Tag: social contract

HOA Kindle books

I have compressed and summarized my research on HOA constitutional  issues over ten years and have produced several Kindle books for a comprehensive understanding of the issues.  The historical basis for the current version of utopian societies begins with a review of The Homes Association Handbook of 1964, and the history of Community Associations Institute.

I’ve tried to bridge the gap between the writings of the academic,  political scientists and the people, and present and clarify the constitutional issues facing the curent HOA hegal scheme.

The following Kindle ebooks are available for downloading

2.

The Foundations of Homeonwers Associations and the New
America REVISED by George K. Staropoli (Kindle Edition – Oct 14,
2009) – Kindle eBook

Buy: $5.95
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3.

Establishing the New America: independent HOA
principalities by George K. Staropoli (Kindle Edition – Jul 17,
2008) – Kindle eBook

Buy: $15.95
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4.

Understanding the New America of HOA-Lands by George Staropoli (Kindle Edition – Sep 24, 2010) – Kindle eBook

Buy: $8.95
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“Beyond Privatopia” – understanding the economic theories that brought about the New America of HOA-Land

Beyond Privatopia: Rethinking Residential Private Government, Evan McKenzie (Urban Inst. 2011)

 

Once again, a short book, 168 pages, by McKenzie is packed with very important information for those seriously interested in understanding the HOA phenomenon. A must reading for the public interest nonprofits, the legal-academic aristocrats, and all state legislators who have failed over the years to face the realities of the social and political impact of HOAs on our democratic system of government.

 

In his Preface, McKenzie proclaims that “this book is written in my own unusual hybrid perspective”, having one foot in the legal-academic club and the other foot amongst the homeowner rights advocates. He names names of leading advocates (p. 121, n. 4): Shu Bartholomew, Jan Bergemann, Pat Haruff, George Starapoli [sic], Fred Pilot and Monica Sadler. Yet, my impression so far is that the book is addressed to the legal-academic aristocrats to remind them that America was not founded on the state being an neoclassic economic force, a business, concerned with efficiency, productivity, wealth redistribution, or rational choice But, that America was founded on principles of democratic government as set forth in the Preamble to the US Constitution (my interpretation):

We the People of the United States, in Order to form a more perfectUnion, establish Justice, insure domestic Tranquility, provide forthe common defense, promote the general Welfare, and secure theBlessings of Liberty to ourselves and our Posterity . . . .

In Chapter 3 McKenzie discusses the libertarian views of Robert H. Nelson and Nozick, among others. He references Nelson with, “They contend that CIDs [McKenzie’s generic term for HOAs] are more efficient and more democratic [my emphasis] than municipalities and should replace them.” (p. xi). He present’s Nozick’s 1974 argument (p. 47) for “minimal states” that lead to “private protective associations.” Minimal states and protective associations have become today’s call for less public government and the CC&Rs enforcement agency known as the HOA.

 

Nozick’s defense of minimal states, according to McKenzie, is that “This [minimal] state would be legitimate, even though it may infringe on the liberty of individuals [my emphasis], because from the bottom up it would have been based on voluntarism and the rights of contract.” Sounds eerie doesn’t it? We hear these arguments today in defense of the HOA legal scheme, but as McKenize argued, they are based on myths. “The notion that individual owners agreed among themselves to perform these services for each other, and subsequent owners took over from them, is entirely fictional.” (p. 60).

 

Enough for now. More to come . . . .

