CAI maintains HOAs are protected by and do not violate the Constitution — not so!

Much to my surprise and astonishment I stumbled upon CAI’s press release on its website.[1] It informs the reader that all is well with the HOA legal scheme and there are no waivers of constitutional rights or other constitutionality problems. In fact, CAI claims that the Constitution protects the CC&Rs’ contract.

Contrary to conventional wisdom, Americans do not waive their constitutional rights when they move into a community association. In fact, courts have found that community association residents, by enacting reasonable rules for their own communities, are actually exercising their constitutional rights of association, contract, expression and assembly. . . . By purchasing homes in association-governed communities, buyers enter into constitutionally protected agreements with their neighbors.

The U.S. Constitution gives community association residents the right to govern their own communities without the need to get government’s permission to adopt rules. This prerogative is at the core of individual property rights and is a tradition that dates to the very founding of our nation.

I am not surprised at CAI’s failure to mention yours truly by name, the only outspoken advocate on HOA constitutional violations[2] that emphatically objects to and challenges CAI’s simplified arguments that misrepresent the law.


First paragraph fallacies:

Apparently agreeing to  free speech restrictions on displaying signs or flying the flag and due process protections are not considered a waiver or surrender of rights by CAI. CAI’s position that the right to associate and to enter into private contracts is protected by the Constitution is a false and naïve argument. Can you and I privately agree to violate the Constitution, and to associate in community where its government is not subject to the same restrictions as public government?

There are conditions for a voluntary waiver and surrender of constitutional rights that the CC&Rs agreement fails to meet, especially when it comes to implied waivers — those not specifically stated. But somehow the courts enforce the CC&Rs as if they met the requirements for constitutional waivers, like the Twin Rivers[3] case that CAI is relying on. CAI doesn’t mention its amicus curiae that argued In the context of community associations, the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) raises the likelihood that judicial intervention will become the norm . . . .” If no rights were waived, why then is CAI so concerned about restoring them?

I have raised the valid argument of misrepresentation in the selling process and that the buyer was misled and not fully informed as to the consequences of his entering HOA-Land. No one, who firmly believes that HOAs are good for America, has stepped forward and publically signed the Homeowner Association Consent to be Governed Agreement: A Model Act[4] that a sign-off of explicit waivers and surrenders of constitutional rights (in paragraph 3), including a waiver of the equal protection of the laws.

Second paragraph fallacies

I explain in “HOAs violate local home rule doctrine” (see note 2 below) that HOAs are allowed operate far beyond state laws relating to home rule statutes, granting HOAs independent political government powers are denied to legitimate home rule communities. Consequently, HOAs are being treated with special laws for special entities in violation of the Constitution, federal and state.

The question that I have raised, and ignored by CAI in its release and in other communications, is summed up in the following statement: “The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.” In essence, HOAs have been allowed to operate outside the Constitution as authoritarian independent principalities, violating the fundamental principles and values underlying our American way of life.

While CAI publicizes its claims to be working for productive, healthy and desirable communities, it is apparent that these communities are not part the American system of democratic government. It advertises that it is an educational organization, yet conducts surveys to promote its view of what is good for HOA-Land.


[1] sourcedoc=/PressReleases/Media%20Statements/Homeowners%20and%20Constitutional%20Rights.doc&action=default. October 7, 2015. (I don’t know how long this has been there, but CAI has revised its website recently.)

[2] See in general, CC&Rs are a devise for de facto HOA governments to escape constitutional government; Unconstitutional delegation of power to HOAs; HOAs violate local home rule doctrine and are outlaw governments.

[3] CBTW v. Twin Rivers, 929 A.2d 1060 (2007).

[4] An example: “d). I understand that the association, as a private entity and not an arm of the state, is not subject to the restrictions and prohibitions of the 14th Amendment to the US Constitution that otherwise protects the rights of the people against actions by public government entities; (g) that there are no equivalent clean or fair elections procedures to protect the integrity of the HOA election process as found in public government elections.

