Can HOAs be democratic without fair elections?

A homeowner rights advocate raised this very “on point” question:  Is buying votes in an HOA election illegal?  I initially answered that I was not aware of any explicit restrictions in the statutes, the governing documents, or in case law.  However, after reflecting on it for a while, I found arguments relating to the justification of the authoritarian HOA regimes and the need for a right to vote by the members.  

Restatement Third, Servitudes, Ch 6, Common-interest communities (2000):

6.16.  Representative Government.

(c) Election of governing board. . . . [E]lection procedures must provide a reasonable opportunity for eligible members to become candidates for election and to make their views known to the electorate, and a reasonable opportunity for eligible voters to cast their votes.

6.18. Meeting and elections.  [nothing here addresses the question of fair election procedures and protections of a members’ election to the board]. 

Comment (a) speaks to a servitude (covenant) on a member’s right to participate in the governance of the board.  It justifies the HOA control over subdivisions with,

One of the primary justifications for permitting . . . servitudes that subject property owners to the often extensive powers of the [HOAs] to affect their property values and quality of life is that the members have the power through the political process to control the actions of the association.

 

What a false and erroneous statement about the political power to effectively control the  board. It reflects  an “ought be” rather than as “is”.  This erroneous statement, relied on by the courts, was made from high above by the legal-academic aristocrats who wrote the Restatement!   There are no fair elections covenants and procedures in the HOA legal scheme to protect the people that come anywhere near the laws governing elections in the public realm.  And, in my view, deliberately ignored along with all other 14th Amendment protections of due process and the equal application of the laws. 

 

The “comment (a)” excerpt was just lip service. How on earth can homeowners be effectively empowered in a corporate form of governance, under an adhesion contract written in favor of the business interests of the developer, and one that protects the interests of the HOA corporation over the individual rights of members?  To plead ignorance of constitutional law 101 and government law 101 is ludicrous!  This treatment  with its lack of concern for constitutional protections can only be viewed as intentional.

Why do I argue that the lack of constitutional protections is deliberate?  There are several self-evident reasons, but let me trace the origins of why the “voting makes the HOA democratic” defense came about, and why it was necessary to make this misleading argument.  In several prior posts over the years I made reference to the Homes Association Handbook, Technical Bulletin #50 (published by the Urban land Institute in 1964), as the “bible” for the modern incarnation of homeowners associations.  In the Handbook we find parallel statements on voting and the need for democracy in HOAs.  Here are excerpts as can be found in The Foundations of Homeowners Associations and the New America, Part I, The Homes Association Handbook, p. 17:

The other [as opposed to a bureaucratic style of leadership] requires more participation in order to give members a feeling of satisfaction with association operations; it may be called the ‘democratic style’.   

The members can always fall back on democratic controls provided in the bylaws [the corporate governance form of bylaws] to exercise their power to correct a situation . . . . But usually members will not involve themselves in active participation.

The right of every homeowner to membership and to vote is, in our opinion, critical to the strength and success of an automatic homes association.

Because the articles and bylaws of a corporation are relatively easy to change, further strength will be lent to this arrangement [that mandatory assessments require mandatory membership] by inserting a provision governing membership and voting rights in the association in the text of the declaration of covenants and restrictions.

The above accurately reflects the lack of treatment of constitutional protections or any concerns for establishing a working form of government equivalent to public government.  This intentional disregard of the protections of individual rights has remained over the years, and its influence on the legislatures and courts can be seen in numerous incidents. 

As examples:  the 2007 Twin Rivers free speech case where servitude law was given dominance over constitutional law; and in the 2009 declaration by an Arizona superior court that an independent tribunal, the state’s administrative hearings function, was unconstitutional, but the “kangaroo” HOA courts are not.

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Published in: on December 31, 2009 at 7:55 am  Leave a Comment  

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