‘Have you even read the US Constitution?’ In HOA-Land, Why bother?

Have you even read the US Constitution?” was a question asked of Donald Trump by Mr. Khizr Khan, a Muslim, at the Democratic National Convention this past Thursday.[1]  The implication was that Trump’s actions and views were contrary and inconsistent with the terms and conditions of the US Constitution.

In HOA-Land, under its organic ‘law,’[2] the 1964 Homes Association Handbook,[3] the US Constitution is ignored and has no applicability to HOAs. State laws and HOA declarations are permitted to be held valid by the courts as HOAs are seen to be voluntary private agreements that contain unknowing waivers and surrenders of fundamental rights and freedoms by its members.[4]  Understanding this reality, I can ask in regard the applicability of the US Constitution to HOA-Land, “Why bother?”

In the same context of contrary and inconsistent acts and views, the same question can be asked of legislators in every state, state agencies whose function is to protect consumers, the legal-academic elitists who act as if they are the modern incarnation of Philosopher-Kings, and the media that, by its silence, aids and abets a false and misleading picture of HOA-Land.

The people are being intentionally deceived.  Which candidate, if any, will stand up for those 23% Americans living under HOA-Land private governments not subject to the Constitution?

 

References

[1] The question was asked of Donald Trump in regard to Trump’s views and positions on Muslim immigration.  Mr. Khan’s son, a US Army Captain, was killed in Iraq.

[2] “The U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi). The organic laws of HOA-Land are replacing the organic laws of the US as applied to local government.” See Legislative protection of HOAs: replacing US organic law with HOA organic law.

[3] See Analysis of The Homes Association Handbook.

[4] See HOA member Declaration of US and State citizenship and CC&Rs are a devise for de facto HOA governments to escape constitutional government.

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Published in: on July 31, 2016 at 8:30 am  Comments (8)  

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8 CommentsLeave a comment

  1. The only way to get rid of the HOA is for the homeowner to submit a “Withdrawal of Membership ” in the HOA to the Community Manager.

    There is no provision in the CCRs or BY LAWS of the HOA which prohibits a member from withdrawing membership. It is like the right to work law…no citizen of the USA is denied the right to homeownership without being a member of the HOA. The 13th Amendment prohibits any organization or association ( private entity or quasi state actor government ) from imposing private home rule mandates upon homeowners and who treat homeowners of the HOA as quasi-slaves held captive to unconstitutional and arbitrary enforcement of CCRS without due process of law guaranteed in the Bill of Rights.

    Withdraw and stop paying HOA dues and file a lawsuit against the HOA and its lawyers if they place a LIEN on the property to collect HOA dues , fines and penalties. The HOA is not a federal government agency like the IRS who routinely impose fines, penalties, liens and levies without DUE PROCESS. The HOA is a PRIVATE ENTITY and has no delegated authority from the U.S. Constitution to legislate its own rules and act as executive arbitrator. The HOA doesn’t have a FIG LEAF of justification to act as a quasi-government private entity.

    This strategy is one way to stick it to the HOA.

    • Under the CC&Rs ‘contract’, which the courts hold members to have fully and openly agreed to and accepted, you are bound until death or moving to pay assessments and obey the governing documents.

      This appears to be, as you imply, indentured servitude. Need a court decision to restore fundamental rights.

  2. Even as ‘voluntary private agreements’ the HOA scheme is inconsistent, as pointed out by Shelly. The owner has to abide by the contract No Matter What or risk losing property equity and life savings. The HOA’s obligations under the ‘contract’ are often optional. For instance, the board may enforce CC&Rs, rules, but they don’t have to. The board doesn’t have to do much to maintain the common areas – only truly egregious neglect or recklessness brings a legal penalty for the HOA. That’s difficult to prove, given the business judgment rule provides many opportunities to do the bare minimum or nothing at all, upon the advice of an “expert.” And the contract almost always provides for the HOA to be insured and the Board to be indemnified. No similar protections exist for homeowners or other residents.

  3. I am a Canadian from Ontario and know little of the Constitution but I do understand the benefits of accountable transparency and Direct Democracy for all common interest real estate ownership.

    The US and well as Canada are not a direct democracy but are considered representative democracy – for accountable transparency and engagement of owners communities require direct democracy.

    I have been called naive on many occasion but not by those that understand quality governance which must be prepared by those being governed. Regardless where you own legislation represents your legal jurisdiction minimum standard and nothing prohibits owners from passing governing by-laws that exceeds legislation.

    The above comment may take a while to digest but I can assure all community’s governing documents *by-laws” are for owners; not legislators or managers and certainly not for the legal profession.

    Even Direct Democracy is not for everyone, nothing is perfect; as an owner you must be prepared to accept the fact that majority rules..

    • An exceedingly high vote is required, difficult to get…and that is, IF the board is even willing to put it up to a vote.

      • Thanks Jill for the reply.

        In Ontario, a general governing by-law for a condo corporation requires 50% plus one of all unit owners, what is the percentage in Arizona?

        Percentage to change a Declaration in Ontario is 90%, which is almost impossible but it’s doable; I’ve done it myself when I amalgamated three condo corps into one – takes time and a lot of work.

        We don’t technically have HOAs in Ontario; we have other forms of condominium corporations, or when two or more condominium corporations share common property, it is governed by a Shared Facilities Agreement.

        You are 100% correct – if the Board is not interested (their loss) then the only solution is the removal of those elected volunteers who are not fulfilling their duties; looking out for the best interest of the majority of the owners while meeting or exceeding legislation.

        .

  4. When my brother found out that what his board was doing in a Florida condo–illegally hiring a company to replace windows to the tune of 12 million–he wanted to stop paying his dues because they were breaking their end of the contract (CC&Rs). I explained to him how it works–that they can neglect to follow the documents and law and the only remedy was for him to privately enforce the law at great expense to himself but that if he broke the contract they can take everything he owns.

    He then asked me, “Why bother to fight for my rights?” I said “Exactly!” He did not understand until that moment why I was against HOAs and an advocate for homeowners–now he gets it.

    Thanks George for an insightful reflection.

  5. The Greater Phoenix area is appx 75% HOAs!! Much greater than the national average…Surprise, Avondale, Peoria, Gilbert (and more) are 92% and above.

    Possibly we need new people voted in all around.


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