The “end of denial” of unconstitutional HOAs

Ibram X. Kendi’s article, “The End of Denial,” appears in the September 2020 Atlantic Monthly. While Kendi argues that the upsurge in the denial of racism is a major step to ending racism in America, I can expand upon this mindset shift, this reorientation,  to ending the denial of the unconstitutionality of the HOA legal scheme and model of local government. This mindset shift will produce the broad, substantial reforms to the current prejudicial view favoring authoritarian,  private government HOAs.

Applying Kendi’s view to HOA constitutionality, Kendi urged “The American people [to] give policy makers an ultimatum: Use your power to radically reduce inequity and injustice, or be voted out”; and that “the American people [must] demand equitable results, not speeches that make them feel good about themselves and their country.”[1]

I have proposed a plan to accomplish this HOA mindset shift,

“Restructuring the HOA-Land Nation  requires a cultural change in in the way of life of members; and an appropriate change in attitude by  state legislatures, the people and the home buying public.”[2]

and describe the underlying HOA social and political culture,[3]

“This HOA-Land Nation Within America white paper challenges, confronts, and exposes the self-interest bias by pro-HOA stalwarts, and contains authoritative documentation and evidence as well as statements used in this indoctrination process.”

The question that I posed to the policymakers, the constitutional pundits, and Arizona Legislature as far back as 2006 remains long unanswered:

“Can private parties enter into contractual arrangements, using adhesion contracts and a constructive notice consent, that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?”

Following Kendi’s lead, it is well beyond time for the denial of unconstitutional HOAs to end. It remains in the hands of Americans to demand that the state and local governments, the policymakers, and the constitutional pundits restore full citizenship to Americans living in authoritarian, private governments functioning outside the Constitution.

References


[1] “Ibram X. Kendi on ‘The End of Denial’”, Press Room, The Atlantic Monthly, August 5, 2020.

[2] George K. Staropoli,  A Plan Toward Restoring the HOA Model of Governance, StarMan Publishing (2019). Amazon.com: https://www.amazon.com/dp/b089yvpcwp.

[3] George K. Staropoli, The HOA-Land Nation Within America, StarMan Publishing (2019). Amazon.com: https://www.amazon.com/dp/b07r6xc1yt.                               

class action against HOA? not really

For those wondering about class action suits, they are only possible within an HOA IF 40 plus members sign-on. Here’s a summary of requirements:

The Georgia Federal District Court held that the Plaintiff met the four requirements for class certification under Federal Rule 23(a), specifically:

  1. Numerosity – Plaintiffs allege more than 100 class members and 40 is generally sufficient;
  2. Commonality – the excess interest rate charges is common and can be “uniformly determined” and the excess sums charges is a close decision, but for now the Plaintiffs meet this “low burden”;
  3. Typicality – The claims of Plaintiffs are typical of the claims of the class; and
  4. Adequate Representation – the Plaintiffs can adequately protect the interests of those they purport to represent, and the Court did not find any conflict of interest as argued by Defendant.

As for CAI, it’s possible for a RICO again, IF, the above criteria are met. Given the lack of involvement by HOA groups across the country, this is not going to happen.

How authoritarianism operates in an HOA

The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. 

CCHAL[1] argues be careful of   “’rules’ put in place in the name of ‘health and safety.’  Yes, some – but not all – may be necessary, but the pandemic creates an environment for putting in place some repressive rules too.” And reading the Golden Rain proposed rules, yes, in my opinion also, they are repressive.

 1. Pay a $500 deposit to get the ball rolling;

2. Apply for a permit at least three days before a planned protest;

3. Pick a maximum one-hour time slot during the day for the demonstration;

4. Ensure all participants social distance and stay out of roadways;

5. Plan on paying for any damage and cleanup costs;

6. Host protests only in an area bounded by three roads.

Proposed only rule 4 can be argued as in the interest of members health, safety and welfare as the GR CEO stated to the East Bay Times “This comes back to safety.”[2]  Rule 5 comes across as intimidation as this topic is already contained within the governing documents, and assumes violence will occur. According to the article, indicating another overly broad sweep at restrictions, GR’s intent was directed at dealing with protestors, as occurred in May in regard to BLM, yet the rules apply to any gathering of members. Rules 3 and 6 appear to be arbitrary restraint on free speech.

