CAI maintains HOAs are protected by and do not violate the Constitution — not so!

Much to my surprise and astonishment I stumbled upon CAI’s press release on its website.[1] It informs the reader that all is well with the HOA legal scheme and there are no waivers of constitutional rights or other constitutionality problems. In fact, CAI claims that the Constitution protects the CC&Rs’ contract.

Contrary to conventional wisdom, Americans do not waive their constitutional rights when they move into a community association. In fact, courts have found that community association residents, by enacting reasonable rules for their own communities, are actually exercising their constitutional rights of association, contract, expression and assembly. . . . By purchasing homes in association-governed communities, buyers enter into constitutionally protected agreements with their neighbors.

The U.S. Constitution gives community association residents the right to govern their own communities without the need to get government’s permission to adopt rules. This prerogative is at the core of individual property rights and is a tradition that dates to the very founding of our nation.

I am not surprised at CAI’s failure to mention yours truly by name, the only outspoken advocate on HOA constitutional violations[2] that emphatically objects to and challenges CAI’s simplified arguments that misrepresent the law.

 

First paragraph fallacies:

Apparently agreeing to  free speech restrictions on displaying signs or flying the flag and due process protections are not considered a waiver or surrender of rights by CAI. CAI’s position that the right to associate and to enter into private contracts is protected by the Constitution is a false and naïve argument. Can you and I privately agree to violate the Constitution, and to associate in community where its government is not subject to the same restrictions as public government?

There are conditions for a voluntary waiver and surrender of constitutional rights that the CC&Rs agreement fails to meet, especially when it comes to implied waivers — those not specifically stated. But somehow the courts enforce the CC&Rs as if they met the requirements for constitutional waivers, like the Twin Rivers[3] case that CAI is relying on. CAI doesn’t mention its amicus curiae that argued In the context of community associations, the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) raises the likelihood that judicial intervention will become the norm . . . .” If no rights were waived, why then is CAI so concerned about restoring them?

I have raised the valid argument of misrepresentation in the selling process and that the buyer was misled and not fully informed as to the consequences of his entering HOA-Land. No one, who firmly believes that HOAs are good for America, has stepped forward and publically signed the Homeowner Association Consent to be Governed Agreement: A Model Act[4] that a sign-off of explicit waivers and surrenders of constitutional rights (in paragraph 3), including a waiver of the equal protection of the laws.

Second paragraph fallacies

I explain in “HOAs violate local home rule doctrine” (see note 2 below) that HOAs are allowed operate far beyond state laws relating to home rule statutes, granting HOAs independent political government powers are denied to legitimate home rule communities. Consequently, HOAs are being treated with special laws for special entities in violation of the Constitution, federal and state.

The question that I have raised, and ignored by CAI in its release and in other communications, is summed up in the following statement: “The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.” In essence, HOAs have been allowed to operate outside the Constitution as authoritarian independent principalities, violating the fundamental principles and values underlying our American way of life.

While CAI publicizes its claims to be working for productive, healthy and desirable communities, it is apparent that these communities are not part the American system of democratic government. It advertises that it is an educational organization, yet conducts surveys to promote its view of what is good for HOA-Land.

References

[1] https://www.caionline.org/PressReleases/_layouts/15/WopiFrame.aspx? sourcedoc=/PressReleases/Media%20Statements/Homeowners%20and%20Constitutional%20Rights.doc&action=default. October 7, 2015. (I don’t know how long this has been there, but CAI has revised its website recently.)

[2] See in general, CC&Rs are a devise for de facto HOA governments to escape constitutional government; Unconstitutional delegation of power to HOAs; HOAs violate local home rule doctrine and are outlaw governments.

[3] CBTW v. Twin Rivers, 929 A.2d 1060 (2007).

[4] An example: “d). I understand that the association, as a private entity and not an arm of the state, is not subject to the restrictions and prohibitions of the 14th Amendment to the US Constitution that otherwise protects the rights of the people against actions by public government entities; (g) that there are no equivalent clean or fair elections procedures to protect the integrity of the HOA election process as found in public government elections.http://pvtgov.org/pvtgov/agree-disclose-license.pdf.

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4 CommentsLeave a comment

  1. The whole HOA concept is an EXPERIMENT. A FAILED experiment by the ULI (Urban Land Institute) planner’s of the CAI. They refuse to acknowledge the CAI as an experiment ONLY!

    DECEPTION is their game. Urban Land Institute is as criminal as the Bureau of Land Management.

    The Communist’s are forcing their agenda of dictating and punishing ALL homeowner’s until they achieve the goal of owning ALL properties including ALL structure’s. LOOK AT THE “BLM”!

    The “Property Manager” is another DECEPTION. Their true identity in business practice is that of “RESALER”. We know the CAI is heavy into Lobbyist’s which is scary enough. Just a few years ago the ULI/CAI started their own Association of Property Management Companies headquartered down in Texas. California’s,Professional Community Management Co.plays a big part in putting this Association for Property Manager’s together with the name “ASSOCIA”.

    Regulating Outlaws? or Commies? Thieves? The BLM – no-way. The ULI – nope. Regulation is off the table. Abolish and Banish several Federal and State Depts; Agencies; All HOA’s + CID’s. Even the EPA. DO IT ONCE AND FOR ALL AMERICANS.

    I know Donald Trump is good for making that Dream come true!
    Get the Occupier’s out of our homes. Our homes and property are the way and the means to put America in her grave…….

  2. People, call your State Legislator and tell them to REGULATE THE MANAGEMENT!

  3. We need our government to monitor and force CAI and ALL HOA Board to strict standards and have HUGE fines placed on each HOA manager, managing company and HOA Board of Directors each and every time they violate the laws and the rights of citizens. The abuse that is being allowed is going to result in more HOA property values going down and more people saying “we do not want to buy in any community that has an HOA”. And the insurance companies should form strict rules for each HOA community management company, HOA manager and every person on the HOA Board that they will not be covered by insurance if they violate the rights of individuals as covered by law, if they break the law such as violating property rights or private communication and if they do not meet their fiduciary responsibilities. The abuse of private homeowners by HOA managing companies and HOA Boards is out of control. The only way these abusive people are going to learn their lesson is if the insurance companies say they will not cover them if they infringe on the rights of the owners and if they do not follow the laws and their fiduciary responsibilities. I urge every owner who has an abusive management company or HOA Board to find out which insurance company is covering the HOA and let them know they should not cover the individuals involved because they are not following the HOA laws or meeting their fiduciary responsibilities. Once the people on Boards or management companies know that if any lawsuits happen they will be held personally responsible they will stop being abusive and ignoring common sense laws.

    • The insurance will not cover them if they are found to be committing a fraud or a organized crime. And that is what the Management does, just work orders, work orders… Spend money, spend money…The result is HIGH ROCKETING FEES!!!!
      I agree with REGULATING the Management!
      Department of Commerce should be responsible!


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