Two distinct levels for HOA legislation

I have classified two levels of HOA reform legislation that are needed to bring justice to homeowners: systemic and operational.

By “systemic” I mean inherent in the structure and legal model of HOA governance, which involves constitutional issues concerning the validity of the declarations and the pro-HOA state laws.  The controversy focuses on the defenses of the HOA legal scheme, such as, private contract interference and “agreement to be bound.”  The contractual defense denies the application of the Constitution and the surrender and waiver of any rights that members claim to be denied.  The agreement defense says the private contract was validity and legally agreed to by the home buyer, even though contract law 101 is usurped by the equitable servitudes doctrine.

By “operational” I am referring to the management and operation of the day-to-day HOA that is regulated by existing pro-HOA laws and the adhesion CC&Rs.  Reforms at this level are, for the most part, attempts to restore rights and privileges denied by the constitutional defenses mention in the above paragraph. This defense focuses on the law is the law and any concerns for fair, just and equitable treatment are not addressed in any of the states or governing documents, and therefor are irrelevant.

The purposes and aims in the Declaration have no bearing on the purposes and aims found in the Preamble to the Constitution.

It should be obvious that the operational reforms are limited by the existing failure to achieve constitutional reforms.  Addressing the broader constitutional issues will greatly help the operational problems that concern most homeowners.

last day for HOA-Land Nation promo.

Absolutely every person even thinking about moving into a Homeowners Association should read the latest work by homeowners rights activist and author George Staropoli. . . . With a quarter of American homeowners now living under HOA governance, more and more stories of HOA abuse surface each day. Five stars for this one. Protect yourself by reading it before you make the ‘HOA decision!’ 

(Excerpt of  review by Ward Lucas on Amazon).

Excerpt from Nation Preface:

 There is a puzzling attitude or view regarding HOAs that has existed for  over 20 years.  It can only be explained as an unspoken alliance that has reached the level of a religious fervor. Even if a person has a limited understanding of the law, this silence defies common sense. This alliance seems to bind all participants to:  Thou shalt not speak evil of the HOA.  

“This white paper puts an end to the silence!”

Get your Kindle version today at https://www.amazon.com/dp/B07R6XC1YT

the “ends justify the means” for HOA-Land

It comes as no surprise that the vast majority of persons living in an HOA approve and love their HOA, finding only minor problems with the board of directors or HOA managers. The annual “satisfaction” surveys produced by the pro-HOA trade group, CAI, reflect this positive attitude. There is no denying that the HOA subdivision appeals to the desires and wants of home buyers and bring many benefits.

However, as this whitepaper addresses, the means to this end are highly suspect and harmful to our democratic system of government.

Find out how HOAs are detrimental to democratic institutions and why there is no genuine justification for permitting private government HOAs to exist as outlaw governments.  Except, to support the money interests of the promotors — all addressed in the Nation.

Get the Kindle version of The HOA-Land Nation Within America now during this promo.

HOA-Land Nation Kindle version now available

For those of us who are aware of the defects in the HOA legal scheme, the goings-on  with AG Barr is nothing new. He’s acting as if he were an HOA attorney defending the “boss” and to hell with law and order and constitutional safeguards.  America is on the slippery-slope to the rule of man, like with HOAs, and disorder.

I’ve released today a Kindle version of my white paper, “The HOA-Land Nation Within America.”  You will need to download the free Kindle app for PC, tablets or cell phones if  you don’t have access to Kindle eBooks. Available as a special promotion thru Saturday, May 4.  It’s an eye-opener.

A paperback version is planned for June and will be available from Amazon like any other book.

Amazon reports that

#1 New Release in Housing & Urban Development Law

 

Price New from Used from

 

Kindle, April 30, 2019 $0.00

Check it out at https://www.amazon.com/dp/B07R6XC1YT

Below is the map from the Nation showing the distribution of HOAs across America. The “percent” applies to the same color representations.

