CAI continues[i] its black-is-white and white-is-black Alice in Wonderland[ii] view of the world with more pronouncements that the corporate form of HOA governance under an adhesion contract is “the most local form of local representative democracy“. This new pronouncement of Fundamentals[iii] must be read carefully, as must all pronouncements from those who practice the political “permanent campaign[iv]” approach to HOA issues.
These Fundamentals must be interpreted based on the facts, that HOAs are legally bound in accordance with the corporate form of business government, and under a binding adhesion contract. Do not confuse HOA governance with public government. Do not assume that the HOA does indeed function under the same mission, duties, obligations and restrictions as public government. They do not! Take the time and compare. Do not accept these political lobbying statements by CAI whose aim is to persuade the public to accept its view of a New America as valid.
CAI clearly states that these Fundamentals “will help people recognize the core principles at the heart of the community association model”. But, before declaring that HOAs are the common local form of government, the Fundamentals first principle is to declare that “Associations ensure that the collective rights and interests of homeowners are respected and preserved.” The reader should step back and examine what is being said by CAI.
First, CAI is no longer saying HOAs are the best form of democracy. Second, CAI is speaking not of individual rights and freedoms, the foundations of American democracy, but of “collective rights and interests“. Third, CAI is declaring that indeed HOAs constitute a New America[v], a America based on a communal society, a socialistic society, and not one based on fundamental American values, beliefs, and principles as stated in our constitution.
In CAI’s black-is-white and white-is-black world, this declaration is consistent with its opposition to the constitution when it argued against “the unwise extension of constitutional rights to the use of private property by members” to the NJ Appellate Court.[vi] It is inconsistent with its statements that HOAs are democratic, at least not as practiced in America under the Constitution.
Looking at these Fundamental principles, CAI’s position on HOA democracy is clarified. Items 9 and 10 address concerns for the individual homeowner. Item 9 is a declarative statement of balancing collective rights with individual rights. It is not a goal statement, but a declarative statement which must be taken as an assertion of fact. Item 10, pertaining to compromise with homeowners, is a guideline as it uses “should”. In all fairness, CAI does declare in Item 8 that the HOA directors must obey the governing documents and the law. Unfortunately, CAI fails to indicate that not only are the governing documents easily interpreted as an unconscionable adhesion contract, but that the laws favor the HOA and permit the loss of homeowner rights and freedoms. Items 9 and 10 must be read with these facts in mind.
My “Alice in HOA Wonderland” Commentary referenced in footnote 2 also addresses the qualitative aspects of a democracy, as put forth by Professor Robert A. Dahl, and argues that voting alone — without due process of law, separation of powers and checks and balances — does not make a democracy. This Commentary must be read to understand the simplified propaganda of Items 2 and 5, which resort to implications of bona fide democratic processes at work in HOAs just because homeowners are allowed to vote (unless not fully paid-up).
Fundamental Item 6 is CAI’s attempt to justify the New America of HOA governance with the misleading and simplified, “homeowners choose where to live and accept a contractual responsibility”, ignoring any discussion of adhesion contracts. I addressed this “permanent campaign” statement in a Commentary[vii] that argued a wrongful application of public law doctrine to the binding contractual nature of HOA government. “How does a person exhibit his consent to be governed” under a contractual arrangement, I asked. Again, read this Commentary after reading Item 6.
[i] CAI argues HOAs are democratic, yet not a government, HOA Constitutional Government webpage, Apr. 3, 2008. (Commentary on CEO Skiba’s pronouncenets that somehow “HOAs are businesses, but are democratic”, and CAI’s utopian stated desire to create a more perfect democracy than our existing democracy: “The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable. . . .”)
[ii], Alice in HOA Wonderland: recognizing HOA political governments, HOA Constitutional Government webpage, Aug. 4, 2007.
[iii] Community Associations Fundamentals, http://www.caionline.org/governance/fundamentals.pdf, Oct. 25, 2008.
[iv] The Second Civil War, Ronald Brownstein, Penguin Books, 2007. (“The political system now rewards ideology over pragmatism”, p. 12).