Part 1 – Is there an ideal HOA constitution?

THE TASK – PART 1

A reader of my HOA Constitutional Government blog asked the following questions:

1. In your opinion, what constitutes a reasonable set of covenants that protects the rights of homeowners while enabling a HOA to manage and maintain the common areas, facilities and character of community?

2. Another way of asking the same question: if you had the opportunity to write the Declaration and Bylaws for a new community, what would be in it; what would not?

THE BACKGROUND: FORMING NEW SOCIETIES

I hope the reader is not expecting a “silver bullet” answer, one that solves all problems and all concerns for all people. I also assume that the reader is hoping for such a silver bullet, an ideal governance model, with respect to HOA governance. Please bear with me and read on, because what I say addresses the legal, and social environment and culture upon which “protects the rights of homeowners” resides. One cannot simple change covenants without first dealing with the broader legal scheme and societal effects of homeowners associations.

For those not familiar with my views, these seemingly simple questions involve a much broader and complicated response. First, setting the stage for my reply, let me say that I am not in the business of designing utopian societies, as planned communities were initially conceived and promoted, because, whose view of utopia will be set down? HOA residents are well aware that neighbors do not agree with one another, and the board seems to be way out in left field. So, whose vision? How does one get consent to be governed or to accept the utopian vision? Certainly, we will all agree not from a take-it-or-leave-it developer’s profit motivated covenants based on the “bible”, the 1964 Homes Association Handbook. That utopian scheme, or planned community society, did not stem from any attempt to makes improvements in society or upon the US Constitution, but to make money. It demands a behavior modification of the HOA members to adapt to the authoritarian regime, and to live up to the incessant pleas by HOA supporters to “Get involved! Get involved! Get involved!”

Utopian societies rose and fell based on some vision of a better world, and that includes communism, and required dedicated, devout followers, “true believers”. Because of these requirements, they have been limited in number with small groups of participants or followers. Often, the vision required behavior modification of the followers, that is, a change in their behavior was necessary to conform to the standards, goals or objectives that make the vision. A simplistic example would be a religious order or a military school. Some prefer being told what to do, when to do it, what to wear, etc. For the military, they remain because they believe in the mission of the society, which could be “defending my country”, or in that, “I got a better life here than at home.”

When the impracticality of the vision became apparent, or the followers discovered through living the dream, that the vision didn’t look too good, the society declined. Other social orders, such as the Pennsylvania Dutch are consistently involved in education, from childhood through adulthood, to reinforce their way of living. In these societies, the children who do not accept what can be called the mindset of the society, may leave while their parents remain strict devotees. The mass merchandising of utopian societies, and the HOA version also, to everyone, everywhere does not work.

Second, I am also not in the business of attempting to make a more perfect union. And neither were the drafters of the Handbook. Nor were they attempting to create a working democratic society. Constitutional issues were ignored since the designers of planned communities were only focused on real estate concerns: a land usage issue, a “best use of the land” issue, and an “affordable housing” issue to please all parties necessary for this concept to become well established. That’s why, partially, the HOA is based on an undemocratic corporation model rather than our system of government. Who ever heard of a corporation being called democratic? And, it’s hardly likely that anyone will come forth with a better system of governing than the Founding Fathers.

AS TO THE SECOND QUESTION

With some understanding of the above, I have already responded to the second question: not my job. Creating an entirely new society would be for a like group of thinkers, believers, or followers to decide amongst themselves and form the society. Admitting new members would consist of much more questioning and investigation of potential buyers than that performed by the third-party real estate agent today, and not at all by the HOA. Where such vetting, to use today’s political terminology, would be included in the CC&RS as a protection against “undesirables” or potential “deadbeats” would ruin sales for the developer. If this question assumed that “a new community” would be basically an HOA, then that would be part of my answer to the first question, which follows.

AS TO THE FIRST QUESTION

Now, as to the first question above, which contain two premises, or implied assumptions. The first seeks to improve homeowner rights within the existing structure of the HOA, but adds “the character of the community.” The character of the community was an objective only so far a protecting the values of the physical landscaping and real estate structures incorporated within the subdivision. Other amenities, if any, and many HOAs as a result of the mass merchandising of this scheme do not have any amenities or common property, were selling points for the communal ownership of the common property under “affordable housing.” “How else could the average homeowner own a pool, or a tennis court, or a park unless he agreed to share ownership? He couldn’t afford it alone!” If you look at most of the larger HOAs they are very similar to a resort, and who can speak of the character of a resort? Nice friendly people? Party people? Seniors? They have a great board of directors? Are the resort personnel out there helping you have a good time, or watching that you obey the rules?

Yes, the Handbook, which I read by the way, did offer verbiage on how to create a happy, resort-like atmosphere in the community as if it were indeed a resort, but was silent on how to run a community government. The word “government” was taboo, even back then.

On a broad basis, in several of my prior Commentaries I have already addressed the question of a better HOA model that would allow the HOA to retain its function as a preserver of the landscape, yet introduces aspects of public government to protect homeowner rights and freedoms. Simple stated, taxing districts (see my Commentary on the muni-zation of HOAs). In anticipation of the reaction of many readers, let me say that I still have difficulty with the gut reaction by many who oppose public government intervention, or as I see it with respect to HOAs, government protection, yet see no problem with private government interference that removes many of their public “guaranteed” protections.

If readers have a problem with this, stop reading now because you are beyond any help. As you have discovered, your neighbors are not always on your side, they don’t care about HOA violations or what they see as your personal problem. There is no one to help you. I say again: There is no one to help you. Face that fact. Of course, you can avoid any problems by being a good member of the regime, and always pay your assessments without a complaint. Only the enforcement of public laws against HOA “contract” violations or torts (acts that injure you one way or another, outside any contract) committed by the HOA board and officers will provide the help needed to protect your rights.

 

Continued:  Part 2 – Is there an ideal HOA constitution?


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Published in: on September 26, 2009 at 8:12 am  Comments (2)  

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2 CommentsLeave a comment

  1. […] Have these legislators ever thought about whether there exists an ideal HOA  constitution that is compatible with the Constitution?  Well, there can be, as I have explored in Part 1 – Is there an ideal HOA constitution?. […]

  2. You’ve hit the nail on the head. There IS no one to help us. Even the lawyers we pay exorbitantly are not really on our side. They all play the lucrative HOA game, and homeowners lose.


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