A proposal for the "Muni-zation" of HOAs; Stop developers from granting private government charters

Why are private corporations permitted to “grant” private government charters to organizations that give the power to control and regulate the people within the territorial boundaries of the subdivision? The developers are creating political governments, sometimes as a requirement of a local government, as defined in Black’s Law Dictionary (when such powers are given to the HOA with respect to a territory, making it a political government for all intents and purposes).

What is the purpose of permitting and protecting such agreements through legislation that “sanctifies” these provisions in CC&RS? These CC&R “constitutional charters” that lack protection for the rightsfreedoms and liberties of homeowners living in these planned communities governed by HOAs. This is an issue of constitutionality, of the delegation of private governments unanswerable under the 14th Amendment. Let me offer this quote by Gillman in his The Constitution Besieged to help clarify this point:

“Specifically, it came to be determined, first, that laws that singled out specific groups or classes for special treatment would withstand constitutional scrutiny only if they could be justified as really related to the welfare of the community as a whole ? and were not seen as a corrupt attempts to use the powers of government to advance purely private interests; and second, that acts that interfered with an individual’s property or market liberty would be considered legitimate so long as they were not designed to advance interests of just certain groups or classes’?.

For the detailed proposal see MUNI-ZATION (PDF).

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Published in: on August 2, 2004 at 10:47 pm  Comments (12)  

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  1. […] [1] There are existing laws in every state that would enable HOA to maintain their unique relevance to the subdivision in terms of private rules and amenities, etc., but would return HOA to our American system of government.  However, that would mean CAI would lose much of its dominance and influence over HOAs. See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private governme…. […]

  2. […] As a reference, please see my 2004 Commentary, A proposal for the “Muni-zation” of HOAs; Stop developers from granting private governme…. […]

  3. […] The pro-HOA forces will immediately cry, “NO one will want to become a board member and the HOA will fail.” Well, I got news. Not too many members are rushing to become board members today, anyway. This bill requires the legislators to not only make a just and proper approval of the SB 1468, but to take a proper and just ethical and moral stand against authoritarian, undemocratic private governments that abuse the citizens of Arizona. Violations of the laws and our principles of democratic government cannot be allowed to continue! There are existing legal mechanisms today — just as there are mechanisms for HOAs to obtain public street variances, but HOAs prefer their independent principality status rather than be part of the greater community — that will maintain the perceived planned community benefits while holding the HOA government subject to the 14th Amendment as required of all government entities. (See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private governme…). […]

  4. […] The very structure of the Declaration of CC&Rs and the HOA-protective laws prevent substantive reform legislation from happening! The very structure of the HOA concept must be changed with a loud outcry from homeowners. As I pointed out in the past, there are existing statutes dealing with special taxing districts that can be used, with some minor changes, to subject the HOA to the Constitution while retaining the benefits of the subdivision “real estate package” of special laws, special taxes, and special amenities for those living within the taxing district — the current HOA.  (See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private governme…). […]

  5. […] The HOA supporters, including CAI, do not have clean hands! It’s well beyond time to stop this mockery of the Constitution and mockery that HOAs represent the true voice of the people. And, the state legislatures well know that there are existing statutes that permit “private communities” to exist yet be accountable to Constitutional public government as a state entity, and retain the perceived benefits of restricted amenities, “ordinances,” community “taxes,” etc. (See a Proposal for the Muni-zation of HOAs). […]

  6. […] It is also interesting to note the 16% response to rejecting the Agreement, but affirming the desire for protecting property values. Not presented here, but there are other means of providing for the HOA benefits that do not violate our principles of democratic government. One such proposed mechanism exists today, but the people have been conditioned to accept repressive private government over no public government with all its protections. (See my 2004, A proposal for the “Muni-zation” of HOAs; Stop developers from granting private governme…<. […]

  7. […] maybe, with their current defective legal scheme that HOAs should be allowed to fail. He avoids “muni-zation”, creating special HOA “taxing districts” as public entities, as an alternative. He does not […]

  8. […] See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private governme…. […]

  9. Hi–I love your work. I wanted to read the MUNI-ZATION (PDF). that you linked too but the link is broken–can you send it to me? thanks, Shelly

    ps we are working to save our property owners too: http://sites.google.com/site/hideawayvalley/home

  10. […] wish to come true! “    Ms. Berger, please see the following alternative with explanation: A proposal for the “Muni-zation” of HOAs; Stop developers from granting private governme… Part 1 – Is there an ideal HOA constitution? Part 2 – Is there an ideal HOA constitution?   […]

  11. […] that function outside the Constitution and its protections of individual rights.”  (See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private governme…). Namely, special tax districts and home rule statutes.   HOAs allow such a contradiction to the […]

  12. […] rule, is subject to state laws on the delegation of county responsibilities and obligations. (See A proposal for the ‘Muni-zation’ of HOAs; Stop developers from granting private governme…).   Or, if we as advocates  fail, the secession of the HOA from the county as Robert Nelson wrote […]


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