Are legislatures sovereigns who can do no wrong? Must they delegate authority to HOA regimes?

The Arizona Legislature, this past regular session, withheld transmitting bills to the Governor after having been duly passed.  The Governor claimed political gamesmanship and obtained an Arizona Supreme Court order that declared that bills must be submitted to the Governor in a reasonable time, and that the actions by the Legislature were unconstitutional.

With the Republican leadership now asking for a “recount” by the Supreme Court on the budget order, it appears that they are uneasy about flaunting the law. The legislature has  disregarded the Supreme Court’s order that a  bill must be submitted to the Governor within a reasonable time.

Now, of course, there are also those other questions about “internal” procedures by the “sovereign of the state of Arizona”, the Legislature, as it seems that the Legislature firmly believes that the ”sovereign can do no wrong.”  Let’s see, there was the June 7, 2008 invention of a new floor rule to defeat the gay marriage bill.  And just the other day, an alleged one voiced vote by Senate President Burns in his Rules committee, which was sufficient to pass the budget bill.  What happened to the rules on majority  vote?

And, of course, there are all those failures to pass HOA reform bills to restore the rights, privileges and immunities supposedly granted to ALL citizens, whether or not living in an HOA.  It appears that no legislative oversight is necessary of HOA governing regimes, holding HOAs to be  unaccountable under the Constitution, but the regulation  and control of citizens by these private organizations in place of legislative authority is permitted.  Is this the new world order?  Is this, too, an unconstitutional usurpation of legislative authority?

Part III (p . 29  -30), American Local Governments  (of The Foundations of Homeowners Associations and the New America),  recounts some of the relevant principles and philosophy of democratic, representative government. Quoting John Locke (Ch. IX, Of the Ends of Political Society and Government, § 141, Second Treatise of Civil Government, John Locke, 1690).

The legislative, or supreme authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges;

The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the common-wealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them.

I believe that the legislature is answerable not to just half the people, but to all the people, and takes an oath to uphold the both the US and their respective state constitutions.

American governments: HOAs under servitudes & Public government under the Constitution

Part III.  American Political Governments:  HOAs under servitude law & public government under constitutional law.    

This examination into HOA history is not light reading, and more than a quick run through is necessary for a good understanding of the arguments and concepts.   Supporting authoritative and references abound in the footnotes that should be read as they serve to clarify and expand the topic.

 Available at this time in Microsoft eBook format* at Part III, and as a PDF at PDF version

Excerpt:

It is an inescapable conclusion that we live today in a New America consisting of private government HOAs subject to servitudes law, and of democratic public government subject to the US Constitution.  HOAs have been allowed to secede from state government, with the “sovereign’s” blessings.  If the Southern States only had recourse to servitudes law in 1861, our Civil War could have been avoided.

The Foundations of Homeowners Associations and the New America, which was comprised of two parts: 

 Part I.  The Mass Merchandising of Planned Communities: How Americans lost their constitutional and property rights. Available in Microsoft eBook format* at Part I.

 Part II.  National Lobbyist for HOA Principalities.  Available in Microsoft eBook format* at Part II.

 All Parts are available together in PDF format at HOA_History. 

 *  This format was designed to be read almost like a book on a PC or a mobile device, like a pocket PC or tablet.  A free and easily installed software download is required, and can be obtained from Microsoft at Microsoft Reader.

HOA principalities where there’s no ex post facto or eminent domain protections

A homeowner from Apache Jtn, AZ (eastern end of Phoenix metroplex) contacted me yesterday saying that her palm trees violated the ACC’s “view of the world.”  She had moved in 4 years ago and planted palm trees like many other homes already had planted.  She was informed by the HOA that she had to remove the palms or be fined.  Amazingly, she was subsequently informed that CAI attorney Krupnick (a CAI honorable and highly lauded CCAL member, and employee of CAI Ekmark) that all palms in place over 4 years were outside the statute of limitations, but the HOA could remove trees planted less than 5 years.

 

Wow!!  HOAs escape ex post facto restrictions and eminent domain protections — no compensation was offered homeowner.  Welcome to the HOA-land of independent principalities with their own multiplicity of protected private “constitutions.”  

 

The argument advanced for amending those so-called contracts, and upheld in the courts, is that they contain an amendment procedure, and so long as the procedure was followed they are valid.  So argue the “expert” CAI attorneys.  But, they want you to ignore the other side of due process — substantive due process where the HOA “law” is itself a violation of our system of government. 