HOA vs public government

Ever wonder what would happen if your town/city council did not have enough public minded citizens to run for office?  You know, like what we see in many HOAs?

While I’m not sure, several scenarios are possible.  A small clique would soon dominate the council and the shortage of councilmen ignored.  Or, the state would be asked to get involved either by citizens unhappy with the ruling click, or vendors concerned about the legitimacy of contracts would seek protection.

In HOA-Land who would be able to step in and restore order and a just government?  Not the state since the HOA is not a state subdivision.   Could be the vendors who are mainly the lawyers and managers.  Not likely. After all, it is they who control the HOAS “council.” They like it just this way, because, as we see in the governing documents and state laws, they are a privileged class. Not the board composed of the clique and perhaps “conscripted” directors – those bodies urged to become a director to satisfy the CC&R and who remain silent and acquiesce to the president’s wishes.

I hope readers begin to realize that the dogmatic cry of “no government interference” got just what they asked for – complete independence and on their own. HOA-Land private government requires a higher degree of public involvement than found in the nation as a whole – an insurmountable barrier.

However, some disgruntled member can file a request to the court to appoint a receiver who will manage the HOA – and get paid for it — as it is quite evident that the members are incapable of governing their HOA. Now, he would have his orders from the court and that would not include the irrational lament promoted by the CAI lawyers and managers that it ain’t fair to the “good” members.  Well, it is fair in terms of the fact that it is the failure of the members to participate that makes them guilty of the failure to manage their HOA.  Oh, you thought you were just buying a home and management of the HOA was someone else’s problem.  SURPRISE!

In my opinion, HOAs as a state entity bring more protection than the private and adhesive CC&Rs “contract.”  Understand that turning to the 42 year-old national educational entity, as several states and towns have, that has failed all these years to fix HOA problems is irresponsible and lunacy pure and simple.  As a state entity you have bodies of statutes and common law, and traditions and precedent that serve to protect citizens as opposed to the Johnny come lately, make new law on the fly by courts. New laws that interpret your “contract” in many unexpected ways that do not serve individual rights and interests because the HOA is a private entity.

Published in: on September 30, 2015 at 9:53 am  Comments (4)  
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Fight for your rights lost in HOA-Land

Amazon review of HOA WARRIOR II: Responding to Pets, Paint, & Parking in Your HOA

Author and advocate Shelly Marshall joins a number of other homeowner rights advocates challenging the misinformation about the real lives of HOA members: Jill Schweitzer (Buying into an HOA with your eyes wide open!), Ward Lucas (Neighbors at War!), Sara Benson (Escaping Condo Jail), and yours truly, George K Staropoli (HOA Common Sense: rejecting private government). There is also extensive material from Deborah Goonan on internet blogs.

Marshall presents reality, and not the propaganda of the special interests supported by your state legislature for the good of the state. “Responding to pets . . .” is an opener to the more serious issues of HOA private regimes. She writes,

“And you have to worry that even though there are laws in place to protect you, there is absolutely no way to enforce those laws except to sue in court. The attorney general of your state and your local law enforcement will most likely call it a “civil” matter, yet HOA disputes are anything but civil. There are precious few agencies that can help you, and so you must learn to protect yourself.”


With the above understanding, and until substantive HOA reforms resolve the basic fundamental flaws of the HOA legal scheme, Marshall presents an approach to put the odds in your favor when dealing with your HOA. These are needed to help owners survive under HOA oppression and repression.

Many other “help you” books, especially those written by the special interests and their loyal and faithful followers, present what is essentially a “Never Question the Rules” (From the TV series, Wayward Pines) or board, and life will be dandy. You just have to resign yourself to secondhand citizenship. The courts have held that you, the homeowner, agreed to be treated as such.

