HOA limited-purpose public directors and officers

I just viewed the live Arizona appellate  court oral arguments in Tarter v. Bendt (CA-CV 19-0703 (Ariz.App. Div. 1 (2019)) and found it very informative. I have attended AZ SC oral hearings before but not an appellate hearing.

Bendt’s (defendant homeowner) attorney did an excellent job given the fact that she wasn’t the trial court attorney.  I was very pleased to hear her arguments on limited-purpose public person that I missed over these years.  Her rebuttal on free public speech was excellent!  As you know I’ve posted a few cases on this issue that, in general, addresses the topic that HOAs are public forums subject to free political speech protections – you can criticize your HOA within limits.

limited-purpose public figure is either:

“One who voluntarily becomes a key figure in a particular controversy, or one who has gained prominence in a particular, limited field, but whose celebrity has not reached an all-encompassing level.”

Two examples of holding HOA directors and officers subject to free speech doctrine can be found in Dublirer v. 2000 Linwood Avenue Owners Assn (NJ Supreme Court, 2014) and in Cabrera v. Alam (Cal. App. 4th (2011).

This case, although involving an HOA president’s conduct, Tarter, who is also a lawyer,  is really an issue of defamation by the president against Bendt. The argument by Bendt’s attorney is that the HOA president is a limited-purpose public figure as described above and there was no valid defamation according to law —  no malice. Malice being defined as: knowing that it is false; or acting with reckless disregard for the statement’s truth or falsity.

It is very informative that anyone thinking of suing his HOA should watch the oral arguments and see how harsh and strict the court demands supportable and defensible evidence. And how your attorney must be able to respond to questions by the judges and arguments by the HOA.

A MUST VIEW AT  TARTER. (45 minutes; the last 5 minutes present the public forum argument by Bendt’s attorney).

Rogue presidents: Trump and HOAs

What do I mean by “rogue president”?  I mean  a president who does not know the law and doesn’t care to know it, or who knows the law and just ignores it.  In either case that president is plain and simple an outlaw by functioning outside the law.  Trump and rogue HOA presidents fit my description and are outlaws.

I have often wondered why communities, or at least the strong voice of a faction, government officials and legislatures have supported and collaborated with HOA presidents; just like we have witnessed on the national scene.   And with their attorneys in full support! Obviously in pursuit of personal, self-serving agendas. 

I’ve come to the conclusion that the HOA social and political dynamics are identical as we have witnessed on the broad national scale. I am not sure as to what came first, the chicken or the egg?  To what extend has the HOA independent principality mentality and legal scheme contributed to the national scene? Or are the HOA dynamics just a reflection of the broader culture in America today?

To get a better understanding of the HOA dynamics at play, read:

A Plan Toward Restructuring the HOA Model of Governance

The HOA-Land Nation Within America

Authoritarianism in the HOA-Land Nation

“There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.[1]

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. 

There are some people [authoritarian followers] for whom the system of checks and balances are bothersome and annoying, and dislike the noise and chaos of democracy”.[2]  

“People who score high in authoritarianism, when they feel threatened, look for strong leaders who promise to take whatever action necessary to protect them from outsiders and prevent the changes they fear.”[3]

The HOA is truly a totalitarian democracy.

“A totalitarian democracy . . . retains full power of . . .  the right of control over everything and everyone. Maintenance of such power, in the absence of full support of the citizenry, requires the forceful suppression of any dissenting element except what the government purposely permits or organizes.”[4]

The authoritarianism of HOA-Land [5] is masked by a thorough indoctrination[6] that the real estate subdivision is a democratic community because the members are allowed to vote, as meaningless as it is. It seems that the more predisposed to authoritarian control the more the member acts as a diehard, dogmatic, true-believer in the BOD.

In 2019  I conducted a limited study on authoritarian followers in HOAs following the stablished research procedures[7] to determine the extent of authoritarianism in the HOA  setting.[8]  I found that,

“High RWA followers can be found in HOA members. My concern focused on the blind, to me, acquiescence to whatever the BOD told the members what it wanted approved, especially when it involved amendments to the governing documents. When presented with hard, concrete evidence of violations of the law or governing documents, the majority of the members just gave the BOD a blank check.”

The above chart (responses to 30 questions)  shows the degree of authoritarianism based on percentages: the higher, the stronger the authoritarian presence. “3Q” reflects HOA responses to 3 strict “control” preference questions in the survey, as a BOD member or not. The middle 2 bars reflect all the results from all HOA respondents and the lower 2 reflect HOA members or not – the public. 

The prevalence of authoritarian followers is clearly indicated with respect to the HOA’s “enforcement” attitude. The authoritarian culture of HOA-Land contributes to the decline in American democracy. “[Authoritarians] seek to . . . rewrite social contracts, and, sometimes, to alter the rule of democracy so they never lose power. Alexander Hamilton warned against them.”[9]

This study on HOA-Land authoritarianism is consistent with research findings with respect to the general public and political leanings.[10]  “[Authoritarians] understand their role, which is to defend the leaders, however dishonest their statement, however great their corruption, and however disastrous their impact on ordinary people and institutions.”[11]

References


[1] Verdict” email from Justia.

[2] Anne Applebaum, Twilight of Democracy: The Seductive Lure of Authoritarianism, Doubleday (2020).

[3] Amanda Taub, “The rise of American authoritarianism,” Vox (March 1, 2016).

