Texas – Page 2 – HOA Constitutional Government

co-opting the HOA “homeowners bill of rights”

In 2008 the 1994 UCIOA (Uniform Common Interest Ownership Act) was modified to accommodate the outcry from homeowner rights advocates. This shortened version is known as the Uniform Common Interest Ownership Bill of Rights Act (UCIOBORA), and is a political maneuver to co-opt the real meaning and intent of a “bill of rights.” Here’s an explanatory excerpt from UCIOBORA:

Further, ULC [Uniform Law Commissioners] acknowledges that it will often not be feasible to enact UCIOA 3.0, in part because of the difficulty drafters in the States may encounter in integrating any new adoption of the existing Uniform Acts with the laws that may already exist in a particular state. For these reasons, ULC promulgated a free-standing and relatively short Uniform Act that addresses all of the ‘association versus unit owner’ issues touched on during the drafting of the 2008 UCIOA amendments. The free-standing Act is known as the Uniform Common Interest Owners Bill Of Rights Act or “UCIOBORA”. While not all sections of UCIOBORA are identical to UCIOA 3.0, the concepts underlying each Act are the same, and are adjusted simply to recognize the simplified nature of UCIOBORA.

In short, UCIOA wasn’t selling. It seems that UCIOBORA is the sad result of the political motives to get UCIOA selling again. It’s a document that does not at all read like the US Bill of Rights, or any state constitution’s Declaration of Rights (state constitution equivalent of the Bill of Rights), or even the Declaration of the Rights of Man and Citizen (France, 1793). Far from it. Rather it reads like your current CC&Rs and UCIOA with a number of concessions to reality. However, it lacks substantive protections of homeowner rights, such as: a fair and just due process by means of an independent tribunal; fair elections procedures with equal and fair access to membership lists, and equal opportunity appearances in the HOA newsletter/website; restrictions on the right to foreclose, since the HOA is not in the same position as a lender who had advanced hard cash; and enforcement by means of penalties against board violations of the governing documents, otherwise all such laws are just recommendations dependent on the goodwill of the affected persons.

A homeowners bill of rights is necessary because the Constitution with its Bill of Rights amendments does not apply to private HOA governments. HOA governments operate outside the Constitution, which is greatly desired and defended by HOA supporters as they would not be able to act in ways that a civil government cannot act. A statement in a declaration that says that the HOA is subject to the Constitution is meaningless, since the Constitution does not apply to private entities. What is necessary is a statement that the HOA acknowledges the Constitution as the supreme law of the land and irrevocably agrees to be subject to it as if it were indeed a government entity.

Short History

In 1997, Elizabeth McMahon of AHRC filed a Homeowners Bill of Rights with the California Law Review Commission looking into revising California’s HOA statutes. In 2000, George K. Staropoli submitted a statement to the Arizona Interim HOA Committee, Homeowner’s Declaration of Independence from the HOA system of government. In 2006, AARP produced a public policy statement, A Bill of Rights for Homeowners in Associations, written by Houston attorney David Kahne. In 2006 the legal-academic aristocrats (lawyers for the real estate interests) at a Texas senate hearing proposed a Texas Uniform Planned Community Act (TUPCA). Responding to Texas homeowner rights advocates, the committee was told that UCIOA (the model act for TUPCA) was being modified to include a bill of rights section. In 2008, George K. Staropoli informed the California Law Review Commission of a proper Members Bill of Rights section to the Davis-Stirling Act (This section was later dropped from the revision).

Texas & Arizona: the different meanings of ‘standing to sue’ an HOA

The question on appeal was a question of a legal standing to bring this suit against the defendants. In general, the Texas appellate court in Webb clarified the legal status of “standing” (emphasis added),

Standing deals with whether a litigant is the proper person to bring a lawsuit. . . . To establish standing, one must show a justiciable interest by alleging an actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally. . . . As stated by the United States Supreme Court, the question of standing is whether the party invoking jurisdiction has “a personal stake” in the outcome of the controversy.

Traditionally, courts have held that this “personal stake” must exist at the commencement of the litigation and continue throughout the lawsuit’s existence.

With respect to the Webb decision, the Court noted (emphasis added), “Accordingly, unless Webb is an owner of a lot within Glenbrook Estates, she does not have standing to seek a declaration whether the Association waived enforcement of certain Covenants.” Webb was not the recorded owner of the lot, only her husband’s name appeared on the deed, and Webb could not establish any fiduciary relationship or other representation for her husband. Webb’s case was dismissed due to a lack of standing to sue.

See Webb v. Voga, No. 05-09-00074-CV, Tex. App. Dist. 5, July 15, 2010. (Glenbrook Owners Assn was a defendant).

NOW, TURNING OUR ATTENTION TO ARIZONA’S MOCKERY OF JUSTICE, where the Office of Administrative Hearings adjudication of HOA disputes was declared unconstitutional by the Maricopa County Superior Court (Meritt v. Phoenix Townhouse HOA, LC2008-000740, January 29, 2009), we find an unaddressed issue of standing to sue. In short, after the decision and after a denial of this writer’s right to file a Motion to Intervene by Judge Murdock, an attempt was made to bring the issue of a lack of standing to the attention of the court. The fact that the homeowner, who initiated the case, was no longer a member of the Phoenix Townhosue Assn. On Feburary 23, 2009 I wrote Judge McMurdie, providing the evidence and saying,

Petitioner and real party in interest, Ron Merrit (sic), had quitclaimed his deed to his co-owned property in the Phoenix Townhouse subdivision on October 10, 2008, prior to the superior court special appeal of October 23. (Exhibit 1). I believe this issue became moot at that point.

