HOA consent to agree vs. “the will of the majority”

As I’ve repeatedly written here,[1] the fundamental justification for the validity of the HOA CC&Rs (declaration of covenants, conditions, and restrictions) resides in the highly controversial doctrine of a bona fide consent to be bound.

Edwin Meese III explains that the “Will of the majority” is a political mechanism for decisions to be made by the government:

The “consent of the governed” stands in contrast to “the will of the majority” . . . consent is the means whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate [and hence just] is whether that government rests on the consent of the governed. . . .  Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens.[2]

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 …. A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the HOA amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.[3]

This doctrine raises the issue of ‘the tyranny of the majority’ when the minority is not given due respect nor the ability to freely and equally speak out on HOA governmental issues. The structure of HOA governance is not based on and contradicts fundamental American principles and traditional values.

The legitimacy of consent

Allow me to clarify the concepts of “the will of the majority” and “majority will,” with the “consent to agree.” While my discussion deals with our constitutional system of government, it applies to the private, de facto HOA system of government as well. Both claims to be representative democracies where the citizen-member agrees to be bound by a constitution (CC&Rs) and the decisions of their representatives, supposedly acting in their behalf.

As we are well aware, a citizen-member is held to be bound by the will of the majority as evidenced by means of a vote of approval even though he himself did not approve or vote. Yet a majority vote construed as the will of the people is antithetical to a government of the people. “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” It is a practical solution for a government of the people to be able to function, but the solution is contrary to a government of the people.

It is a mechanism to overcome a defect in the philosophical meaning of a democracy that takes the position that an individual’s minority vote is a tacit (implied) consent to be bound by the majority position. That goes for all constitutions or CC&Rs, or amendments, or to any other contract requiring the approval of a group of individuals.

In general, tacit consent fails because it turns the very notion of consent on its head. Since the goal of consent theory is to ensure that government derives its authority from the conscious choice of the individuals it is to govern.[4] (My emphasis).

 Agreement to be bound in HOA-Land

In HOA-Land,[5] tacit consent rules the roost! The national pro-HOA lobbying entity Community Associations Institute (CAI), the state legislators and the courts all have upheld the tacit consent legal doctrine as binding. In opposition, Keith Wittington speaks on the concept of popular sovereignty,

“Tacit consent purports to provide a rationale for obligating those of us, by chance or choice, have not made their approval of the government explicit. . . . Perhaps most significantly, we are taken to have consented tacitly to government action if we continue to vote for government.”[6]

Consequently, when your HOA says the majority rules since it represents the will of the owners just remember it’s just a means to grant the board the authority to govern. Representative democracy does not reflect the will of the people. Too easily the BOD, the government, rules as if it were the sovereign ignoring any responsibility to represent the genuine collective views of the people.

This is accomplished by rigging the HOA rule making and election processes that make no attempt to be fair and just procedures that reflect the will of the people as honestly as possible. It cannot say it truly attempts to represent any dissenting individual’s wishes, desires or views.

Intent of Commentary

I write this Commentary in the hope that HOA members will understand the true nature of the HOA governmental structure, which is not democratic; in the hope that they will no longer fall prey to the falsehoods of a democratic government and not accept that the BOD is here to help the HOA succeed in the best interests of the members. The BOD has assumed the position of sovereign and, like an emperor or king, can do no wrong if the members allow it.

 

References

[1] George K. Staropoli, “HOA representative government and consent of the governed”, HOA Constitutional Government (2019); “HOA Common Sense: rejecting private government (2013); “Buyer ‘Truth in HOAs’ Disclosure Agreement”, HOA Constitutional Government (2011); “The Invisible, yet binding, HOA “agreements’”, HOA Constitutional Government (2007).

[2] Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.

[3] Randy Barnett, Restoring the Lost Constitution, Princeton Univ. Press, (2004).

[4] Keith E. Whittingham, “Chapter 5, Popular Sovereignty and Originalism,” Constitutional Interpretation, Univ. Press of Kansas (1999).

[5] See Citizens For Constitutional Local Government: The national pro-HOA lobbying entity Community Associations Institute (CAI), the state legislators and the courts all have upheld this

[6] Supra n. 4.

 

Published by

HOAGOV

"The Voice for HOA Constitutionality". I have been a long-term homeowner rights authority, advocate and author of "The HOA-Land Nation Within America" (2019) and" Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

9 thoughts on “HOA consent to agree vs. “the will of the majority””

  1. Thank you for these commentaries. I think we need to get more homeowners living in HOA’s to be aware of what their HOA Boards are doing. But while I certainly agree with your premise that HOA’s _should_be_ more democratic, I disagree that the change we both seek will come simply for the asking. I think the real change needs to come by first recognizing the difference between a government like a state or a nation and a corporation, and hence the difference between a constitution and CC&Rs. The CC&R’s are not intended to be democratic. Rather they are equitable servitudes, i.e., more like a contract. And membership in a HOA is more akin to being a shareholder in a corporation, than being a citizen in a republic. That’s the real problem…that homeowners in a HOA are treated like shareholders of a corporation rather than as citizens of a governmental agency. Once we all recognize the problem we can start working towards a solution…we need a totally different structure! Instead of an corporation for an HOA, we need to create a new form of organization different from a stock corporation and more like a local governmental agency with a constitution, instead of CC&Rs.

