I do not understand the legitimate purpose of and the California government’s interest in AB 968 (2014, to be effective Jan. 2017). The meaningful change made by this bill is to shift the maintenance of the “exclusive use common area” to the homeowner. In this short bill of 6 paragraphs, the relevant paragraphs all contain the phrase, “Unless otherwise provided in the declaration of a common interest development.”
It follows that the bill would affect only those HOAs that are silent on the costs, repairs and maintenance of these exclusive common areas by imposing and mandating a discretionary split of costs. It transfers “replacing” and “repairs” obligations to the HOA and the maintenance obligation of these same areas to the homeowner. The bill is defective as it does not clarify and define the differences between “maintaining,” “repairs,” and “replacing.” (The California Center for Homeowner Association Law does an excellent analysis of AB 968.)
However, my interest here lies in the legislature’s close nexus with the day-to-day operations of HOAs; its support and cooperation with HOA management; its coercion in forcing HOA members to amend their CC&Rs by 2017 if disagreeing with the state’s imposed mandate that affects their CC&Rs — their private charter or constitution. The bill makes a strong case for finding HOAs as an arm of the state and state actors. Why this intrusion into private contracts? What is the legislature’s legitimate government interest to deny HOA members’ their rights to govern themselves as permitted by state laws and CC&Rs?
While the defenders of this bill will argue that there is no direct interference with private contracts, there is an indirect coercion to force HOA members to amend their CC&RS if not happy with the bill. We know that the deck is stacked against CC&Rs amendments initiated by the membership and not by management. Very clever wording and a recognition of the impact of constitutional law on the bill, and the implied contradiction of HOAs as a democratic voice of the community.
What we are witnessing with AB 968 is the parallels with management – labor disputes, where these 2 classes of employees have different goals and obligations. Here management is HOA management, supported by its member funded attorneys, opposing the interests of the membership. Management is organized and funded, but the membership is fragmented and unfunded as was the case with management – labor disputes.
In 2013 I proposed a Council of HOA Members for each HOA that is legally recognized as a bargaining entity for HOA members. See Organize, organize, organize, but organize your local HOA. Wouldn’t it have been more appropriate to adopt a law establishing HOA membership bargaining organizations? Wouldn’t HOA Member Councils have been a just and fair approach to a vague condition that somehow warranted the legislature to get involved and interfere with local private governments?
Why did the California legislature adopt AB 968? Was it functioning as legitimate representatives of the people, or under special interest lobbying? To better understand how our system of government is functioning in today’s world read Rediscovering American Democracy. Understand why state legislatures favor HOAs as opposed to defending individual rights of the people.
Has America retained the basic tenants of a democracy: the freedom of all citizens to participate equally in government? Rediscover the origins of the philosophical and political theories surrounding representative democracy. What are the American Organic Laws that constitute the fundamental principles of our American system of government? How do they apply to elections, separation of powers, the abundance of rights, and political correctness?