Laws without enforcement are just recommendations

In response to a post by Maria Winlet on the FB page, “HOA Reform – stop the abuse”,  reporting an article by Jessica Boehm of The Arizona Republic, I posted the following on the FB page:

“Want to stop this flagrant abuse and lack of homeowner protection by pro-HOA biased legislation, here in az or in any other state? Let’s hope that the uniform law commission — creator of UCIOA and its failed 2008 bill of rights version — agrees to pursue a legitimate bill of rights focused on limiting HOA government and protecting member rights, as is the intent of the constitution’s bill of rights. Set to decide this Oct. 29th. * * * * the ULC scope committee is handling the review. Timothy Berg is the committee chair. You can send an email to info@uniformlaws.org attn T Berg with a reference to member bill of rights. They have my history of HOA member bill of rights as posted here and on my website. We must offset CAI’s influence.”

All advocates and homeowners need to do their part if substantive reforms are to become real.

Will ULC pursue HOA Member Bill of Rights?

“Can private parties enter into contractual arrangements, using adhesion contracts and a constructive notice consent, that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?”[1]

In August I commented that I was working with 2 institutions on a Member Bill of Rights.[2]

“Currently, I am working with two leading institutions concerned with state laws and the constitutionality of the HOA legal  structure. Addressing the Bill of Rights issue is relevant to conducting necessary research and studies. A Homeowners Bill of Rights would be a major step toward the equal protection of the laws for members of HOAs.

“As a result of my proposed research by  independent, objective researchers,  the law will be clarified and all parties set straight as to their rights, and on the legitimacy and validity of independent private governments in America.”

The Uniform Law Commission  (ULC) will decide on the 29th whether or not to undertake a study of my proposal for  meaningful revision to its UCIOBORA (2008).  It’s composed of only attorneys appointed by state legislators and are pro bono.  I must call to your attention the long established presence of CAI at ULC and with respect to UCIOA.

I believe that ULC will move ahead and make the Constitution and state laws living documents reflecting the overwhelming evidence for the need to admit that HOAs are invalid ab initio — from the very start — agreements and are unconstitutional.  

Notes

[1] The “end of denial” of unconstitutional HOAs, August 5, 2020.

[1] HOA Bill of Rights redux, August 29, 2020. Updated, HOA bill of rights history updated Sept. 13, 2020

HOA Bill of Rights redux

 I spent the last few months working on a revitalization of a long forgotten topic: Where is the HOA member Bill of Rights?

A brief history

In 1994 Evan McKenzie said it plainly, and is true today,

“T]he property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander. . . . [Consequently,] this often leads to people becoming angry at board meetings claiming that their ‘rights’ have been violated – rights that they wrongly believe they have in a [HOA]. (p. 148).”[1]

In 2000, before the Arizona Legislature’s HOA hearing committee I made an appeal for a member bill of rights:

“[Homeowner rights advocates] first looked to the existing government, the HOA Board, and having failed to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association and its controlling document, the CC&Rs. What is needed is an inclusion of a homeowners Bill of Rights and the removal of such onerous provisions that make the homeowner nothing more than an indentured servant, living at the suffrage of the board – pleased if the board is benevolent; living in fear if the board is oppressive.”[2]

In 2005, some 5 years after my introductory statement to the Arizona Legislature, HOA member rights — an HOA Bill of Rights, a constitutional issue — took hold.  Nothing developed until The California Law Review Committee (CLRC), in 2005, timidly announced a “Chapter 2, Members Rights, Article 1, Bill of Rights,” in its preliminary draft to revising the applicable Davis-Stirling Act.  It immediately disappeared from the initial draft of revisions, but upon repeated exchanges on homeowner rights by the late Mrs. Elizabeth McMahon and Donnie Vanitzian, and yours truly,

CLRC finally responded in 2005: “CLRC responded with, ‘However, a bill of rights would probably go beyond the substantive rights that are currently provided in the law’ (MM05-03),” and,

2008 “George Staropoli objects to the lack of any substantive extension of homeowner rights. In particular he objects to the lack of any provision addressing the relationship of CID law to the state and federal constitutions. See Exhibit p. 1. As indicated at Exhibit p. 2, Mr. Staropoli first raised these issues in 2005 and was informed at that time that they were beyond the scope of the recodification project. (First Supplement to Memorandum 2008-12).”

