A choice for Americans: the US Constitution or authoritarian, private HOA government

Some 5 years ago I began writing that advocates must make fundamental constitutional principles the backbone of their arguments for HOA reforms.  Today, with the NJ Supreme Court opinion that HOAs are voluntarily and willfully agreed to private business contracts, a major blow has been struck against constitutional protections.   The court stated that these private contracts create benefits for the communal living nature of HOAs. The court also held that other methods and devices, namely the business judgment rule where the relationship between homeowners and boards is not one of citizen to elected representative as we are accustomed to with public government, but as business management to stockholder. 

Today, when other state legislators and courts adopt this decision, advocates will be facing even tougher challenges to fair and equal treatment under law, since the NJ court said that these rights can be given away without applying the judicial review doctrine of appropriate due process as required under constitutional law.  The court re-affirmed that private contracts relating to private HOA governance by means of restrictive covenants are off-limits to any government oversight or regulation. This legitimate exercise of police powers for the general welfare is characterized by CAI as government interference with the will of the people.  In other words, laws that regulate, restrict or prohibit certain acts in a contract, such as truth in lending, truth in advertising, fair housing, etc have no application with respect to HOA covenants, thus creating independent city-states or principalities with laws unto themselves only. In other words, the court asserted that equitable servitudes, covenant contracts, trump our Constitutional rights, thereby establishing a New America not of our Founding Fathers, but one superior in law to the US Constitution.

The doors are open for any person or organization seeking to escape being subjected to the US and state constitutions has been provided with a mechanism to avoid the laws of the land — form a planned community with an HOA government.  Covenants can restrict the use of the land beyond what we see with public zoning policies, and by some third-party, profit-seeking developer who is long gone after the development is complete.  With planned communities, there is no need for voting and approval of charters by the affected citizens, as required for incorporated villages, towns or for cities under state laws.  No, the “state”, now being the private HOA government, assisted and supported by the public government, dictates these laws of the land, which include defective democratic procedures and processes incapable of providing genuine democratic governance — the corporate business form of government.

Community Associations Institute, CAI, made its choice long ago, and has re-affirmed its position with respect to its opposition to the protection of homeowner fundamental rights and freedoms, and its opposition to the application of the US Constitution and Bill of Rights to HOAs.  CAI also actively supports and promotes the Uniform Common Interest Ownership, UCIOA, that has always lacked a bill of rights and other protections of homeowner rights.  In fact, UCIOA itself carries the recognition that these oppressive UCIOA laws sanctifying HOA covenants may be judged as an adhesion contract. Section 1-112 of the 1994 final model addresses how courts are to determine whether or not declarations are indeed adhesion contracts.

CAI repeatedly makes the misleading argument that “the voice of the people” constitutes the essential ingredient of our democracy. CAI president and attorney, Ronald Perl, comments on the Twin Rivers decision in a recent CAI eRelease that,

“with this decision, homeowners can continue to govern their own communities by mutual consent and continue to enjoy the self-determination and quality of life they have come to enjoy.”

History and our Founding Fathers realized the fallacy of the “will of the people” as the guiding principle of a democracy and established controls on our government making government responsible to the people.  That is why we have checks and balances, and a separation of powers, and a bill of rights.   The Preamble to the US Bill of Rights reads,

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

 None of these protections for the people against the power of government is present in HOA constitutions, those developer written CC&Rs.  While speaking of the will of the local community, CAI is the leading national organization promoting top-down state laws controlling and regulating how these so-called democratic local communities are to function.  Your CC&RS and state laws, especially the UCIOA model, are derived from the seminal publication on the mass marketing, legal status and defining structure of planned communities and HOAs — the 1964 Urban Land Institute’s Holmes Association Handbook, TB #50. 

It establishes not a democracy in action, but a private organization, secure from the constitutional restrictions imposed on public government, and imposes by means of state laws an authoritarian governance over what was once a free and independent people under our Constitution.  

The courts and legislatures are creating this New America by ignoring, reinterpreting and reinventing our constitution.  In an attempt to reassure the American people, the NJ Supreme Court wrote,


Finally, residents are protected under traditional principles of property law . . . One owning a tract of land may convey a portion of it, and by appropriate covenant or agreement may lawfully restrict the use of the part conveyed for the benefit of the unsold portion, providing that the nature of the restricted use is not contrary to principles of public policy. . . . that “[r]estrictions in a master deed” should be enforced “unless those provisions ‘are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right’”

 Still, in spite of all the above justifications, guarantees and assurances that homeowners are protected by our system of government, and by implication, the courts, the NJ Justices decided:


In applying the Schmid/Coalition multifaceted standard, the twin Rivers Homeowners’ Association’s policies, as set forth in its rules and regulations, do not violate the New Jersey constitutional guarantees of free expression.

Only the people can stop this authoritarian, regimented, communal form of living under HOA governments.  Wake up America and see the Emperor’s New Clothes for what they really are – a calculated scheme for a New America.

Published in: on July 27, 2007 at 6:39 am  Comments (2)  

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  1. […] [iv] See generally A choice for Americans: the US Constitution or authoritarian, private HOA government. […]

  2. I wholeheartedly agree with you.

    I live in a subdivision in Pickerington, Ohio. When I closed on my house, the deed I was given had a set of restrictions that did NOT provide for a HOA. However, there was a set that had previously been recorded, but in such a non-descriptive manner, that the title searchers overlooked it. Now, 16 years later, a professional HOA management company hired by the developer tells me that I have to belong.

    My title company has disappeared and I tracked to as far as New York, but have been told that they are “gone” whatever that means.

    This Professional company is chargeing $19,000 from this subdivision, but has not touched one thing for 2 years. Weeds are covering the tops of cars, the entrance is totally neglected. He never calls meetings with the homeowners, just sends invoices for the money once a year, then disappears.

    He is now threatening to file a lien and then foreclose on my house. I am 69 years old, live alone on a small retirement income and have no other resources other than the equity in my house. I also have MS and cannot work. I am worried sick over this and feel like I have been raped. I have no rights. It will cost me thousands to fight him and I have been told that I will probably lose because this state considers the filing alone of a restriction to be sufficient notice and therefore the “hidden” one would be found to apply. Even though it took 16 years for it to be found, and by the HOA at that.

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