    1. Very well put. Getting the members to understnd the difference between HOA governance and municipal governance has been one of my objectives. They must come out of the cave into the light, to use Plato’s cave allegory.

      I am aware of a large active adult HOA in Arizona that has adopted an amendment approval procedure that is open-ended until the amendments are finally approved, whenever. Its been over 9 months already and still short some 4%. The unconscionable procedure does not allow for a NO vote, which can only be expressed by not submitting a Consent Form. Consent forms are legal per the CC&Rs as a binding vote. The accompanying BOD statement implies that not submitting a Consent Form is harmful to the HOA.

      Interesting isn’t it? “Consent” form to imply a consent to agree and be bound. Its an outright con job and dirty tricks played on an unsuspecting membership. They need to be educated badly. All HOA members need to be educated ASAP, and not by the propaganda from CAI’s School of HOA Governance (my appellation).

      How about them apples??

      1. George, I’ve heard from quite a few homeowners who describe the very same “consent” process for amendment to CC&Rs. The system is rigged to make it difficult or impossible to vote in the negative. And the voting is kept open indefinitely, until the HOA collects enough of the YES votes to consider the CC&Rs “amended.”

        The other questions:
        Who is collecting and tallying these votes?
        Who is NOT allowed to vote — whose votes are thrown out due to not being in “good standing” with the HOA?
        Is the voting system itself reliable?
        How are the votes allocated? Do a small number of investors (or a developer) own a whole bunch of properties and their corresponding votes?

      2. First, it’s my strong belief that CAI national coordinates policy, court holdings, and programs, like how to get around lack of sufficient participation to obtain approvals, to all chapters. People must stop underestimating CAI HQ’s importance! If you got a bent to sue for RICO, CAI’s repeated intentional activities to obtain $$$ for their members through increased patronage by unsuspecting HOAs, like above, warrant a RICO challenge.

        Second, if you please, too many questions. 🙂 The HOA is sophisticated enough to give the appearance of propriety through open meetings, talk to the board, etc., but nothing material ever occurs. I pointed out to them the unconscionable procedure in violation of election/amendment standards and its failure to adhere to Robert’s Rules, that its CC&Rs oblige them to, fell on death ears along with the “sounds of silence” from the members. Like Trump, it’s playing to their fears, desires and wishes to get their undying loyalty.

      3. Let’s start the New Year off on the right. I will role play, using my own words, the views of the BOD.

        “The members have elected us to represent their general interests. They have also agreed, as we do, that the general interest is measured and reflected in the vote of the majority of the members as the “will of the members.” They have agreed to be bound by this expression of the general will.

        “However, since the members have also agreed that they will abide by our decisions since we are here to function in their best interests. Consequently, we really don’t need to have a vote. The voting process is required by law and a formality of the CC&Rs; for all intents and purposes it’s just window dressing.”

        I don’t accept this view that can explain their sham election procedure. Do you?

    2. Edward… you wrote:
      “…membership in a HOA is more akin to being a shareholder in a corporation, than being a citizen in a republic. That’s the real problem…that homeowners in a HOA are treated like shareholders of a corporation rather than as citizens of a governmental agency. “

      Yes, that’s very true. However, it’s even worse than that, because our esteemed state legislators (across the U.S.) chose to enable these corporations, their developers, and their “homeowner” boards with special powers reserved for *real* government.

      I cannot think of any other corporation that has the power to fine its shareholders for noncompliance with the “contractual” CC&Rs (and board enacted rules) that we supposedly “consented” to follow.

      Nor can I think of any other corporation that has the power to foreclose on one’s home/private property to collect a lien — when the corporation has no real financial interest in the home. It’s not actually collateral, as is the case with a lender, or perhaps a contractor that made repairs or improvements to the home. (As in a mechanic’s lien)

      Rather, the home in an HOA is a privately-owned ASSET that the HOA holds hostage to force owners to pay their “fair share” and them some!

      The HOA-industry treats assessments and fees (and fines that become de facto HOA assessments) as TAXES that must be paid to the HOA No Matter What. Even if / when the HOA fails to uphold its contractual obligations!

      So an HOA is actually a hybrid between a “business/corporation” and a hyper-local, very non-democratic (often tyrannical) “government.”

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