Consent to be governed, No. 4
When pro-HOA supporters are pushed to justify the conditions of living in an HOA they usually end up with: “you agreed to the contract,” “if you don’t like it move out,” or “remaining in the HOA means acceptance to be governed.” Here I will show that these defenses lack merit.
First, the application of contract law to the CC&Rs agreement reveals the many invalid aspects of the CC&Rs as a bona fide contract. It is obvious from a simple review of contract law. Yet, courts have held that the CC&Rs are a contract or are to be interpreted as a contract, and have even analyzed the meanings of CC&Rs in the same manner as a contract. But, the courts do not question the validity of the CC&RS contract with respect to contract law. The courts resort to equitable servitudes law, which simply requires the acceptance of a deed in order to bind the home buyer to the CC&Rs sight unseen.
This apples and oranges approach doesn’t make sense, does it? Unless, of course, the motivation is to coerce acceptance of the HOA legal scheme by violating the Constitution’s requirement for “the equal protection of the laws” for all citizens. A common sense approach for a just and fair contract says that this is all wrong; that applying servitudes law to coerce private government acceptance makes a mockery of the Constitution.
Second, for illustrative purposes, let us look at current events in regard to Obamacare, where the people are discovering what was said in support of Obamacare is turning out to be not so true. That certain claims were misrepresentations and half-truths, which were obviously made to induce acceptance of Obamacare. However noble the ends of Obamacare the means to achieve it are deplorable. However noble the ends served by the bill that Arizona Representative Michelle Ugenti may have believed the deliberate violation of the Arizona Constitution was not an acceptable means.
This is the same scenario that was played out in the mass merchandising of HOAs by the stakeholders, including state legislatures. This scenario holds that the beneficial ends served by HOAs justify the false and misleading means to obtain acceptance. A society that accepts such conduct is dysfunctional and does not build a better community, but destroys it. Think about it!
If indeed HOAs are the next best thing to Mom’s apple pie, wouldn’t it be sensible for the proponents of HOAs to put the matter to a test. Where is the full disclosure, as contained in the “Truth in HOAs Disclosure,”[i] of material facts for example, regarding HOA regimes? If there is true consent by home buyers, why is CAI afraid to conduct this poll or state legislatures to draft legislation that requires such a disclosure? Common sense tells us that this is the just and ethical thing to do, unless there is something to hide.
Third, rather than proceed as suggested above, the faithful HOA defenders have resorted to the mantras (I use this term to indicate unsupported and irrational dogmatic statements) such as “move out” and “HOAs are not for everybody.” The argument that remaining in the HOA amounts to consent to be governed is without merit.[ii] Aside from the ethical questions presented by this argument, it ignores the charges of fraud and misrepresentation to induce home buyers to accept the HOA agreement. It ignores the failure to pass judicial scrutiny[iii] for the waiver or surrender of constitutional rights. In other words, the HOA comes with unclean hands, which greatly weakens the legitimacy of its position to demand consent and that to remain in the HOA is full consent to all that the HOA does.
For example, where’s the common sense to expect obedience to the rules and regulations when no notice has been provided of what constitutes a violation? Unlike in the public arena where all violations of the law are made public (publicized in code books, online, etc.), not having knowledge of the law is no defense for a lawbreaker.
I find it hard to believe that the vast majority of HOA members fully consented to be treated as second class citizens resulting from the lack of Constitutional protections that they were told, since childhood, are guaranteed to all Americans. I find it hard to believe that most members did not have a reasonable expectation that the state would not protect them and not provide meaningful enforcement against HOA board lawbreakers, or to believe that ex post facto amendments were valid, or to believe that the HOA would engage in a wide range of questionable activities under its grant of broad powers.
But this is what the pro-HOA special interests want you to believe! That the good people of America seek unequal status, and prefer it (all those CAI surveys). This is a disparaging and belittling attitude toward the good people of America, isn’t it? It is an insult!
Obedience in conscience to a government requires fair and just laws. In fact, the legitimacy of a government is based upon promulgating fair and just laws.[iv] It is the fundamental basis of the social contract between the people and the government. And it is common sense to expect the same from private HOA governments.
Homeowners in HOAs must demand equal status with non-HOA homeowners and demand that the government justify why there should be unequal treatment and the loss of their rights, freedoms, and privileges and immunities under the Constitution. Homeowners in HOAs must demand justifications that will meet and pass judicial scrutiny.
[ii] See Contracts, the Constitution and consent to be governed that addresses public government, yet applies to HOAs.
[iii] The Supreme Court has set tests for the constitutionality of legislation depending on the nature of the rights being violated. The most demanding is a necessary and compelling justification for the law, and that no other alternative is available, to a simple demonstration that the law serves a genuine government interest.
[iv] Prof. Randy Barnett wrote; “A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority … constitutional legitimacy can even be seen as a product of procedural assurances that legal commands are not unjust”. “A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just”. (Restoring the Lost Constitution, Princeton Univ. Press, 2004).