US HOA map

“HOA-Land Nation” book announcement

A very important publication, “The HOA-Land Nation Within America” is on its way.  It will be a white paper addressing HOAs from a constitutionality point of view. You know, those arguments that nobody wants to hear, especially CAI and its stalwarts, but are a very valid reflection of reality. Moving along rather rapidly, the ebook version on Amazon should be available next week.  A paperback version will follow by the end of May.

It will be a somewhat legalese publication discussing the law, court cases, and legislative developments that attempts to explain the legalities of HOA-Land.  It provides a comprehensive picture of HOAs in America and breaks the silence of

Thou shalt not speak evil of an HOA.”

See pre-release here.

“Rules of Engagement” apply to CAI

Many may feel from all my criticism that I unjustifiably have it in for CAI.  Well folks, you decide whether the CAI propaganda statements and publications that are PR releases is in conflict with its numerous acts before state legislators and the courts.  These contradictory stances are revealed in CAI’s amicus briefswhat I say I don’t do [1].

Advocates have failed to apply the Rules of Engagement to such Doubletalk[2] from CAI allowing the legislators, the media and the BODs to see no evil, hear no evil speak no evil.  These Rules are a very important weapon to discredit CAI and stop the policymakers from trusting their misleading statements; to start believing in the validity of the positions and arguments for HOA reforms coming from homeowners and homeowner advocates.

As a prime example, and there are many others found in the numerous CAI briefs dealing with constitutional HOA issues, is the NJ Supreme Court case in Dublirer.[3] It involved the free speech rights of a homeowner to equal access the HOA facilities in order to distribute BOD election materials to his neighbors – an exercise of his rights in a democracy. Allow me to repeat my quotes[4] from CAI’s NJ Supreme Court amicus brief in Dublirer.[5]

CAI-NJ’s concern is the attempt to convert private communities into constitutional actors and to open such communities to access not only to speakers from within the community but also to the public, while ignoring contractual agreements and non-constitutional protections.

The relationship between the plaintiff and the defendants here is that of a business corporation and so is similar to that involved in any other business corporation. A shareholder who wishes to run for a position on a corporate board has no right to post campaign signs on the corporation’s property. . . . He has no constitutional right to distribute his campaign materials within the cooperative’s property simply because mailing them to the other tenant/shareholders may cost him money”.

In plain English, this is secessionist and a rejection of the Constitution. CAI’s position says the people in an HOA will decide what laws to follow or not to follow. It is an incredulous statement from the organization that claims to be the one and only voice on HOAs, but apparently does not understand or simply ignores constitutional law. The CAI position is in opposition to the  long-standing legal doctrine on the delegation of legislative (lawmaking) powers to private persons.

In order to win, advocates must muzzle CAI’s lack of “candor to the tribunal.”[6]  Judicial and legislative  doctrines hold that an allegation or argument that goes unanswered is held to be true.  That’s why, it seems, advocates are viewed as unbelievable,  because of their repeated silence resulting from a lack of knowledge on how to respond.  This must change!

 

References

[1] See in general, Will the real CAI standup: its contradictory beliefs, pronouncements and goals.

[2] From George Orwell’s novel, 1984, where a person holds two contradictory statements at the same time.

[3] Dublirer v. 2000 Linwood Avenue,  103 A.3d 249 (NJ 2014).

[4] See my Commentary for additional quotes: CAI: the HOA form of government is independent of the US Constitution.

[5] Dublirer CAI Amicus.pdf.

[6] Attorney Rules of Professional Conduct, Rule 42, E.R. 3.3

Are HOA state actors created by statutory use of shall/may?

The use of the words “shall” and “may” have generally accepted meanings in state laws and statutes.[1]  Their use in bills and laws relating to HOA-Land raises the highly controversial question of: Are HOAs state actors?  Wayne Hyatt — former CAI president – wrote in 1976 that HOAs were mini-governments.[2]  In general, a state actor is an entity that is functioning as “an arm of the state” or “in place of the state.”[3]  Does the use of “shall” that is defined as “mandatory” make the HOA an arm of the state?