Rule 1 is punitive and is in violation of California law enacted in 2017, SB 407,[3] as pointed out by CCHAL. In general, the GR board/trustees seem to have ignored the law and cannot say that they didn’t know the law.

According to East Bay, “Golden Rain CEO Tim O’Keefe told the committee that the Davis Sterling Act doesn’t apply here because the foundation is a private organization, not a ‘common interest’ area like a homeowner’s association.”  That’s an unbelievable and irresponsible falsehood by the GF CEO!  In the 2017 directly involving Golden Rain, the appellate court held,

The court found that GRF is an ‘association’ subject to the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.) (the Davis-Stirling Act). fn. 1 We agree, and affirm.”  (Golden Rain Foundation v. Carol Franz, 163 Cal.App.4th 1141 (2008). (Plaintiffs were Leisure World members).

HOA members should understand that the common defense of BODs is “upon advice of attorney,” and in this case we hear that “the proposed rules had been reviewed by the organization’s attorney.”[4]  Are you aware of attorney rules of professional conduct?  You would be surprised what they have been getting away with as I inform readers in my post.[5]

Two things stand out in my mind, from years of studying and analyzing BOD motivations and defenses, many times supported by the HOA attorney’s opinion: these HOA boards/trustees are rogue BODs functioning with complete disregard of the laws.  HOA members BEWARE of your BOD and the opinions of its attorney!

Relevant sections of SB 407 include:

4515.  (a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.

(c) A member or resident of a common interest development shall not be required to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy, in order to use a common area . . . .

(d) A member or resident of a common interest development . . . may bring a civil or small claims court action to enjoin the enforcement of a governing document.  The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.

There is no legitimate justification for GF’s proposed rule changes except to assert its power and control over the members. In general, including GR, HOA boards are authoritarian and supported by too many members who are authoritarian followers.  In order to successfully deal with the unjust powers and authority of BODs,  the legislators, the public, and HOA members in particular  need to read and understand the social and political culture of HOAs. Visit my posts on authoritarianism in HOA-Land.[6]

References


[1] Marjorie Murray, email letter of July 26, 2020,  Center for California Homeowner Association Law (info@calhomelaw.org).

[2] Annie Sciacca, “Want to protest at Rossmoor? Schedule it during business hours,” East Bay Times, July 10, 2020.  

[3] Chapter 236, California Revised Code (2017), SB 407. http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB407

[4] Id.

[5] See my post,  A lesson in professional conduct for HOA attorneys (2020).

[6] George K. Staropoli, HOAs undermine principles of democratic America (2020); Authoritarianism in the HOA-Land Nation (2020).

 

Authoritarianism in the HOA-Land Nation

“There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.[1]

The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. 

There are some people [authoritarian followers] for whom the system of checks and balances are bothersome and annoying, and dislike the noise and chaos of democracy”.[2]  

“People who score high in authoritarianism, when they feel threatened, look for strong leaders who promise to take whatever action necessary to protect them from outsiders and prevent the changes they fear.”[3]

The HOA is truly a totalitarian democracy.

“A totalitarian democracy . . . retains full power of . . .  the right of control over everything and everyone. Maintenance of such power, in the absence of full support of the citizenry, requires the forceful suppression of any dissenting element except what the government purposely permits or organizes.”[4]

The authoritarianism of HOA-Land [5] is masked by a thorough indoctrination[6] that the real estate subdivision is a democratic community because the members are allowed to vote, as meaningless as it is. It seems that the more predisposed to authoritarian control the more the member acts as a diehard, dogmatic, true-believer in the BOD.

In 2019  I conducted a limited study on authoritarian followers in HOAs following the stablished research procedures[7] to determine the extent of authoritarianism in the HOA  setting.[8]  I found that,

“High RWA followers can be found in HOA members. My concern focused on the blind, to me, acquiescence to whatever the BOD told the members what it wanted approved, especially when it involved amendments to the governing documents. When presented with hard, concrete evidence of violations of the law or governing documents, the majority of the members just gave the BOD a blank check.”

The above chart (responses to 30 questions)  shows the degree of authoritarianism based on percentages: the higher, the stronger the authoritarian presence. “3Q” reflects HOA responses to 3 strict “control” preference questions in the survey, as a BOD member or not. The middle 2 bars reflect all the results from all HOA respondents and the lower 2 reflect HOA members or not – the public. 

