The Two Americas: Constitutional America and HOA-Land

On this Memorial Day, May 30, 2016, America is fighting battles in a number of countries where our sons and daughter and our brothers and sisters have paid the ultimate price defending the United States of America, and the democratic values and beliefs of justice and equality for which it stands.

Yet, we have those in America firmly believing that the Constitution protects free speech, but not when private contracts are involved. And they support private agreements called Declaration of Covenants, Conditions and Restrictions (CC&Rs) that cross over the line between purely property restrictions to establishing unregulated and authoritarian private governments. Florida attorney Ryan Poliakoff (brother of the late CAI activist attorney Gary Poliakoff) is one of them. These HOAs (an all-inclusive term) operate outside our constitutional system of government.

In his May 28th column on Florida Today, he asks and answers the title question, “Did you sign away your free speech with HOA?[1]  with a firm YES.   Why and for what system of government are our troops fighting and dying for?  For the America of our Founding Fathers or for the misguided special interests who have a financial interest in HOA-Land, and who act and function as an oppressive oligarchy. (It is estimated that 20% – 23% of Americans live under HOA private governments). In our case, it means rule by the few special interests who lobby nationwide for pro-HOA legislation to protect the status quo.

I’m shocked at Mr. Poliakoff’s biased and simplified explanation and justification for HOA private governments; after all, he is a lawyer and dares speak of The Bill of Rights. He writes,

Private entities have no obligation to respect your right to say whatever you want, no matter how offensive it may be. . . . So if the rights and obligations of a mandatory membership community are contractual, and not municipal, shouldn’t they be allowed to restrict speech?

The most blatant misrepresentation of the facts occurs when he argues (emphasis added),

Personally, I agree with the majority position. I see no reason that persons who voluntarily bind themselves by, knowingly, buying property subject to restrictions should not be bound by those restrictions (unless the state passes laws that expressly limit the association’s power, such as the condominium laws that protect owners’ right to assemble, or the federal laws that guarantee every person the right to fly an American flag.)

Otherwise, I view deed-restricted communities as guided and governed by contracts, and I believe they should be treated, generally, the same as any private contract between individuals.

I vehemently object to these misleading statements by an attorney!  Apparently he has failed to read, or refuses to rebut, arguments that I raise with respect to 1) alleged agreement to a contract,[2] 2) HOAs as de facto governments hiding behind the privacy of the questionable CC&Rs contract,[3] and 3) the application of US Supreme Court criteria for a bona fide surrender/waiver of constitutional rights, including due process and he equal protection of the laws, which the HOA legal scheme fails miserably.

Furthermore, he should well know that the alleged contract is not between individuals or other HOA members, but between the HOA and the individual owner. Yet, he admits, by implication, that all HOA reform legislation is an attempt to restore lost rights, rights that belong to all Americans.

Mr. Poliakoff also informs his readers that he co-authored the 2009 book, New Neighborhoods[4] that contains the very same attitude and view towards independent HOA principalities as professed in this article.  In my Amazon book review I wrote (emphasis added),

Ellen Hirsch de Haan, former CAI president, acknowledges that the biggest problem for the successful operations of these associations “is the lack of education among the consumers who are buying homes and units . . . . And the authors inform their readers that, “These neighborhoods could not operate without . . . the owners, who give up certain traditional homeowner rights for the good of the community.” “This is good”.

“The Poliakoff’s continue, informing their readers that “out of anarchy came utopia“, and quote an appellate court dicta that “each owner must give up a certain degree of freedom of choice which he might otherwise enjoy living in a separate, privately owned property.” The authors define the purpose of this book as, explaining “the workings of these communities — these New Neighborhoods — . . . and to let purchasers know just what they are getting into.”

I believe that Mr. Polikoff has failed miserably to fully educate the legislators, the media and the home buyers in both his book and in his recent article, both of which present the special interest “party line” and not the facts, the whole facts, and nothing but the facts.

This is not new or unique to Mr. Poliakoff.  CAI has recently released a series of white papers, which I collectively refer to as the CAI Manifesto.[5]    Kelly Richardson, national CAI Trustee and Realtor wrote about socialistic housing and submitting to the will of the community because, allegedly, that buyers had openly agreed to the surrender of their rights.

That’s the root of so many of the HOA horror stories we’ve all heard, as owners normally do not realize that their submission to the will of their new community is accomplished by the automatic application of covenants running with the residence. . . . The most caustic critics of HOAs in general are actually opposed to the concept of joint ownership. This is a completely unrealistic position . . .[6]

 

 

The positions taken in support of HOA-Land, as evidenced above, a political as any recognized movement that consists of separate and disparate collection of private governments not subject to the constitution because of a “verboten,” hands-off attitude, has created 2 Americas.   The divide is just a  dangerous as a country divided over political philosophy as witnessed in our current political campaign.  It must not be allowed to continue regardless of what party or person will sit in the White House.

References

[1] Did you sign away your free speech with HOA, FloridaToday (USA Today), Ryan Poliakoff , May 28, 2016.

[2] Consent to be governed, No. 4 of HOA Common Sense: rejecting private government.

