In search of the elusive ideal HOA agreement

 

I received an email from a well-intentioned homeowner in Georgia. He was on the committee to rewrite the CC&Rs to make it fair both to the 692 homeowners and the HOA, which, I hope he realizes, is the current board of directors. He asked for my input, so I wrote in return:

 

  1. Do you think the Committee can create a more perfect union than that attempted in writing the US Constitution?

  2. Do you think 692 people can agree on everything in the CC&RS that you are putting together?

  3. Do you think 692 people really care about HOA government participation, or did they just want to buy a home?

  4. Would the Committee and the HOA Board sign, along with the 692 owners, the  Truth in HOAs Disclosure Agreement?

  5. Would the Committee include a guarantee that the HOA will maintain property values in exchange for the various waivers and surrenders of the owner’s private property rights and interests, both explicitly stated or implied by the CC&Rs, or by future court rulings? If not, then what is the buyer getting from the HOA? In a true democracy, people give up certain of their rights to the government in exchange for gurantees, justice, protections against more powerful factions, and to obtain an orderly, smooth-running society.

  6. Would the Committee include a prohibition on“ex post facto” amendments to the CC&Rs, similar to that in the US Constitution? That is, honor all prior CC&Rs versions existing at the time of each owner’s purchase? In other words, they are all grandfathered.

  7. Would the Committee include wording to the effect that the HOA irrevocably agrees to be bound and subject to the US Constitution and Bill of Rights in the same manner as if it were a local public government entity, as all other forms of are bound and subject? The phrase, “in the same manner as if it were a local public government entity,” is mandatory. Simply agreeing to obey the Constitution, as found in some CC&Rs, is meaningless would not subject the private HOA entity to the 5th and 14th Amendments.

Now, I hope you will realize the impossibility of your task and its expected failure. No one can expect a bona fide acceptance and willingness to obey any CC&Rs that are created as a mass marketing device to be sold to the public at large. And one that cannot be modified by the buyer in a true give and take exchange necessary for a valid and binding contract.

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2 CommentsLeave a comment

  1. As long as a board of directors controls the entire government (and they always do), they are, in James Madison’s words, tyrants. Some homeowners may be lucky enough to have honest, decent, civic-minded, and competent tyrants on their boards, but they are tyrants nonetheless.

    I agree with you that your emailer from Georgia is on an impossible mission. About the only piece of advice I can give is to prohibit proxy votes. Letting boardmembers walk into an Association meeting with a pocketful of proxies, which they can use to vote any way they want, is just giving the tyrants even tighter control over homeowners’ lives. Instead of proxies, allow mail-in votes, and find some secure way to count them that is not controlled by the board.

    This won’t transform the emailer’s community into HOA heaven, but it might help some.

  2. Excellent, George. Our subdivision is still free – no HOA – and we have the protections of the Bill of Rights. Homes built in the 1950’s and the neighborhood looks great!


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