In July 2006 AARP released its A Bill Of Rights For Homeowners In Associations: Basic Principles of Consumer Protection and Sample Model Statute, authored by Texas attorney, David A. Kahne.[3]

In 2007 urged the need for an HOA Bill of Rights, citing the intents and purposes of The Preamble to the US Bill of Rights:[4]

THE Conventions of a number of States, having at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:  And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution:”

In 2008, after a few years drafting, the Uniform Law Commission produced it bill of rights, Uniform Common Interest Bill of Rights Act (UCIOBORA) as a result of pressures from homeowner rights advocates, AARP, and others to provide homeowners with a bill of rights.[5]

“[ULC acknowledges] the difficulty drafters in the States may encounter in integrating any new adoption of the existing Uniform Acts with the laws that may already exist in a particular state.  For these reasons, ULC  promulgated a free-standing and relatively short Uniform Act that addresses all of the ‘association versus unit owner’ issues touched on during the drafting of the 2008 UCIOA amendments.” 

Criticism followed. In short, UCIOA wasn’t selling.  It seems that UCIOBORA is the sad result of the political motives to get UCIOA selling again. It’s a document that does not at all read like the US Bill of Rights, or any state constitution’s Declaration of Rights (state constitution equivalent of the Bill of Rights), or even the Declaration of the Rights of Man and Citizen (France, 1793).  Far from it.  Rather it reads like your current CC&Rs and UCIOA with a number of concessions to reality. 

The next phase

Currently, I am working with two leading institutions concerned with state laws and the constitutionality of the HOA legal  structure. Addressing the Bill of Rights issue is relevant to conducting necessary research and studies. A Homeowners Bill of Rights would be a major step toward the equal protection of the laws for members of HOAs.

As a result of my proposed research by  independent, obejective researchers,  the law will be clarified and all parties set straight as to their rights, and on the legitimacy and validity of independent private governments in America.

Notes

[1] Evan McKenzie. Privatopia: Homeowners Associations and the Rise of Private Residential Government, Yale Univ. Press, 1994.

[2] Homeowner’s Declaration Of Independence, George K. Staropoli, statement to the Arizona HOA Interim Hearing Committee, Sept. 7, 2000.

[3]AARP HOA Bill of Rights.”

[4] See “Why is there a need for a Homeowners Bill of Rights?,” ,” George K. Staropoli, HOA Constitutional Government.

[5] See in general,  “co-opting the HOA ‘homeowners bill of rights.’” and  “UCIOBORA: an attempt at justice for HOA members,” George K. Staropoli, HOA Constitutional Government.

 

The “end of denial” of unconstitutional HOAs

Ibram X. Kendi’s article, “The End of Denial,” appears in the September 2020 Atlantic Monthly. While Kendi argues that the upsurge in the denial of racism is a major step to ending racism in America, I can expand upon this mindset shift, this reorientation,  to ending the denial of the unconstitutionality of the HOA legal scheme and model of local government. This mindset shift will produce the broad, substantial reforms to the current prejudicial view favoring authoritarian,  private government HOAs.

Applying Kendi’s view to HOA constitutionality, Kendi urged “The American people [to] give policy makers an ultimatum: Use your power to radically reduce inequity and injustice, or be voted out”; and that “the American people [must] demand equitable results, not speeches that make them feel good about themselves and their country.”[1]

I have proposed a plan to accomplish this HOA mindset shift,

“Restructuring the HOA-Land Nation  requires a cultural change in in the way of life of members; and an appropriate change in attitude by  state legislatures, the people and the home buying public.”[2]

and describe the underlying HOA social and political culture,[3]

“This HOA-Land Nation Within America white paper challenges, confronts, and exposes the self-interest bias by pro-HOA stalwarts, and contains authoritative documentation and evidence as well as statements used in this indoctrination process.”

The question that I posed to the policymakers, the constitutional pundits, and Arizona Legislature as far back as 2006 remains long unanswered:

“Can private parties enter into contractual arrangements, using adhesion contracts and a constructive notice consent, that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?”

Following Kendi’s lead, it is well beyond time for the denial of unconstitutional HOAs to end. It remains in the hands of Americans to demand that the state and local governments, the policymakers, and the constitutional pundits restore full citizenship to Americans living in authoritarian, private governments functioning outside the Constitution.