[3] HOA Governments in fact, No. 9, Id. See also, CC&Rs are a devise for de facto HOA governments to escape constitutional government.

[4] New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.

[5]  CAI manifesto: CAI’s plan for HOA-Land in America;  See also, Deborah Goonan’s  critique in “HOA laws and Free Speech, Right to Know”.

[6] Realtor magazine publishes HOA socialism by CAI Trustee, quoting A Note of Caution About HOAs, RealtorMag, Official Magazine of the National Association of Realtors, February 2015.

Published in: on May 30, 2016 at 10:10 am  Comments (1)  

Realtor magazine recognizes need to disclose HOA problems

In the May 24th article with respect to not paying HOA dues in NAR’s Realtor.com magazine (see note 1), subtitled “Can this happen to you,” the author advises readers and Realtors, in part,

 If this story has you viewing HOAs in a harsh (and terrifying) new light, we don’t blame you. And while the laws vary by state, it turns out that in most cases, HOAs really do have the power to foreclose on your home for unpaid dues, as do condo owners associations.

Is the national Realtor organization realizing that it has a responsibility and obligation regarding disclosure of facts about HOA life?  I know that there may be cop-out laws saying that the real estate agent shouldn’t talk about things they don’t know.  Is that why state Realtor organizations and cooperating real estate departments intentionally fail to provide the facts about HOA life in the mandated educational classes and continuing classes?   I say “facts” because it is common knowledge that there are serious defects with the HOA legal scheme that even rise to questions of constitutionality.

 I ask, “What was done prior to the sale to inform the buyer of HOA negatives in keeping with the law regarding dealing fairly with all parties?”   Very, very little.  It’s disgraceful!  The regulation of real estate agents is not to protect the agents, as is easily concluded from the positions taken by state real estate departments, but the consumers.

This point of view may be distasteful to the many agents who are honest and have the highest integrity, but it’s a failure of the real estate industry’s leadership to perform and protect the consumer.  (I was a licensed agent for over 10 years.)

 

Note 1.  “Homeowner Evicted for Not Paying HOA Dues: Can This Happen to You?”, Judy Dutton, Realtor.com, May 24, 2016 (http://www.realtor.com/news/trends/evicted-for-not-paying-hoa-dues/).

Published in: on May 25, 2016 at 7:37 am  Comments (5)  

Realtor magazine publishes HOA socialism by CAI Trustee

Realtor Kelly G. Richardson advances a socialistic and authoritarian view of HOAs in the national Realtor magazine.[1]

“Many owners do not recognize that the benefits of shared ownership involve relinquishing some of the independence of sole ownership. That’s the root of so many of the HOA horror stories we’ve all heard, as owners normally do not realize that their submission to the will of their new community is accomplished by the automatic application of covenants running with the residence.

“HOA living is not suited for those unwilling to cooperate with the community. The most caustic critics of HOAs in general are actually opposed to the concept of joint ownership. This is a completely unrealistic position . . .”

His backgrounder paragraph does not mention his position as a national Trustee of CAI, the national lobbying organization promoting HOAs. CAI leads readers/viewers to believe that it is still an educational organization when in reality it is a business trade group that functions to support, not the HOA or its members, but CAI attorney and management members.  Mr. Richardson is also an attorney.

From his web page.

 

Mr. Richardson is a leading advocate for the Community Associations Institute (CAI) and is currently serving as National Trustee for a second consecutive term. As an active member, he has served on the Greater Los Angeles Chapter Board for more than six years and was its 2004 Chapter President. He was also the recipient of CAI’s 2004 National “Rising Star” award. He is presently a member of the Board of CAI’s Orange County Chapter.[2]

 

I am greatly disturbed by NAR’s failure to disclose Mr. Richardson’s personal agenda as an active supporter and member of the CAI governing body.  NAR, that advertises that the public can rely on its Realtors to do right by them, needs to take steps to responsibly inform its readers about HOA-Land.

Learn more about CAI’s failure to educate the legislators, the media, and the home buyers with respect to a loss of their rights under an adhesion contract, the CC&Rs, and under pro-HOA laws.  Learn about the denial of the equal protection of the laws and due process protection.[3]

References

[1] A Note of Caution About HOAs, RealtorMag, Official Magazine of the National Association of Realtors, February 2015.

[2] Kelly G. Richardson, https://rhopc.com/professionals/kelly-g-richardson/.

[3] HOA Common Sense: rejecting private government, HOA Constitutional Government. (2013).

Published in: on May 21, 2016 at 12:05 pm  Comments (5)  

AB 1799 (CA) mandates boards to set who can vote

In my HOA Common Sense: rejecting private government pamphlet, No. 5, Democratic Elections, I argue that the adhesion contract CC&Rs presents defective and unfair election procedures, if any.  Last month Frank Askin, hero of the Twin Rivers (NJ) free speech case and Director of the Rutgers Constitutional Rights Clinic, wrote the chair of the California Assembly Housing Committee opposing the proposed election requirements in AB 1799.  (Thanks to the California advocacy group, CCHAL, for posting the letter).

