Homeowner Associations: ex post facto amendments, consent to be governed, contracts to avoid the Constitution

 Excerpts . . .

Can individuals contract to establish a governing body that controls and regulates the people within a territory, and avoid adherence to the US Constitution, by means of a contract that is contrary to and ignores the state municipality laws?

 

How has this state of affairs come to be?  The HOA legal basis for the exclusion from the application of the 14th Amendment is the use of CC&Rs, the interpretation of CC&Rs as binding contracts — but not contracts of adhesion — and the equitable servitudes doctrine of “constructive notice”.  This legal basis to sidestep the Constitution raises serious questions regarding the unconstitutional surrender of fundamental rights.

 

Supporters of HOAs point to the general consent doctrine as applied to public governments:  if a person lives in the political jurisdiction, then he is assumed to have consented to be governed.  (Pro-HOA supporters apply this same rationale with regard to adhesion contract criticism: no one forced him to buy in HOA-land). If people buy into HOA-land, then, it is argued, they consent to be governed as if the HOA were indeed a public entity and not subject to the restrictions of contract laws.  Yet, HOA governance is not public governance, but contractual private governance.

From Villa de las Palmas opinion, “We conclude that under the plain and unambiguous language of [the California Davis-StirlingAct], use restrictions in amended declarations recorded subsequent to a challenging homeowner’s purchase of a condominium unit are binding on that homeowner . . .  Subjecting owners to use restrictions in amended declarations promotes stability within common interest developments.

And what about enforceable binding contracts?

read the complete paper . . .

Advertisements
Published in: on October 24, 2007 at 9:23 am  Comments (3)  

The URI to TrackBack this entry is: https://pvtgov.wordpress.com/2007/10/24/homeowner-associations-ex-post-facto-amendments-consent-to-be-governed-contracts-to-avoid-the-constitution/trackback/

RSS feed for comments on this post.

3 CommentsLeave a comment

  1. […] I have been using the term “HOA-LAND” as far back as 2007 and continuously since. (Homeowner Associations: ex post facto amendments, consent to be governed, contracts to avoid the Constitution   (Oct. […]

  2. […] democracy in action”, interference with [unconscionable adhesion] contracts, etc. (See Homeowner Associations: ex post facto amendments, consent to be governed, contracts to avoid the Co…).   But, there must be some form of governance on the existing subdivisions and their […]

  3. George, way to freakin go!!!! I was just about to buy into a planned rip off the home owners unit, but you and the HOA’s Covenants saved me from taking that retarded leap. What can we do to stop this terrible fleecing of American’s rights not to mention their money!!! I really admire you and all that you are doing. Please tell me how I can help.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s