I reminded the judge,

If I had been permitted to intervene, these facts, discovered subsequent to filing the Motion to Intervene, would have been presented appropriately. Rule 60(c)(6) “does not limit the power of a court to entertain an independent action to relieve a party from judgment, order . . . or to set aside a judgment for fraud upon the court.”

On March 2, 2009 Judge McMurdie responded with the following Minute Entry (emphasis added),

The Court has received Intervener’s, George Staropoli, miscellaneous filings.

IT IS ORDERED striking these filings.

IT IS FURTHER ORDERED that the Clerk of Court shall not accept any filings from George Staropoli in this case.

Apparently, the Arizona courts have a different take on this doctrine of standing to sue when it comes to HOAs. The decision and harsh attitude of the Judge, and the absence of any government agency or official to defend the statute, allows a paraphrasing of Carl von Clausewitz’s, “War is the continuation of policy by other means” (On War):

“The judicial system is the continuation of policy by another means!”

Read the complete story of OAH constitutionality at

The State of Arizona will not protect buyers of HOA homes!

HOA made no attempt to contact soldier in Iraq before foreclosing

As a followup to the Bogcritics article, While Fighting in Iraq, Soldier Loses Home to HOA, a June 27th article appeared in the Telegraph Herald (Dubuque, IA), reporting that the Heritage Lakes HOA has hired a PR firm to address all the publicity stemming from this foreclosure. In short, in dispute are the HOA claims that the assessments were owed before going on duty and when Clauer was on active duty, and that they never knew he was on active duty. Clauer’s attorney replied that they never even attempted to call him.

Not addressing the claims and counterclaims, and adding to the justification for HOAs having the right to foreclose, I wrote in my HOA Constitutional Government commentary, “CAI attorney advises negotiate payments in HOA short sales“,

I have written repeatedly about the short-sighted, self-defeating, hardnosed position that the HOA does not negotiate and does not give in one inch. That posture stems from the great fear of a slippery-slope path to a loss in absolute power over homeowners — it would be a seen as a sign of weakness. How true that is — asking the HOA to face reality rather than to foreclose themselves out of business as the CAI lawyers have been exhorting HOAs to do over the years.

And this attitude is reflected in the actions by the Heritage Lakes HOA — we don’t gotta do nuthin’, cause we have the power.

Confederate Texas and HOA governments: de facto, unlawful governments

I have argued that HOAs are a second form of illegitimate and unlawful, de facto local political governments. Randy Barnett, a constitutional scholar, wrote: “Only if it is legitimate can an existing constitutional system issue commands to the citizenry that bind individuals in conscience.”[i] The HOA government legitimacy rests on just “laws” respecting the rights and privileges of the people without violating the rights of others; that their member’s acquiescence to obey these unjust laws and covenants cannot be misconstrued and interpreted as having consented in good conscience to have so agreed.

I have also argued that, under “government”, Black’s Law Dictionary offers the simple definition: “The structure of principles and rules determining how a state or organization is regulated.” And, to clarify by what is meant by a “state”, Black’s speaks in the same terms of the differences in function that distinguishes an association from that of the state, and of the need to determine the “essential and characteristic” activities and purposes of a state. A state, according to Black, is a community of people established for “securing certain objectives . . . a system of order to carry out its objectives.” Nothing-new here, but Black’s then goes on to say: “Modern states are territorial; their governments exercise control over persons and things within their frontiers” (emphasis added). And Black cautions not to confuse the “state” with other communities of people in other forms of organizations designed to accomplish other objectives.

What has come to light since these earlier Commentaries, is the US Supreme Court interpretations of “state” and “government” in a question of the legitimacy of the secessionist State of Texas, in regard to the sale of bonds by Confederate Texas.)

The Court reasoned (emphasis added),

It [a state] describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community . . . .

The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state . . . . A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.[ii]

This 142 year-old opinion supports Black’ definition and the essential characteristic that makes an entity a government: a government is the person or group that controls and regulates the people within a territory. While the functions and services provided by a government are shared with many other entities, such as businesses per se and nonprofit organizations, this definition “separates the chaff from the wheat.”[iii] HOAs are the governing body of subdivisions that are subject to covenants; subdivisions are territories, plain and simple.

The Supreme Court further held, with respect to lawful and legitimate actions by de facto governments, and Confederate Texas was so considered,

It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens . . . which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual [de facto], though unlawful government; and that acts . . . intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.

In other words, the acts and actions by a de facto and unlawful HOA political government have validity to the HOA “citizens,” unless these acts and actions defeat the rights, freedoms, privileges and immunities of the people, the HOA members. The people are still subject to the Constitution in spite of all those arguments that the Constitution is negated by private contracts. This view is consistent with Barnett’s arguments for obedience in conscience.

Unfortunately for our “Modern Times,” there is a great division within this country, not this time between the Blue and the Grey, but between the Blue and the Red — the major political parties. This great division, this Second Civil War as author Brownstein titles his book[iv], is a war of ideology and dogma — as in the case with HOA “true believers” — coming before “for the good of the county” and the people.

Notes

[i] See The legitimacy of HOA boards and state legislatures, George K. Staropoli, citing Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty, Ch. 2 (Princeton University Press, 2004).

[ii] Texas v. White , 74 U.S. 700 (1868).

[iii] Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs, George K. Staropoli (included as Part III, “American Political Governments”, in The Foundations of HOAs and the New America.

[iv] Ronald Brownstein, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America (Penguin Books 2007).