America cannot be completely unified with HOA-Land not subject to Constitution
Our new #PresidentBiden and #VicePresidentHarris have a task before them if they truly seek to unite America. There are some 23% of Americans live under special laws for special entities known as #HOAs – #homeownerassociations – that are authoritarian local governments not subject to the #Constitution as required by all local and state governments.
Today I received a telephone rejection from ULC on my proposal for an HOA Members Bill of Rights. It comes a day after my Commentary on ASU Law silence containing a statement that there has not been a ULC response, some 3 weeks after ULC’s Oct. 29 meeting.
“I am waiting for a response from The Uniform Law Commission (ULC) that is drafting updates to UCIOA. Its Scope Committee is reviewing my request for ULC study of my proposal for an HOA Member Bill of Rights; it will meet again in January.”
Nothing in writing, nothing formal, just a phone call. The essentials of the call, after a short debate where we could not reach an eye-to-eye understanding of what my point was, is very disappointing.
“I appreciate your call and our discussion on my rejected proposal. I think we are too far apart at this time: ‘not functionally useful for lawyers,’ and ‘not workable.’” The Scope Committee and editorial board “had difficulty in seeing HOAs as a government.”
In this call I stressed my proposed statute that would mandate HOAs to be subject to the Constitution like any other local government; the response was, “they didn’t see how that would help.”
Long ago The Founding Fathers rejected the patchwork approach to modifying the Articles of Confederation and replaced it with a complete rewrite — The US Constitution and the Bill of Rights. It’s well beyond time that the HOA “constitution,” the CC&Rs, be replaced in its entirety as proposed inA Plan Toward Restructuring the HOA Model of Governance.
What do I mean by “rogue president”? I mean a president who does not know the law and doesn’t care to know it, or who knows the law and just ignores it. In either case that president is plain and simple an outlaw by functioning outside the law. Trump and rogue HOA presidents fit my description and are outlaws.
I have often wondered why communities, or at least the strong voice of a faction, government officials and legislatures have supported and collaborated with HOA presidents; just like we have witnessed on the national scene. And with their attorneys in full support! Obviously in pursuit of personal, self-serving agendas.
I’ve come to the conclusion that the HOA social and political dynamics are identical as we have witnessed on the broad national scale. I am not sure as to what came first, the chicken or the egg? To what extend has the HOA independent principality mentality and legal scheme contributed to the national scene? Or are the HOA dynamics just a reflection of the broader culture in America today?
To get a better understanding of the HOA dynamics at play, read:
This commentary follows up on my plan to restructure HOA governance[1] that first requires addressing the attitudes and views of BODs, the members, and the public in general. The conditioning and indoctrination by the biased views of the national pro-HOA special interest entity must be de-conditioned by a program of reorientation.
Once again I provide valuable information on the proper functioning of HOA boards in serving their “constituents,” their members.
The management[2] of a country, a state, or a local government, including the private HOA association, is commonly known as politics. Politics is:[3]
“the practice and theory of influencing other people on a civic or individual level. More narrowly, it refers to achieving and exercising positions of governance — organized control over a human community, particularly a state.
“exercised on a wide range of social levels, from clans and tribes of traditional societies, through modern local governments, companies and institutions up to sovereign states.
“A political system is a framework which defines acceptable political methods within a given society.”
Managing a government disguised as a nonprofit association has its unique requirements and demands that, for the most part, have been ignored. The commonly found guidelines from the national pro-HOA lobbying entity speak to an authoritarian government with member interests and concerns being secondary to the survival of the association. It’s an unacceptable deviation from the intents and purposes of our constitutional government.[4]
First, let me address the requirements for the sound management of a nonprofit association. Drucker[5] focuses on the overall, broad purposes and responsibilities of the board of directors (BOD) or board of trustees.
The general term “nonprofit” does not apply to HOAs because it is not a business nor a public government, but “government controls.” The reality of the HOA association is that it controls as does a public government.
Drucker asks, what is the mission of the nonprofit? A mission statement has to focus on “what the nonprofit really tries to do.” It cannot be “a kind of hero sandwich of good intentions.” Strategies “convert intentions into action.”
Most HOAs, especially the smaller HOAs, do not have a sound strategy that addresses their mission, goals, and values. But the HOA has an explicit mission and purpose as set forth in the CC&Rs[6] and need to be revisited and made consisted with Drucker and Batts (see below).
Second, in an excellent book on the need for director orientation,[7] the author feels board orientation is lacking and instituting a guideline will improve the nonprofit’s mission and goals. In his succinct book, as applied to HOAs, Batt’s makes the following important points:
Key areas of board action are “strategy, oversight, and policy.” In keeping with Drucker, “boards and board members should not micromanage the affairs” of the HOA.
The BOD has “full and final authority” over the HOA association; they are “not merely advisors” to the manager, other wisely known as the CAM. It’s regrettable that all too often the BOD abdicates to the manager and/or attorney who often are members of the same business trade group advancing their own self-agendas.
There is “no individual authority” of a board member to act and the president can only act based upon the authority set forth in the governing documents. Most presidents act, especially in the small HOAs, without board approval.
There is a “duty of obedience” to the laws and governing documents that all too often is ignored by not only rogue BODs, but by BODs who falsely believe to do so is in the best interests of the HOA.
[2] Peter F. Drucker, “Managementis the application of a set of principles relating to the functions of planning, organizing, directing and controlling an organization to effectively achieve organizational goals,” The Practice of Management, Harper Row, 1954.
[6] See “Restructuring HOAs – intents and purposes,” supra n.1.
[7] Michael E. Batts, Board Member Orientation, Accountability Press, 2011. It’s a short, to the point, and easy to read paperback. Batts has over 25 years on nonprofit boards and has served on several Washington panels.
The existing legal structure and state laws need to be dramatically altered to remove 40-plus years of problems. His long-term plan is to apply organizational development (OD) principles and methodology to correct this long standing affront to the US Constitution.
Go here to learn more about the Plan to restore constitutional protections. http://starman.com/mgmt
ULC apparently doesn’t believe so!
HOA Constitutional Government 