I’m glad to see former Florida Rep. Julio Robaina becoming active again and appearing on OntheCommons.us with Shu Bartholomew on Oct. 12.
Back in February 2008, at the invitation of Julio, I testified at his Tampa, FL HOA hearing and produced several video clips of the all-day hearing. See this true HOA Reform champion’s in-your-face investigation into HOA wrong-doing. Visit HOAGOV Videos on Youtube.
I find it disturbing that under our federal form of government — national government and state governments – the states have permitted home rule statutes, which stand in contradiction to our federalism under the Constitution. In essence, home rule statutes give local governments extraordinary powers to regulate and control the people within their territory. In my mind, it creates a condition of who’s in control and what entity governs certain events and conditions.
What is home rule? In simple terms, it is a grant of authority and power from the legislature to local communities. Only 10 states allow ‘pure’ home rule statutes that do not required legislative authority beyond granting home rule status. The prevalent version is guided by Dillon’s Rule: It states, “that local governments get their authority, and no other authority, from the legislature enacting general laws and not special laws, much like an executive branch agency.” However, home rule allows for restricted freedoms: “Most states grant a portion of their governing power . . . to establish laws, levy taxes, and administer government on a local level . . . without obtaining legislative approval.””[1]
Given this existing legal mechanism for strong local control, why didn’t the HOA “bible”[2] use this legal doctrine and choose authoritarian private governments? Governments that are essentially outlaw governments since they exist outside the US Constitution. It would be meaningless to argue that outlaw governments are permitted by the Constitution,. Why then is there the need for the Constitution? (A controversary today at the national level).
Keep in mind, this acceptance of home rule doctrine offers a justification for the freedom and independence of HOA governments, except that home rule governments are created by grants of the state legislature and are subject to the constraints and restrictions – local rule only. State legislatures have created this shameful and irresponsible violation of the Constitution and must be made to fix it!
This argument must be advanced in no uncertain terms when seeking all and every HOA reform legislation – the legislature must return HOA governments to the Union of states known as the US of A. In doing so, the special laws for special entities, violating the equal protection of the law, and the mockery of due process (HOA hearings covenants) be replaced with a fair and just due process to protect the members of the HOA.
Let’s put an end to what rights have been denied the membership and what rights are enforceable. All Americans would be subject to the same laws unless the state can justify, which it hasn’t, the need for these constraints on the rights of HOA members.
References
[1] See Anthony C. Nicholas, “A Discussion of Home Rule in Nevada,” February 18, 2010 referenced in HOAs violate local home rule doctrine and are outlaw governments, George K. Staropoli, (2014).
[2] See in general,The Homes Association Handbook (1964): Guide for Creating HOAs (2007) and Analysis of The Homes Association Handbook (2006), George K. Staropoli.
In March 2019 I commented, “California’s SB 323 must be made law not only in California, but in all the states as well!” (CA SB323 a model on fair elections for all states). I congratulate Sen. Bob Wieckowski for championing this needed bill, and Marjorie Murray and her pro-active CCHAL organization that I believe played an important role in passing this substantive HOA reform bill, SB 323.
Fair and just HOA elections is one of my 6 substantive reforms for a truly democratic HOA. (See HOA Common Sense, Democratic elections, No. 5.)
For more info on what CAI is not informing the public and homebuyer, read The HOA-Land Nation Within America.
A little earlier I had commented that HOAs are here to stay, but face strong reforms. It was an appeal for all to get their voices heard and take the HOA-Public Attitude Survey. Allow me to clarify my position.
“HOA” has 2 common connotations: as a model of authoritarian private local government or as the real estate “package” of amenities, landscaping, and certain infrastructure. I have long maintained that the real estate package represents the end but the HOA government model is not the best means to achieve that end. And that state legislators have treated HOAs as independent principalities with their pro-HOA laws and support of de facto governments devoid of constitutional protections for HOA members.
The overwhelming reform legislation across the country presumes and accepts the validity of the governing documents and state laws. This is a loser position!
It implies the acceptance of the legitimacy of legal arguments supporting the governing documents and pro-HOA statutes. Advocates should be denying their validity and constitutionality; by failing to oppose these defensive arguments homeowners have put themselves in the weaker position of, Please sir, can I have some more justice? An example of reform legislation that challenges fundamental wrongs has been summarized in HOA Common Sense and the HOA-Land culture is presented in The HOA-Land Nation Within America .
Example: not only demanding the licensing HOA managers but holding them to the same statutes and rules – not CAI’s standards — as required of city/town manager; holding the BOD to the same standards as city/town councilmen. The constitutional arguments to use include: a violation of the equal protection of the law, holding the HOA as a state actor, or an unconstitutional special “franchise” of the state relating to these real estate “packages.” (“franchise: an authorization granted by a government or company to an individual or group enabling them to carry out specified commercial activities, e.g., providing a broadcasting service or acting as an agent for a company’s products.”
Advocates must not ignore these broad, constitutional arguments but educate themselves to understand them. I am urging advocates and homeowners to follow the path of the Founding Fathers who stopped toying with the Articles of Confederation as unworkable. Rather than continue to make the Articles work, they did away with them and created the Constitution of the United States.
HOA-Land will still be here but which form will it take? Spend another 30 years as before or go for fundamental reforms?
People make a community, not CC&Rs, bylaws, rules or amenities
For the record, I am not a psychologist, psychiatrist, or sociologist. I am skilled in statistical analysis and in conducting social research. (See My Life and Take the Deal on my website, starman.com).
Using psychologist Bob Altemeyer’s RWA scale (Right Wing Authoritarian Followers, not political designation) the respondents were identified (by a Score) as to their standing as an Authoritarian Followers (AF): authoritarian persons cannot exist without substantial followers. The primary intent of the research was to determine why so many HOA members blindly followed their HOA.
The results suggest that the reason for the failure of members to act according to democratic principles and values is the degree to which the “community” is affected by Authoritarian Followers.
Read the report here.
I thought I’d show you what goes on at state legislatures when ”elitist” CAI member attorneys address the committee. (They have stopped speaking before public access government bodies after I informed advocates that whatever they say can be held against them). The video is from AZ in February 2008 and, I apologize, blurry. Just click on the icon at the lower right for minimized viewing.
Speaking is Morgan of Maxwell & Morgan giving the legislators a lesson in constitutional law and democracy. Perhaps he, and all the other self-anointed “elitist” CAI attorneys of CCAL should read my The HOA-Land Nation Within American. What do you think about what he’s saying about HOA democracy and your ability to act in your interests under the CC&RS and the law, that he doesn’t go into detail with. Yes, he should read The HOA-Land Nation.
The video
https://youtu.be/h__jnuSdESY
In the beginning
There was the land,
And the land was good
And the people were happy.
Soon upon the land
Came the moneychangers
In the guise of builders
Of the community.
And the moneychangers said
Behold, the covenants, conditions and restrictions
Were sacred and holy works,
And the people shall flourish and prosper.
Read the complete poem (a repost from 2006) here.
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Get involved: Read The HOA-Land Nation Within America (2019 book). Take the HOA- Public Attitude Survey. Survey asks: Do HOA members differ from the general public?