In search of the elusive ideal HOA agreement

 

I received an email from a well-intentioned homeowner in Georgia. He was on the committee to rewrite the CC&Rs to make it fair both to the 692 homeowners and the HOA, which, I hope he realizes, is the current board of directors. He asked for my input, so I wrote in return:

 

  1. Do you think the Committee can create a more perfect union than that attempted in writing the US Constitution?

  2. Do you think 692 people can agree on everything in the CC&RS that you are putting together?

  3. Do you think 692 people really care about HOA government participation, or did they just want to buy a home?

  4. Would the Committee and the HOA Board sign, along with the 692 owners, the  Truth in HOAs Disclosure Agreement?

  5. Would the Committee include a guarantee that the HOA will maintain property values in exchange for the various waivers and surrenders of the owner’s private property rights and interests, both explicitly stated or implied by the CC&Rs, or by future court rulings? If not, then what is the buyer getting from the HOA? In a true democracy, people give up certain of their rights to the government in exchange for gurantees, justice, protections against more powerful factions, and to obtain an orderly, smooth-running society.

  6. Would the Committee include a prohibition on“ex post facto” amendments to the CC&Rs, similar to that in the US Constitution? That is, honor all prior CC&Rs versions existing at the time of each owner’s purchase? In other words, they are all grandfathered.

  7. Would the Committee include wording to the effect that the HOA irrevocably agrees to be bound and subject to the US Constitution and Bill of Rights in the same manner as if it were a local public government entity, as all other forms of are bound and subject? The phrase, “in the same manner as if it were a local public government entity,” is mandatory. Simply agreeing to obey the Constitution, as found in some CC&Rs, is meaningless would not subject the private HOA entity to the 5th and 14th Amendments.

Now, I hope you will realize the impossibility of your task and its expected failure. No one can expect a bona fide acceptance and willingness to obey any CC&Rs that are created as a mass marketing device to be sold to the public at large. And one that cannot be modified by the buyer in a true give and take exchange necessary for a valid and binding contract.

A legitimate and valid government: obedience in conscience

 

In 2004 I wrote about The Legitimacy of HOA Governance, quoting the writings of constitutional scholar Randy Barnett:i

 

A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority . . . constitutional legitimacy can even be seen as a product of procedural assurances that legal commands are not unjust”. . . .”A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.

 

Barnett speaks of justice by explaining, “the founders’ view that ‘first come rights, and then comes the Constitution’. The rights that precede the formation of government they call ‘natural rights’ … For these are rights that the people possess before they form a government and therefore retain; they are not positive rights created by government.”

Natural rights define a private domain within which persons may do as they please, provided their conduct does not encroach upon the rightful domain of others. As long as their actions remain within the rightful domain, other persons — including persons calling themselves government officials — should not interfere without a compelling justification.”

And, more directly relating to HOAs where homeowners are assumed to have given their unanimous consent to be governed by the HOA, Barnett wrote,

If there are some rights that cannot be waived or transferred even by the consent of the right-holders, then the unanimous consent regimes [including HOAs], to be legitimate, must offer procedural assurances that these inalienable rights have been protected.

In other words, these inalienable rights are independent of any form of government and that a legitimate government cannot take away or restricted. And this is why I cannot over emphasize the important of arguments based on fundamental principles of American government in our efforts to obtain justice. And this is our biggest problem in fighting HOA governance and its legitimacy over homeowners. This bypasses the important question of contractual consent.

These attitudes and beliefs on the legitimacy of laws and government, and the people’s obligation to obey in good conscience, are not new. They can be found dating back some 260 years in Emmerich de Vallet’s, The Law of Nations.i Exchanging the word “nation” with “homeowners association” would not affect the content of this treatise, except in areas pertaining to the objectives and goals of the HOA society — set forth in its declaration — as compared to a democratic constitution where the primary concern is the people and not the state.

Vattel wrote, “If the greater part of a free people . . are weary of liberty, and resolved to submit to the authority of a monarch,—those citizens . . . though obliged to suffer the majority to do as they please,—are under no obligation at all to submit to the new government . . . . “ (P. 48). In contrast to the HOA constitution, which by its very nature repudiates a democratic government of the people, by the people, for the people, democratic government’s primary concern is to provide for justice. “This obligation flows from the object proposed by uniting in civil society, and from the social compact itself.” Our own Preamble lists “establish justice” first among its objectives. And Vattel cautions, as advocates today ardently have repeatedly sought redress, “The best laws are useless, if they be not observed” and that “a penal sanction becomes necessary, to give the laws their full efficacy.”

