The Legitimacy of HOA Governance

“To prevent the blessings of liberty to ourselves and our posterity do ordain and establish these CC&R constitutions for HOAs”

[The following is based on Randy Barnett’s book, “Restoring the Lost Constitution”, and the 9th amendment. Just scale down from national level to the HOA community level — it’s the same principle at work.]

The 9th Amendment

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”.

What makes a government legitimate? What makes a law/rule legitimate? When is a person morally bound to obey a law/rule? He answers,

“A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority … constitutional legitimacy can even be seen as a product of procedural assurances that legal commands are not unjust”.”A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just”.

And he speaks of justice by explaining, “the founders’ view that ‘first come rights, and then comes the Constitution’. The rights that precede the formation of government they call ‘natural rights’ … For these are rights that the people possess before they form a government and therefore retain; they are not positive rights created by government”.”

Natural rights define a private domain within which persons may do as they please, provided their conduct does not encroach upon the rightful domain of others. As long as their actions remain within the rightful domain, other persons — including persons calling themselves government officials — should not interfere without a compelling justification”.

And, more directly relating to HOAs where homeowners are assumed to have given their unanimous consent to be governed by the HOA,”If there are some rights that cannot be waived or transferred even by the consent of the right-holders, then the unanimous consent regimes [supposedly HOAs], to be legitmate, must offer procedural assurances that these inalienable rights have been protected”.

In other words, these inalienable rights are independent of any form of government and that a legitimate government cannot take away or restricted. And this is why I cannot over emphasize the important of arguments based on fundamental principles of American government in our efforts to obtain justice.And this is our biggest problem in fighting HOA governance and its legitimacy over homeowners. This bypasses the important question of contractual consent.

Why shouldn’t HOAs be considered local governments?

While I can understand why CAI wishes to keep the current focus that HOAS are contractual and therefore not a government, I believe that any attempt to get equality and justice, cannot be accomplished by a private adhesion contract in favor of money making developers, without a bill of right and without the protection of the US Constitution.

CAI even admits that CC&RS can be judged as adhesion contracts by the courts (as prime designers of the UCIOA they included Section 1.112 that deals with what issues the courts may consider when deciding on the unconscionablility of CC&Rs). Anyone who has read the history of planned communites will immediately see that the intent was not to establish a better form of government leading to a higher degree of domestic tranquility or improved general welfare, but to put $$$ in the pockets of the real estate interests. Maybe that’s why there’s little support for a full written disclosure about living in an HOA.

Every state legislature has the power today to make this happen with a very simple bill. If this were to happen, as it should, we would not be seeing all these efforts at state legislatures to right unjust laws that support private organizations and that restrict the rights anf freedoms of citizens. And, CIA attorneys and management firms would cease to exist, or be subject to the oversight of state agencies as they should be.

Well, keeping it simple, here’s how Black’s Law Dictionary (6th Ed.) defines a government? Note: The term “political unit” means the same as a territory or area with boundaries; such as, country, state, province, county, city, town, village, district, etc. “politics”, the decison-making process of a group of people.

“That form of fundamental rules and principles by which a nation or state is governed, or by which individual members of a body politic are to regulate their social behavior”.”government by de facto: a government of fact, a body actually exercising power and control as opposed to the true and lawful government; a government NOT established according to the constitution”.

And, in Black’s discussion of the meaning of “state” [my emphasis],

“A state or political society is an association of human beings established for the attainment of certain ends by certain means ….What then is the difference between this and other forms of government? The difference is clearly one of function. The state must be defined by reference to such of its activities and purposes as are essential and characteristic”.

“Modern states are territorial; their governments exercise control over persons and things within their frontiers ….”

Planned communities are territorial, also. Their “citizens” must pay assessments and are subject to fines, penalties and loss of property if they fail to obey the “authorities”, the HOA board, and many times, the hired mercenaries, the HOA management firms. As for the legitimacy of the authority, the state receives it from the state constitution that was granted under the US Constitution. Citizens do not have to sign a document to be bound by these constitutions, but HOAs require a contract because they have no legal authority without the contract. This contract and its provisons, backed by statutes and court rulings, make the HOA a de facto government, a state actor. But, as presented above, definitely not a legitimate government where its members have an moral obligation to obey the rules and regulations.

Why shouldn’t HOAs be a local government under the American political system with its protection of our rights, freedoms and liberties? Isn’t that what Amnerica stands for?

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Published in: on September 2, 2004 at 11:02 pm  Comments (2)  

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  1. […] 1.       The Legitimacy of HOA Governance […]

  2. […] 2004 I wrote about The Legitimacy of HOA Governance, quoting the writings of constitutional scholar Randy […]


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