The paraphrased Wayward rules, quite applicable to HOA-Land, go on to say,

  1. Enjoy Your Life In [your HOA]!
  2. Be Happy!
  3. . . .
  4. Do Not Discuss the Past!
  5. Do Not Discuss Your Life Before

“Never Question the Rules!”   Never!  Not so says Marshall.  Not so!

Read this highly informative book . . . today.

Published in: on September 1, 2015 at 12:19 pm  Comments (2)  

Protecting HOA political free speech on matters of general community interest

Should matters of concern and interest to the general HOA member-community be protected from suits designed to stifle participation in HOA governance?  Homeowners in HOAs should be protected from these suits, called SLAPP suits, just as the general public is protected in most states that have anti-SLAPP laws.

The question becomes: will the courts hold issues of HOA governance to be a matter of general public interest and concern?  A failure of the courts to do so puts HOA governments solidly into the category of independent principalities, where members are not permitted free speech on community public issues, especially about their governing body, the HOA.

The expected defenses are 1) that HOAs are private, contractual governing bodies not subject to the 14th Amendment protections, which the members have agreed to obey; and disregarding the Ruiz opinion above,  2) the local HOA community cannot be considered as a public body that is interested in and concerned with matters of public interest; it’s a local, private matter.

There are several California cases holding that HOA concerns amount to public speech because it affects the community at large.  The following are anti-SLAPP suits.

“A SLAPP suit (strategic lawsuit against public participation) is a lawsuit brought primarily to chill a party’s constitutional right of petition or free speech. The anti-SLAPP statute was enacted to prevent and deter lawsuits that chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances and provides “an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims” arising from the exercise of those constitutional rights. . . . . The resident’s front lawn is a public forum for purposes of the First Amendment. . . . Moreover, it is now well established that the anti-SLAPP statute protects private conversations as well as those occurring in a public forum.” (Santa Barbara).

“’Public interest’ within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters,  ‘private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.’ (Ruiz; according to California statutes).

[My emphasis]

“[W]e hold the trial court properly determined the anti-SLAPP statute applied because the evidence showed the alleged defamatory statements were made “in a place open to the public or in a public forum” and concerned “an issue of public interest. . . .  The two locations where the alleged defamatory statements were made–at the Board meetings and in the Village Voice newsletter [HOA] –were open to the public and constituted “public forums.” Additionally, because each of the allegedly defamatory statements concerned [*11] the manner in which a large residential community would be governed, they concerned “issue[s] of public interest.”  (Damon).

A homeowners association board is in effect ‘a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government’ (citing Cohen v. Kite Hill Community Assn).”  (Damon).

My quick survey of state anti-SLAPP laws shows AZ, IL, HI, GA and MD as having strict laws relating to only issues before the legislature or a law, as petitioning rights.  A host of other states contain the much broader right to file an anti-SLAPP suit for issues of public interest. They are: CA, FL (as of 7/2015), IN, LA, OR, RI, TX, VT, and WA.  Check current status.

Case references:

  1. Santa Barbara Beach Club HOA v. Freeman, 2d Civil No. B212972 (Cal. App. 2nd 2010)
  2. Ruiz v. Harbor View CA, 37 Cal.Rptr.3d 133 (2005)
  3. Damon v. Ocean Hills [an HOA], 102 Cal.Rptr.2d 205 (2000)

representing yourself in court against HOAs

An excellent post in the August 15, 2015 L.A. Times column, Associations, by Donie Vanitzian, and co-written by attorney Zachery Levine, contains important information on HOA litigation.  Please read it and see what you are up against, and what is needed to have a chance at winning in court.  Thanks Donie for all your good work.

An excerpt:

Success in litigation is based on legal knowledge, resources and organization. Deadlines arise frequently, necessitating quick and timely responses. You are responsible for monitoring what the other side is doing and filing. You must know all applicable deadlines for your case and how to calendar them.

Good luck.

Published in: on August 15, 2015 at 9:34 am  Comments (3)  
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