In April of this year I wrote The legitimacy of HOA boards and state legislatures , continuing to quote the views of Barnett,

That [the homeowners’] acquiescence to obey these unjust [HOA] laws and covenants cannot be misconstrued and interpreted as having  consented in good conscience to have agreed with the laws or with the HOA’s governing documents.  

 

The vast majority of these HOA and condo statutes and “acts” do not measure up to qualify as legitimate laws.  Our public government, realizing that it cannot achieve a voluntary acceptance and willingness by homeowners to obey these laws in conscience,  must resort to repressive and punitive laws as found in any other dictatorship or banana republic, even those with a facade that the people have a right to vote.  These unjust laws mimic the private government “constitutions”, the governing documents of these planned communities, with their authoritarian HOA governments.

In our recent past, we have witnessed the Rule of Law drifting off into oblivion with increasing encroachments by the short-sighted Rule of Man. By Man who has been preoccupied and narrowly focused on his own personal agenda of “what’s in it for me”, his political legacy, his allegiance first and foremost to the objectives and dogmatic principles of his political party rather to the good of the country and his fellow man.

America has lost its direction and the reason for its being. It is a necessity at this time for all to recapture those reasons for being and to re-establish their rightful position in guiding the actions and decisions of our elected representatives. Only We the People can restore the lost America of our origins. And those who defend the HOA legal scheme, for whatever their perceived benefits, have chosen to accept an authoritarian regime and to have denied and renounced our democratic system of government.

As stated in the Law of Nations, the people who disagree with the majority’s preference for a democratic government, and who have a right to disagree and who prefer HOA governance — who find democratic laws as illegitimate to which they cannot be bound in good conscience — are the ones who should pick up and move, not the majority who still prefer democratic government: “they may quit a society which seems to have dissolved itself in order to unite again under another form: they have a right to retire elsewhere, to sell their lands, and take with them all their effects.” To the bewilderment of many Americans, in our New America, this renunciation of and succession from American constitutional government is acceptable to all our branches of government: executive, judiciary, and legislative.

notes

i  Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton Univ. Press 2004).

ii The Law of Nations or, principles of the law of nature, applied to the conduct and affairs of nations and sovereigns, Emmerich de Vattel, 1758, (Joseph Chitty, ed., 1883), http://www.constitution.org/vattel/vattel-01.htm.

TN firehouse adopts HOA philosophy — a business entity

If you haven’t heard, a Tennessee firehouse let a house burn down because the owner didn’t pay a subscription fee, above paying his general taxes.  The firehouse is operating as a business:  revenues  = expenses.  But, they are a public government entity and not a business!

CAI, in its efforts to avoid having HOAs declared a de jure public entity, and subject to constitutional restrictions, has confused the issue by treating the HOA as a privately contractual business.  As I have explained many times (See in general, Understanding the New America of HOA-Lands), government is more than a business, simply based on their objectives —  making a profit vs serving the people.  The HOA legal scheme as a fascist style of constitution — the state comes first above individual liberties and freedoms, and the objective of the state is corporation/business based.  The same as we see with the firehouse.

 The purpose of our government is clearly stated in the Preamble to the Constitution, and by the Social Contract (see Understanding) whereby man surrenders his natural rights to government in exchange for protection of their unalienable rights against harmful factions in society, to provided for a smooth and organized functioning of society by setting rules and regulations, by caring for those facing hardships, and by punishing offenders of the society’s rules (criminal acts). 

This incident is just but one incident of the blurring of the lines between institutionalized private HOA governments and public government.  Our elected representatives are confused about the purpose of government. Government cannot be done away with under dogmatic ideological cries of “government intrusion”, but is necessary for justice, to protect our freedoms, and in no way can be seen as evil while subversive — opposing  Constitutional government — HOAs are praised and mandated.