The prevalence of authoritarian followers is clearly indicated with respect to the HOA’s “enforcement” attitude. The authoritarian culture of HOA-Land contributes to the decline in American democracy. “[Authoritarians] seek to . . . rewrite social contracts, and, sometimes, to alter the rule of democracy so they never lose power. Alexander Hamilton warned against them.”[9]

This study on HOA-Land authoritarianism is consistent with research findings with respect to the general public and political leanings.[10]  “[Authoritarians] understand their role, which is to defend the leaders, however dishonest their statement, however great their corruption, and however disastrous their impact on ordinary people and institutions.”[11]

References


[1] Verdict” email from Justia.

[2] Anne Applebaum, Twilight of Democracy: The Seductive Lure of Authoritarianism, Doubleday (2020).

[3] Amanda Taub, “The rise of American authoritarianism,” Vox (March 1, 2016).

[4] George K. Staropoli, “HOA political dynamics: totalitarian democracy,” The HOA-Land Nation Within America, StarMan Publishing (2019). J. L. Talmon quote.

[5] Authoritarianism: favoring complete obedience or subjection to authority as opposed to individual freedom..

[6] CAI’s effect on the BOD, the members — especially the loyal “followers” — and the public in general stems from 45 years of indoctrination by means of the CAI School of HOA Governance. See in general, Restructuring HOAs: “CAI School and member benefits” pt. 2 (2020).

[7] Bob Altemeyer, The Authoritarians, 2007.

[8] George K. Staropoli, “Preliminary HOA – public survey report,” HOA Constitutional Government (2019). Links to detailed report.

[9] Supra, n.2, p. 20.

[10] Supra, n. 3.

[11] Supra, n. 2., p. 25.

HOAs undermine principles of democratic America

The immediate reaction to the title of this editorial comment from the vast majority of readers, is as I suspect,

Unbelievable, wild statement; No way; I love my HOA; the volunteers work for the community; the board of directors has my interests at heart; I can vote for the directors and on other matters, And anyway, I really don’t care, I’m happy with the amenities, facilities, and protection of my property value.

This blindness toward compliance with the US Constitution and the laws of the land can be traced to the culture of the HOA-Land Nation as I presented in Part 1 of The HOA-Land Nation Within America. As for the false argument that because members can vote for a board of directors makes the HOA democratic, ignores the reality of Cuba, China, Russia, North Korea and other countries where people can also vote for their leaders.  Voting alone does not make a democracy.

Other aspects of the HOA model of government that illustrate departures from public government, the Constitution and laws of the land can be found in the HOA-Land Nation publication: lack of oversight protections and the absence of a separation of powers, especially there is no independent judicial function for fair hearings; an absence of meaningful  penalties against acts of the Board amounting to absolute immunity; and inadequate fair election procedures as found in public elections.

In all practicality, the HOA private government is based on a business model and not a municipality model, and whoever described a business as being democratic?  As such, following the business model, the HOA is a one-party government; the party of the incumbents who control the selection of candidates, who can vote, and the election procedures designed to keep the establishment in power.

Here’s what Gandhi had to say about one-party governments and democracy. With the independence of India from British control in 1947, Mahatma Gandhi reflected on the dominance of the Indian National Congress Party over the newly formed government.

“[Gandhi] realized that a one-party system could actually be a no-party system, for when the government and party are one, the party is a rubber stamp and leads only to a fictitious existence.

‘Without free criticism and potent opposition, democracy dies.

‘Without political criticism and opposition, a nation’s intellect, culture and public morality stagnate; big men are purged and small men become kowtowing pygmies. The leaders surround themselves with cowards, sycophants and groveling yes-men whose automatic approval is misread as a tribute to greatness.’”

(The Life of Mahatma Gandhi, Louis Fischer, The Eaton Press, collector’s edition (1988, initially 1950).

The common culture within the HOA-Land Nation treats any criticism, any opposition, any independent thought not supported or approved by the board of directors as subversive. The members are inculcated into adopting and supporting this attitude and treat such views as harmful to the peace and harmony of the community.  Committees of members — opposing political parties – are attacked and treated with hostility. Free political speech and dissent is not tolerated.  

With 23% plus Americans living in HOA-Land, the HOA culture has had its effect on national, state and local politics; ignoring the Constitution and laws of the land are easily acceptable and do not constitute a problem for HOA members.