His legal-eagle eye uncovered a provision that allowed the HOA board to easily undo all and any of the proposed election requirements that favored fair and just elections.  AB 1799 gave the HOA the power to declare elections as uncontested, setting forth adherence to Sec. 5105 and giving the appearance of member protections.  But, section 5105 (a)(8) was added that based voting rights on “members in good standing.”   Section 5105(a) begins with, “An association shall adopt rules . . . ” and subsection (8) is one rule.  “Shallis a mandatory requirement.

Nothing in the Legislative Counsel statement at the head of the bill made mention of a new restriction dealing with members in good standing.  (This summary is used as a ‘quick read’ by legislators and rules are strict about proper and adequate notice of changes.)

According to the  CAI stalwart firm of  Adams-Stirling (Davis-Stirling.com), ‘good standing’ is not defined in the Davis-Stirling Act, but generally means “a member who is current in the payment of their assessments and not in violation of the governing documents”  (emphasis added).

So, here we go again.  What you see is what you don’t get!  The board can declare any election uncontested by finding  members to be in violation and preventing them voting or being a candidate.  (Politicians are good in giving the appearance of propriety and fairness).

It is very important for all concerned homeowners to note  how state laws mimic and duplicate these private CC&Rs and legitimize them – now, it’s the law!  Ask yourself, why aren’t the CC&Rs document subject to state approval with mandated restrictions and conditions as found in the Constitution and Bill of Rights?  Why not, indeed!

Published in: on May 9, 2016 at 11:00 am  Comments (1)  

CAI manifesto: CAI’s plan for HOA-Land in America

For those who took the time to read all four of these white papers[1] — that I collectively interpret as the CAI Manifesto — what should stand out is the absence of any discussion of HOAs as de facto private governments, as de facto political entities, or as quasi or mini governments both of which imply a political entity.  The reason why the authors of these papers, the elitist would be Philosopher Kings, cannot address the question of violations of the Constitution is that they would be “Defending the Indefensible.”

So, as expected of politically motivated actors, ignoring the controversy makes it go away, especially when there’s only one voice of any merit and strength.  Facts that are inconsistent with the views of CAI are dogmatically dismissed and ignored. And to this end CAI has been very successful with respect to state legislatures and the cooperating media.

“For more than 40 years, CAI has educated, advocated, published and informed people living and working in common-interest communities. Thanks to those ongoing efforts, we have a strong and valuable understanding of community associations today.”[2]

CAI will use these papers to further indoctrinate the legislators, the media and the public that CAI is the only competent, informed, knowledgeable, educational and credentialed organization with 40 years’ experience to conduct HOA affairs and to deal with HOA issues.  “Homeowner rights advocates” are ignored and dismissed as an opposition movement.  Instead, following the lead of Arizona Rep. Ugenti who in 2013 made the following statement to the Arizona Government Committee:

Ugenti stated that each year there was “a plethora of personal HOA legislation” and tried “to spare the [committee] members the constant agony of many personal pieces of HOA legislation,” as contrasted to the industry legislation. (See video of Ugenti speech here https://youtu.be/REt_TJD-6UQ).

CAI speaks only of “individual constituents” and “isolated incidents” that do not measure up to a policy that the legislature could act on[3] (my emphasis):

 Lawmakers have been, and will continue to be, called upon to address concerns expressed by individual constituents who share an isolated incident that has made them unhappy with their community associations. In an effort to help constituents, lawmakers may introduce legislation addressing association governance that may increase and undermine the well-established and proven model of community association governance.

This trend is expected to continue as long as a legislative response is considered necessary to respond to negative perceptions produced by media out of lone circumstances. Legislative responses to individual constituents contribute to community associations being perceived as over-restrictive micro-governments focused on covenant enforcement. This perception may accelerate legislative efforts aimed at greater oversight of community association governance and require greater transparency.

They make an accurate assessment of conditions. This failure to present a unified national voice backed by credential authorities will continue to persist into the future.  If you stop CAI Central, you destroy all local CAI state chapters’ reason for being. They become just another self-serving special interest.

These papers also contain CAI attempts to influence other dominant organizations like AARP and NAR (National Assoc. of Realtors).[4]  Furthermore, CAI calls for not only influencing legislatures, but the judges, too.[5]

 In May 2006 I wrote (see p. 20, Conclusions, in Nationwide Lobbyist for Principalities):

In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors, on local community governance through the adoption of uniform planned community acts that perpetuate the current anti-American HOA governments. In effect, the super, privatized agency to replace the US Constitutional system of government.

References

[1] Links to these papers can be found on the CAI web page, Community Next: 2020 and Beyond (May 5, 2016).  “A manifesto is a public declaration of intentions, opinions, objectives, or motives, as one issued by a government, sovereign, or organization.”  “A white paper is an authoritative report or guide that informs readers concisely about a complex issue and presents the issuing body’s philosophy on the matter. It is meant to help readers understand an issue, solve a problem, or make a decision.”

[2] Id

[3] Supra, public policy link, p. 6.

[4] Supra. n. 1, external influences link, p. 4-5.

[5] Id, p. 13-14.

Published in: on May 5, 2016 at 9:48 am  Comments (7)  
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