In sum, the US Supreme Court criteria for classification of a state actor can be found in Brentwood:[4]

  1.  From the State’s exercise of “coercive power,”
  2. when the State provides “significant encouragement, either overt or covert,”
  3. when a private actor operates as a “willful participant in joint activity with the State or its agents
  4. when it is controlled by an “agency of the State,”
  5. when it has been delegated a public function by the State
  6. when it is “entwined with governmental policies,” or
  7. when government is “entwined in [its] management or control.”

In regard to the institutionalization of HOAs, or as I refer to it, HOA-Land, the above tests 1 – 3, and 5 -6 would provide clear and convincing evidence that the policies of state legislatures, as demonstrated by the enacted pro-HOA laws, have created HOAs as state actors who willingly undertake state actions.  Review your state laws for the use of “shall” and the consequences of that mandate on your individual property rights.

***

The pro-HOA laws enacted by state legislators, aside from other constitutional concerns with respect to the 14th Amendment protections of the equal protection of the law and valid due process, use “may” and “shall” that are permissive and mandatory obligations upon HOAs (and condos).  “May” is commonly found as “the board may set the time of the annual meeting,” or “may charge . . .”  The overlooked impact and consequence of this word is to legalize activities and actions that were all-to-fore not legal rights granted to the HOA.

They are now made a legal activity, if your BOD so chooses.   Prior to a statute using “may” the action or activity had to be granted by the governing documents.  If so, by including it in a statute lends “officialness” to the action, and a very difficult process to declare the statute invalid.  It protects the governing documents if so permitted.

The right granted by the use of “may” to HOA boards (BOD) to fine or monetarily penalize members and filing a lien with the right to foreclose, for example, makes it a legal action not granted to other nonprofit organizations.  Can you imagine PBS or United Fund placing a lien on your failure to not pay your pledge to support their existence? No way!  Why allow HOAs this legal right?  Which of the above criteria does it violate?

***

Now the heart of the matter focuses on the use of “shall” that is a mandatory order to the HOA to act on behalf of the state —  fine those members and collect costs including attorney fees, etc. Not only is it a legal requirement for the HOA to act as ordered, the BOD has no choice, no discretion to do otherwise, nor can the members reject a potential amendment or rule change. So much for democracy at work in HOA-Land!  Which of the above SC criteria does it violate?

It is well beyond the time for those public interest nonprofits touting their support for the Constitution and democratic values to get involved and stop this disgraceful and unconscionable legislation.  Stop the legislation that coerces, encourages, and supports private government, authoritarian HOAs.  Legislation that advances the view that the HOA “constitution” is a better deal than the 232-year-old US Constitution.  Shameful!

***

The American experiment in democracy, as the youthful America was described by Alexis de Tocqueville[5], is being subverted by the HOA legal scheme supported by elected officials and academics parading as the nouveau Philosopher-Kings preaching to the elected government leadership.  In 2009 I commented:

“I explore this failure of the American Experiment and the rise of independent HOA principalities in Establishing the New America of independent HOA principalities (see New America).”

Notes

[1] See “Legislative shall,” paper with quotes from Yale Law Journal and the Arizona bill drafting manual as a specific example.

[2] Read his 1976 statement in To be or not to be a mini or quasi government? Hyatt said ‘yes’. (2015). Wayne Hyatt was a prominent figure in the promotion of HOA-Land as well as an important person in creating CAI in 1973, serving as its second president. I believe he had strong influence in drafting the Del Webb Declarations still in use today.

[3] In general. see arguments for state actors: HOA Case History: state actors or mini/quasi government (2011); Do state HOA Statutes Establish HOAs as State Actors? (2012); Judicial error regarding HOAs as mini-governments and state actors (2015), “This commentary, somewhat technical at times, demonstrates the failure of the courts to address the fundamental issues that HOAs are mini-governments, and that by the collective functions and actions of HOAs there is clear and convincing evidence to make the case that they are indeed state actors. The whole is greater than the sum of its parts.”

[4] Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001).

[5] Democracy in America, Alexis de Tocqueville (Vol. 1, 1832; Vol. 2 1840). Printed by Alfred A. Knopf (1972).