Tag: public government

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.”

 

CC&Rs and waivers of constitutional rights in HOA-Land

This June 13th extremely important NJ Supreme Court opinion in Mazdabrook deals with the fundamental constitutional question that the homeowner had waived his rights when he agreed to the CC&Rs  covenants, which are broadly stated, vague, or implied. I have repeatedly argued that homeowners do not!  This opinion will have national impact as other states will follow suit.

Mazdabrook involved  the right of a homeowner to place political signs on his  private property.  The NJ Supreme court said there was no waiver of free speech rights.

Moreover, Khan did not waive his constitutional right to free speech. To be valid, waivers must be knowing, intelligent, and voluntary, and a waiver of constitutional rights in any context must, at the very least, be clear. Khan was not asked to waive his free speech rights; he was asked — by different rules in three documents — to waive the right to post signs before getting Board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights. . . . . Instead, the exercise of those rights can be subject to reasonable time, place, and manner restrictions. Finally, covenants that unreasonably restrict speech may be declared unenforceable as a matter of public policy.  (P. 5).

In other words, that  waiver must meet specific requirements, including an explicit statement of a waiver rather than an broad interpretation or implied waiver as is the current status of CC&Rs.  However, understand that rights can be waived if these requirements are met.

Waiver is the “intentional relinquishment or abandonment of a known right or privilege.” Although rights may be waived, courts “indulge every reasonable presumption against waiver of fundamental constitutional rights.” To be valid, waivers must be knowing, intelligent, and voluntary.

The NJ Supreme Court seemed to have educated itself about the spread of CC&Rs with its boiler-plate wording that imply or are interpreted as a waiver, and takes a slap at comment h under § 3.1, Validity of Covenants (Restatement (Third) Property: Servitudes), that argued for the doctrine of equitable servitudes (covenants) to be held superior to the Constitution.

 The proliferation of residential communities with standard agreements that restrict free speech would violate the fundamental free speech values espoused in our Constitution — the “highest source of public policy” in New Jersey. (P.11).

Validity of CC&Rs to bind

Not addressed and unanswered in this opinion is the fundamental question, by extension of what constitutes a waiver, is the question of the validity of the CC&Rs. Is the doctrine of constructive notice sufficient for the CC&Rs to be held as a binding contract?   If the  CC&Rs are held as invalid, then the question of the waivers of rights becomes moot.

How can the simple notice to the county clerk bind anybody to anything, and be considered a waiver of any right or an agreement to be bound in general?  Especially when it is required that, “To be valid, waivers must be knowing, intelligent, and voluntary.”  There is not even a warning in bold, capitalized, large font stating, at purchase time, that the “Taking this deed alone binds you to the CC&Rs sight unseen, without having to read, sign or agree to it.”

Background information.  This case made references to the Twin Rivers free speech case of 2007, the controlling NJ Schmidt case (as did Twin Rivers), and was also based on violations of the NJ Constitution.  Once again, ACLU and The Rutgers Constitutional Law Clinic, Frank Askin Director, filed an amicus curiae brief.  NJ CAI filed an amicus in opposition.  Both were allowed to present oral arguments on the question of  waivers of constitutional rights under HOA CC&Rs.  It is legal, but not binding precedent outside of NJ.

See HOA member Declaration of US and State citizenship.

Exchange with Ward Luca on HOA legitimacy and legislative reforms

New comment on Ward Lucas & The HOA Hell Blog

See complete exchange at Homeowners Claim HOA President Abuses Power

pvtgov:

What homeowners don’t realize is that they are at the mercy of total strangers who are their neighbors in an HOA. In order to make the HOA concept work, and to make them appealable to the masses, HOA officers and boards were given a free pass. No checks and balances and no state imposed meaningful […]

Ward Lucas:

Nobody in the world crystallizes the problem better than you do, George. With Las Vegas totally collapsing, what plan would you submit to the Governor or Legislature there, and what plan would work with every state? And do you believe, as I do, that the entire national HOA structure is corrupt?

Would FDR call HOAs fascist?

In his message to Congress on “The Concentration of Economic Power” on April 29, 1938, President Roosevelt said,

The liberty of a democracy is not safe if the people tolerate the growth of private power to the point where it becomes stronger than the democratic state itself. That in its essence is fascism – ownership of government by an individual, by a group or any controlling private power. ”  President Franklin Delano Roosevelt.

It is quite clear that President Roosevelt could have been speaking about homeowner associations, HOAs, right here in America — those private governments created for the benefit of the developers who “toss” certain benefits to  local public governments, the realtors, and the buyers.

What has happened to America?  What has happened to those cherished values of demoncracy, of justice, and of liberty for all?   Today, some would have you believe that public government is to be run like any other private business. America has been  infiltrated and overthrown from within!

Years from now, when Europeans come here to ask, How could this happen in America,  they will hear the same answers as given by the average German after WW II.  Americans had gone to Germany after WW II to understand how could the German people allow the Nazis to come to power. They discovered that the people accepted the benefits brought by the fascists, and they gave lame excuses as to their acceptance of the oppressive Nazi rule. (See the paperback, They Thought They Were Free, Milton Mayer, 1955 and Can substantive HOA reform legislation happen?).

Our  “Constitution has been turned on its head“, as a leading public interest organization wrote.  And it continues every day with the spread of the HOA legal scheme.

HOA advocates must deal with reality for success

In a study I did in 2009 on Bar complaints in total, using its reports, only 15% of the complaints submitted 2005 –2008 resulted either in a Bar sanction, or a Supreme Court finding of a violation of law – 9% for the SC and 6% for the Bar. Of all the cases involving the HOA attorneys, I am aware of only 2 cases that resulted in “guilty” findings – one brought by a court appointed Receiver and one by a judge.

The State Bar’s real name is, The Benevolent and Protective Order of Attorneys (BPOA).

Complaints filed against an attorney must follow the same process as in civil court: cite the laws and Rules of Conduct broken, and supply concrete evidence of wrongdoing.

In the past I posted copies of the Arizona AG’s response to requests for help, as well as ADRE’s “not my job” response.  Both agencies said, “Go tell it to the Legislature.”

Arizona Attorney General will not prosecute for HOA justice

ADRE: Licensed AZ R.E. agents can do as they please in HOAs — Not My Job