Gross injustice: HOA declarations not a contract, but held binding as a contract

In Epernay CA v. Shaar the Texas appellate court again avoided declaring that a declaration of CC&Rs is a contract, but use the carefully worded, CC&RS are subject to the general rules of contract construction,” followed by, “In construing contracts. . .” Other courts have declared CC&Rs to be a contract without providing evidence, making the declaration a dicta (ipse dixit made by a judge). Others have referred to cases that, themselves, are also dicta utterances.

 

The reason for this is that HOA governments under CC&Rs are held to be subject to the laws of equitable servitudes, which simply requires the filing of the CC&Rs with the county in order to be binding on the unsuspecting homeowner. He doesn’t even have to read the CC&Rs or even explicitly consent to agree in general, or to agree with the surrender or waiver of all his rights stated or implied in the CC&Rs. If indeed CC&RS were to be considered a bona fide contract under contract law 101, they would be thrown out the window.

 

See the responses to the Truth in HOAs poll where 92% said they would not agree to the conditions in HOAs as disclosed in the Disclosure Agreement.

 

Additionally, if the requirement for the genuine consent with full knowledge, and the absence of misrepresentation, were applied under contract law, the CC&Rs would be thrown out the window.

 

Why have the courts followed servitude laws over constitutional law with its requirements for the equal application of the law – contract law – and due process protections against special laws for special private organizations? Why have the courts or state legislatures failed to declare HOA governments to be an unconstitutional delegation of legislative powers to private organizations? Or to be state actors under the criteria set forth by the US Supreme Court (and not the ancient and misplaced holding of the “public functions” test)?

 

If people can get together a draw a contract, call it CC&RS, and operate as private governments not subject to the 14th Amendment, why do we need constitutional government? That’s secession, isn’t it?

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Published in: on August 26, 2011 at 8:11 am  Comments (4)  
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4 CommentsLeave a comment

  1. my name and bank on deed at sheriffs office and town tax office. yes sheriffs sale bidder HOA no new deed at either office. tAXES ARE STILL BEING PAID BY BANK TO THIS DAY.This happened 9 months ago just found out tenant in my propert.

    • If you can send me names and places I might be able to do some research.. Send to info@pvtgov.org

  2. HOA stole my property right out from underneath me. Got writ of possession put me out of home, and now they are renting my property to a tenant no foreclosure by bank and bank never step in. I defaulted on payments against HOA lien and HOA say they have the right to rent property while waiting for bank to foreclose on property.
    Has anyone ever heard of this how can I fight back???????????

    • We need some details. Who is on the title? You or the bank? Was there an auction? Were you evicted? Some details if you want an answer that’s not pie-in-the-sky.


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