The following is my comment to a post by Evan McKenzie on his Privatopia Papers blog, Las Vegas HOA corruption probe continues. In his post, Prof. McKenzie raised the question of federal congressional hearings on HOAs.
I think it is not only time for federal intervention, but well past the time. There are a number of reasons. First, as I wrote on my blog, people living in HOAs are still citizens of the US and of their respective states, not having waived or surrendered their citizenship. State legislatures have ignored not only the US Constitution and Bill of Rights, but their own Declaration of Rights as found in their state constitutions. They have abdicated their responsibilities to their citizens.
Second, each state has its own set of laws governing HOA private governments creating a confusing and conflicting state of affairs as to what is law and what is not law. It depends on the state you are living in. Only the federal government — and not a national lobbying organization nor a uniform laws commission that have been devoid of any homeowner representation — can legitimately set a single, comprehensive set of laws governing the rights, freedoms, privileges and immunities of citizens.
Third, a decision to settle the issue of HOAs as state actors or as de facto government entities must be made, and that can only come from a decision by the US Supreme Court upon a complaint filed by the DOJ. Can HOAs exist as a government entity? Why not? If not, then what?
Understand, and do not be confused by the blurring of definitions, that the homeowners association is the governing body over a subdivision subject to a Declaration of Covenants, Conditions and Restrictions (CC&Rs). The planned community development is the subdivision’s real estate “package” setting the amenities, housing, landscaping, common elements, and infrastructure that also mandates an HOA form of private governance.
Fourth, it is an issue affecting some 20% of the US population, a percentage greater than the percentage either for the Hispanic or the Black minorities.
It’s time to bring unity to this country and end subdivision governance by HOAs that create independent principalities. The planned community development can remain under a democratic form of government subject to the Constitution. And that must come from Washington. It can start with hearings to air those constitutional issues that have been avoided by every state and court for far too many years.