The Myth that HOA directors represent the interests of homeowners

  “Additionally, your use of the email distribution list to inform Cimarrone residents of the Website was in direct violation of the terms of use for the Cimarrone website operated by May Management. Accordingly, we demand that you cease the use of any emails acquired through the use of the e-mail distribution list or the email distribution list itself.”(“Boards fighting NOT-OFFICIAL Websites”,  

The attitude expressed above by HOA attorneys in Jan Bergemann’s Opinion — not only here but across the country — is to be expected once you realize that the fictitious person, the nonprofit, membership corporation HOA, is a legally separate entity from the homeowners who are subject to its domination.  The HOA is not at all like your municipal government that is elected to truly represent the interests of it resident-citizens.  

Since it is a corporation, the HOA board owes it fiduciary duties and responsibilities to the HOA, and not to the members.  The board takes its authority expressly from the authoritarian CC&Rs and bylaws that clearly state that the purpose of  the HOA is the maintenance of property values, and is devoid of any protection of homeowner rights or any objective to uphold your fundamental and constitutional rights.  These rights that are  protected by the US Bill of Rights and state constitution’s Declaration of Rights do not apply to the private HOA corporation.   

Essentially, the board functions as “management” and treats its member-owners as “employees”, and creates a division of goals and objectives as we see in typical management-labor disputes. It asserts a false argument that since the homeowner consented to the CC&Rs, it has consented to everything and all  things performed and enacted by the board as the representative of the homeowner.   

What homeowners need, and state legislatures have repeatedly ignored, are laws to protect homeowners as “residents” with bargaining powers and protections beyond the long gone, profit seeking business developer created CC&Rs adhesion contract.  These groups must have state protected bargaining powers equivalent to professional associations like nurses, airline pilots, etc. 

Now, some large, multi-level associations may call their board members from individual constituent associations “representatives”, but their legal obligations are to represent the individual association’s interests and not the interests on the constituent association’s members.  They, too, do not represent homeowners in the same manner as an elected public representative.  HOAs are not democracies because the homeowner is allowed limited voting rights; China and Cuba also allow limited voting rights.

Published in: on June 13, 2007 at 8:27 am  Leave a Comment  

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