References


[1] “Ibram X. Kendi on ‘The End of Denial’”, Press Room, The Atlantic Monthly, August 5, 2020.

[2] George K. Staropoli,  A Plan Toward Restoring the HOA Model of Governance, StarMan Publishing (2019). Amazon.com: https://www.amazon.com/dp/b089yvpcwp.

[3] George K. Staropoli, The HOA-Land Nation Within America, StarMan Publishing (2019). Amazon.com: https://www.amazon.com/dp/b07r6xc1yt.                               

How authoritarianism operates in an HOA

The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. 

CCHAL[1] argues be careful of   “’rules’ put in place in the name of ‘health and safety.’  Yes, some – but not all – may be necessary, but the pandemic creates an environment for putting in place some repressive rules too.” And reading the Golden Rain proposed rules, yes, in my opinion also, they are repressive.

 1. Pay a $500 deposit to get the ball rolling;

2. Apply for a permit at least three days before a planned protest;

3. Pick a maximum one-hour time slot during the day for the demonstration;

4. Ensure all participants social distance and stay out of roadways;

5. Plan on paying for any damage and cleanup costs;

6. Host protests only in an area bounded by three roads.

Proposed only rule 4 can be argued as in the interest of members health, safety and welfare as the GR CEO stated to the East Bay Times “This comes back to safety.”[2]  Rule 5 comes across as intimidation as this topic is already contained within the governing documents, and assumes violence will occur. According to the article, indicating another overly broad sweep at restrictions, GR’s intent was directed at dealing with protestors, as occurred in May in regard to BLM, yet the rules apply to any gathering of members. Rules 3 and 6 appear to be arbitrary restraint on free speech.

Rule 1 is punitive and is in violation of California law enacted in 2017, SB 407,[3] as pointed out by CCHAL. In general, the GR board/trustees seem to have ignored the law and cannot say that they didn’t know the law.

According to East Bay, “Golden Rain CEO Tim O’Keefe told the committee that the Davis Sterling Act doesn’t apply here because the foundation is a private organization, not a ‘common interest’ area like a homeowner’s association.”  That’s an unbelievable and irresponsible falsehood by the GF CEO!  In the 2017 directly involving Golden Rain, the appellate court held,

The court found that GRF is an ‘association’ subject to the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.) (the Davis-Stirling Act). fn. 1 We agree, and affirm.”  (Golden Rain Foundation v. Carol Franz, 163 Cal.App.4th 1141 (2008). (Plaintiffs were Leisure World members).

HOA members should understand that the common defense of BODs is “upon advice of attorney,” and in this case we hear that “the proposed rules had been reviewed by the organization’s attorney.”[4]  Are you aware of attorney rules of professional conduct?  You would be surprised what they have been getting away with as I inform readers in my post.[5]

Two things stand out in my mind, from years of studying and analyzing BOD motivations and defenses, many times supported by the HOA attorney’s opinion: these HOA boards/trustees are rogue BODs functioning with complete disregard of the laws.  HOA members BEWARE of your BOD and the opinions of its attorney!

Relevant sections of SB 407 include:

4515.  (a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.

(c) A member or resident of a common interest development shall not be required to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy, in order to use a common area . . . .

(d) A member or resident of a common interest development . . . may bring a civil or small claims court action to enjoin the enforcement of a governing document.  The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.

There is no legitimate justification for GF’s proposed rule changes except to assert its power and control over the members. In general, including GR, HOA boards are authoritarian and supported by too many members who are authoritarian followers.  In order to successfully deal with the unjust powers and authority of BODs,  the legislators, the public, and HOA members in particular  need to read and understand the social and political culture of HOAs. Visit my posts on authoritarianism in HOA-Land.[6]

References


[1] Marjorie Murray, email letter of July 26, 2020,  Center for California Homeowner Association Law (info@calhomelaw.org).

[2] Annie Sciacca, “Want to protest at Rossmoor? Schedule it during business hours,” East Bay Times, July 10, 2020.  

[3] Chapter 236, California Revised Code (2017), SB 407. http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB407

[4] Id.

[5] See my post,  A lesson in professional conduct for HOA attorneys (2020).

[6] George K. Staropoli, HOAs undermine principles of democratic America (2020); Authoritarianism in the HOA-Land Nation (2020).