 

And forget about any question of a buyer’s “reasonable expectation” as a requirement for a valid amendment.    Or that there is no explicit waiver of the surrender of any property rights.  Or, that under contract law a CC&R amendment easily falls under an “agreement to agree” (”A-to-A”), and is not binding. An A-toA is an enforceable document if the specifics are sufficiently definite, as well as compensation, but some details are to be worked out.  In a valid A-to-A, parties cannot bind themselves to negotiate to reach an agreement on some issue or important detail. (See Black’s Law Dictionary).  What is an amendment?  It is not a negotiation between the HOA and every individual homeowner, especially if not 100% approved!  It can be a very important issue (detail) not heretofore contemplated or envisioned by the buyer.

 

How then are they valid?  Because the courts have treated this CC&R “contract” not strictly in terms of the words contained therein, but quite liberally by ascribing public government attributes to the HOA, far and above any reasonable interpretation or construction of the CC&R “contract”, and beyond any reasonable or “buried” intent to form a de jure government.

 

Furthermore, if equitable servitudes were indeed subservient to constitutional law, and not as the Restatement of Servitudes (common law) argues –  servitude law should prevail over constitutional or contract law — we wouldn’t be seeing this travesty of American democratic principles, of fairness and justice for all. 

 

What is becoming of America?   See Establishing the New America: a new book.

 

Support your local legislator fighting for your HOA reforms

This was the message strongly urged by Florida Representative Julio Robaina during his appearance on the OnTheCommons internet-talk show with Shu Bartholomew: Send those emails to your district legislators asking them to support your position on HOA reform legislation. “It really works”, he repeated again and again.

“There is nothing more powerful and helpful to a legislator than to have a fellow legislator catch you in the hall and say, ‘I got 200 emails in support of your bill.’”  Rep. Ronaina added,  “don’t forget to mention that you are a voter and will remember him at election time.”

He was extremely disappointed by the failure of the people, the homeowners who have called or emailed with problems, who did not step forward in support of reform legislation.

Rep. Robaina also reflected on the position of the special interests, particularly CAI, whom he said had their own agendas that were not favorable to the homeowners. “If the people really knew!”

Go to http://onthecommons.us/ to hear this important interview. And take action!!

Homeowners exchanging property rights for HOA property values

“When we first moved here this was like the wow factor,” said [...] of his neighborhood in rural Denton County. “You see this beautiful community up in the middle of the country.”  (WFFA.com, Dallas/Ft worth, “Vanishing amenities create resident backlash at HOA“, June 2, 2009 ). 

 

The attitudes by the homeowners in this story reflects that of the vast majority of those who bought into HOAs — to maintain property values.  It is the underlying fundamental principle as to why legislators will not undertake HOA reforms.  “You got what you asked for” seems to be the view of most state legislators.  So, even in the face of pervasive and open abuse and the flaunting of state laws, the legislators have succumbed to the industry lobbyist propaganda of “It’s just a handful of malcontents. Why change the laws?” 

 

Most homeowners and advocates will find the following comments offensive.  But, based on my 10 years as an advocate and endless research into the issues, my comments are well founded in fact.

 

Until HOA reform advocates can focus on this strong argument for not changing the laws and attack the bogus contractual nature of CC&Rs, the unconscionable adhesion aspect of these CC&Rs, the state protection of HOAs that deny constitutional protections for homeowners, and the independent principality nature of these HOAs then nothing will be accomplished!  The ends – maintaining property values – does not justify the means – independent principalities where the people are not subject to constitutional protections.

  

Most advocates fear that HOAs, as a private form of contractual government, will disappear from the face of the earth even if subject to constitutional protections.  This will not happen –  see General Motors, the banks, etc.  However, to accept HOAs as is, and for state governments not to issue bona fide and effective warning advisories, is not to accept the Constitution and the American system of government for all peoples.  The Constitution is not all about contractual obligations, but to “establish justice, insure domestic tranquility, promote the general welfare. . . and to secure the blessings of liberty.” 

 

 

Accepting authoritarian, private HOA regimes is to secede from the United States, and is a repudiation of American democracy and our cherished values of individual freedoms and liberties.    And all for the unsupported statements within the HOA constitution,  as the homeowners in this story have discovered, that do not even provide a promise to maintain property values (they contain a simple statement of an objective), or provide any guaranty regarding HOA performance, as would be expected in any legitimately negotiated contract.

 

For more info, see Exchanging individual property rights for property values.