The Dec. 1, 2011 Condo Issues.com blog by Tyler Berding has, as it title, the long hoped for condition sought by homeowners: “And Justice for All.” Except the author, Steve Weil, fails to make the case that such is the condition in HOAs with their disgraceful, commonly found due process clause: “after notice and an opportunity to be heard.” Period. Citing almost identical California law only supports the legislature’s pro-HOA authoritarian regime and its denial of fundamental protections of individual rights and liberties. Apparently he never saw the 1979 Al Pacino movie by the same title.
Weil goes on to make his “expert” legal view by citing the Aliusi v Fort Washington Golf Club case, which is not a private government HOA dispute. He speaks of 1) revealing the name of the accuser, 2) the submission of evidence, and 3) makes a good point on the details required by a proper notice, or “indictment,” of wrong-doing. He buries the principles of “and justice for all” in his discussion of issues 1 and 2 above, but, reading between the lines, agrees with the right to confront witnesses and to see and challenge the evidence. Weil concludes with, “the reason for “due process” is to give one who is the target of a hearing a fair chance to defend him/herself.”
However, he makes the pro-HOA assumption, an ipse dixit, that the board, the “jury”, is indeed interested in justice, for if it truly were, it would establish an independent tribunal for hearings. “Giving the owner this opportunity helps reveal the real and relevant facts and thus also aids the board’s decision-making process.”
Finally, the author well understands the moral and ethical aspect of legitimate government and laws. He ends with the need for homeowner acceptance of HOA justice with, “an owner who feels they were given a “fair shake” is much more likely to agree with the board’s disciplinary decision and comply with the governing documents.” It is a long established doctrine, going back to the Greek philosophers, that the legitimacy of government depends on fair and just laws, and the fair and just enforcement of these laws. It is well established that HOA private governments are unjust and authoritarian in structure with a façade of democracy — just because a member can vote does not make an entity a democracy.
There are no due process protections for homeowners in HOAs that would pass judicial scrutiny. Arguments that buyers agreed to be bound to the CC&Rs and bylaws is a mockery of the facts, as the selling process is ripe with misrepresentation — false statements, half-truths, and “no negatives.” See Truth in HOAs disclosure poll — please vote your conscience.