America’s homeland: HOA law vs. Home rule law

Why are there private HOA governments when there are home rule, charter governments?

Getting down to the issues of state laws relating to local governments, let’s examine the doctrine of home rule. Under the home rule doctrine local communities are permitted a large degree of independence even to the extent that state legislative action is not necessary. What is home rule? In simple terms, it is a grant of authority and power — of independence — from the legislature to local communities.  (See HOAs violate local home rule doctrine and are outlaw governments; AZ Supreme Court, Tucson v. Arizona, CV-11-0150-PR (2011).)

 All the states have a version of home rule that varies in the degree of independence granted to a local governments and under what terms. Check your state laws under home rule or charter government. Strict states treat the home rule powers strictly as set forth in the statutes, like agency enabling acts. Most states have allowed for wider freedoms to local home rule governments, with some allowing for local government charters functioning as a local constitutions.  In all cases it’s a grant of independent governance from the legislature on local matters.

As an example, Arizona’s Constitution allows for home rule charter governments.

 “The purpose of the home rule charter provision of the Constitution was to render the cities adopting such charter provisions as nearly independent of state legislation as was possible. . . .  ‘[A] home rule city deriving its powers from the Constitution is independent of the state Legislature as to all subjects of strictly local municipal Concern.’”

The masquerade

Given this existing legal mechanism for strong, independent  local control, why was there a need for the creation and approval of, and the support for, private government HOAs?  Could it be as Prof. McKenzie stated in his 1994 book, Privatopia? “CIDs [HOAs/POAs/RCAs] currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent to local governments.”

It’s obvious that it was not to create healthy, productive communities.  Was it a business venture from the start to make profits for the originators masquerading as a public serve and benefit?? Was it for the real estate agents and the home builders, and to cut state government costs?

HOA associations are political bodies

The effective management of a political community, as are HOAs, and remain part of the greater political communities of their state and federal government, necessitates a rejection of the HOA legal scheme and its protectives laws.    There are no legitimate reasons why HOA governed communities cannot exercise effective and productive self-government while  being subject to constitutional law under home rule statutes.

Home rule doctrine existed long before the advent of the HOA legal structure in 1964. That is not to say that it would have solved all problems and be a perfect government, but it would be a government under the Constitution, part of the Union,  like all other forms of local government.  

If the initial 1964 HOA concept had included home rule provisions, then there would be no need for a restructuring.

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.

7 thoughts on “America’s homeland: HOA law vs. Home rule law”

  1. The problem is even more basic than that. HOAs are unworkable, partially because the common interest model breeds apathy and enables corruption. The HOA common ownership model of property governance and management does not require mutual commitment and shared values among co-owners. The corporate legal model has been intentionally designed so that developers, real estate investors, and HOA industry professionals can exploit the system for personal gain. HOAs were never intended to function as social communes, kibbutzes, or religious based communities such as Quakers or Amish – where strong social mores require mutual cooperation, and each person contributes to the necessary work to be done. Instead, HOAs are sold for the perceived ‘benefits’ of exclusivity, shared amenities, low-maintenance lifestyles, increased security, and the false promise of protection of property values.

    1. WE need more hard-hitting, to-the-point posts like yours. To bring about change to remove the long-term indoctrination by CAI – The CAI School of HOA Governance — the public, the BODs, members, the media, and the legislators must be deprogrammed! And that requires exposing the truth and challenging disinformation.

      1. Yes, but how? More and more people only want to avoid buy a house with HOA, because they are too “strong” if you are not lucky.

  2. The key problems in HOAs is lack of transparency and personal self -serving politics. Key concerns for homeowners are the Board types with personal agendas that should not be trusted. They work in the background, set up meetings when they know most owners can not attend or make decisions behind closed doors then ratify them in open meetings to cover themselves and act as if they are complying with the statutes. Most homeowners either do not pay close attention or they decide they prefer to ignore the BODs and not get involved. So the business and fair rules and laws that most normal people follow are not the norm for many HOAs. People need to pay attention and get involved. Apathy destroys communities. New laws need to be promoted and enforced to protect homeowners in a transparent manner.

  3. This post appeared in USA TODAY Opinions Facebook site, Feb. 20, 2022.
    George Staropoli USA TODAY Opinion
    February 20 at 8:55 AM ·
    America’s homeland under private HOA law or public home rule law

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