a principality, much as the kings and emperors of the 16th – 18th centuries handed out charters to loyal followers. These modern charters are known as homeowners associations and are issued without requiring a republican form of government or subjecting all of its citizen-members to the privileges and immunities that apply to all citizens of the US.

If you follow the arguments of the longtime promoter of HOAs, the Community Associations Institute, CAI, you will find that its justification for this state of affairs and private government does not address the US or state constitutions, but the lesser laws of the land, the real estate common laws of servitudes. These opposing views is quite apparent when you follow the arguments by the Frank Askin of the Rutgers Constitutional Law Clinic and CAI in the Twin Rivers New Jersey case on HOA constitutionality questions.

I am not arguing against the right for communities to set their own special ordinances and special taxes for community amenities, but for the guarantees of life, liberty and the pursuit of happiness to all people. If we are to remain true to that contract between the federal and state governments, embodied in their respective constitutions, then the era of the HOA principality must come to a swift and decisive end.

See CAI’s Amicus Brief