I’m coming closer to the realization that the “battle” has been, and will continue to be, centered on the decay and erosion of private property rights versus the communal objective to maintain property values in homeowners associations. The above reflects public policy and the decision that maintaining property values outweighs your private property rights.

The industry lobbyists have succeeded in convincing the public that planned communities are the only way to go and that the undemocratic, corporate form of HOA governance is necessary to achieve that goal. They are right, because HOAs would not be able to get away with their present actions if they came under the municipal government laws! This has been said by others more qualified that I — McKenzie, Dilger, Barton & Silverman, to name a few. Any genuine democratic governance with its protections of homeowner rights would not allow for arbitrary and capricious decisions of HOA boards or for the circumvention of constitutional protections that trespass on those values that made America great.

“Communal” is the correct term – for the greater glory of the state, or community in our case. And with the equivalent of “state laws” that promote property values over our unalienable rights and freedoms, comes the inclusion of the neighborhood “thought police” enforcers who report back to the communal government about the rotten or nonconforming attitudes of homeowners, who are then subjected to scorn, ridicule and harassment by the HOA government press – the letters from the president and the association newsletters.

I wrote a few months ago about the myth of private property rights in an HOA. They have been emasculated by those nonnegotiable restrictive covenants to become almost meaningless. Today, and upheld many times in the courts under covenants running with the land, written by short-term profit seeking developers, the communal interest rises above your unalienable rights.

The public must take a good look at the meaning of private property rights. When the courts, through their rulings, make it clear that the homeowner just about surrenders most of those cherished rights that permit the classification of “private property”. Prof. Askin, of the Rutgers University Constitutional Law Clinic, in his appeal of the Twin Rivers (NJ) HOA decision, argues against this view that holds common law over constitutional law,

“Twin Rivers must be recognized as a constitutional actor under the state Constitution required to accommodate the rights of its residents/members to exercise the fundamental prerogatives of citizenship in the operation and governance of the community. Twin Rivers homeowners do not waive their constitutional rights by signing contracts containing non-negotiable deed restrictions. This argument [that homeowners voluntarily waived their constitutional rights] ignores the doctrine of ‘constitutional conditions’, which forbids a constitutional actor such as Twin Rivers from conditioning a right to own property on a waiver of constitutional rights.”

There can be peace in the valley. Planned communities with their private “ordinances” and private amenities for “members only” can exist within the framework of special taxing districts. These districts can easily come into existence by reclassifying, in furtherance of legitimate government ends, existing associations and holding them to be municipal entities under the existing state laws. As we proudly proclaim ourselves to be a nation of laws, all communities will now be subject to the same laws of the land and these private ”constitutions” will be eliminated.

Published in: on January 6, 2005 at 1:19 am  Leave a Comment  

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