[4] George K. Staropoli, “HOA political dynamics: totalitarian democracy,” The HOA-Land Nation Within America, StarMan Publishing (2019). J. L. Talmon quote.

[5] Authoritarianism: favoring complete obedience or subjection to authority as opposed to individual freedom..

[6] CAI’s effect on the BOD, the members — especially the loyal “followers” — and the public in general stems from 45 years of indoctrination by means of the CAI School of HOA Governance. See in general, Restructuring HOAs: “CAI School and member benefits” pt. 2 (2020).

[7] Bob Altemeyer, The Authoritarians, 2007.

[8] George K. Staropoli, “Preliminary HOA – public survey report,” HOA Constitutional Government (2019). Links to detailed report.

[9] Supra, n.2, p. 20.

[10] Supra, n. 3.

[11] Supra, n. 2., p. 25.

Lost HOA Constitution webinar complete videos

This post allows access to 3 webinar videos on Restoring the Constitution to HOA-Land. The quality improves as I go on — it’s the content, the material, that’s important to learn and understand.

For best viewing press the ‘expand’ icon (lower right) for full screen viewing. Place cursor over video to select menu.

HOA constitutionality Plan supplement – BOD education

The Plan Toward Restoring the HOA Model of Governance[1] called for both a systemic restructuring of the HOA legal scheme and the need to reorient the BODs and legislators. The long ignored and inexcusable questions of constitutionality that continue to harm members and the greater communities across this country must be exposed, understood and accepted.

hoa-const.jpg

The above picture reflects the rewrite of the Preamble to the Constitution as applied to the HOA-Land nation. It reads,

“We the people of a private HOA, in order to protect property values, insure domestic tranquility, promote the general welfare, and secure the blessings of increased property values to ourselves and our posterity, do ordain and establish this Declaration for the United HOAs of America.”

Why is there a need for board of directors education on HOA constitutionality? Why? Because:

  • HOAs are a form of local government not subject to the Constitution, and have created divisiveness and a separation from the greater public community resulting in member confusion regarding the law and their constitutional rights and protections;
  • the national lobbying entity, CAI, has indoctrinated the legislators, the courts, and the public with its CAI School of HOA Governance program that contains just lip service to constitutional questions, for example,

“A global nonprofit 501(c)(6) organization, CAI is the foremost authority in community association management, governance, education, and advocacy. Our mission is to inspire professionalism, effective leadership, and responsible citizenship—ideals reflected in community associations that are preferred places to call home.”[2]

while opposing the application of the Constitution in its numerous amicus curiae briefs to the courts, for example,

“In light of these statutory, contractual and common law standards protecting the interests of community association members, they need not claim constitutional protection from the conduct of governing boards to exercise their rights with respect to the associations.”[3]

  • The Findings, Section II, Education for Homeowners Associations and Board Members, of the North Carolina HOA study report to the NC General Assembly recommended,

“In order to provide accurate and readily available resources to educate homeowners, board members, and interested persons about the duties and responsibilities of property ownership in an HOA community, the General Assembly . . . to seek reliable and unbiased information available from private entities . . . and provide for published and online documents and programs offering HOA education . . . .”[4]

  • Privatopia: Homeowner Associations and the Rise of Residential Private Government, the 1994 landmark book based on the research of UIC Prof. McKenzie, and highly appropriate today, called the reader’s attention to,

“CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local governments.

“In a variety of ways, these private governments are illiberal and undemocratic. Most significantly boards of directors operate outside constitutional restrictions because the law views them as business entities rather than governments. . . . [They] are inconsistent not only with political theories of legitimacy but with the normal process by which governments are created. . . . Thus these ‘private governments’ may violate the equal protection clause of the Fourteenth Amendment.” (Chapter 6).

  • A Table of Authorities,[5] not all inclusive, supporting the Restoring the Lost Constitution.
  • Unanswered questions on HOA constitutionality:

CAI Common Ground Editor Durso mentioned my 2006 “‘open e-mail questionnaire to CAI’ containing four questions.”  Below is a copy of those questions initially addressed to the AZ Legislature a year earlier.  I never had any answer, either from the Legislature or CAI, nor any debate on the issues.

In a 2011 email to the North Carolina Legislature House HOA Committee I asked, “the legislators, the public interest organizations and policy makers to consider the following questions.” And I concluded with, “I await your reply, or a reply from any of the legal-academic aristocrats.”[6] Still no answer.

    • Can a legislature delegate its functions, not government services but functions, to private entities without oversight or compliance with the Constitution, as required of all government entities?
    • 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?

 A webinar is in the plans that summarizes and follows the materials – the text — comprising the HOA educational series to reorient HOA boards and the public in general. The text is available online under the collection, “Restoring the Lost Constitution to HOA-Land.” Will be coming soon.

Notes

[1] See https://tinyurl.com/sr27yq3.

[2] About Community Associations Institute, April 4, 2020). https://finance.yahoo.com/news/community-associations-institute-cai-provides-181931116.html. April 4, 2020).

[3] CAI amicus brief, Jan. 3, 2013, Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014).

[4] “Study On Homeowners Associations”, Luke A. Rankin, Chair, South Carolina General Assembly (December 18, 2015). (http://www.scstatehouse.gov/CommitteeInfo/HomeownersAssociationStudyCommittee/HOAStudyCommitteeFinalReport12182015.pdf). April 27, 2020).

[5] http://starman.com/m…/restructureHOA/restructure-reading.pdf.

[6] See Too hot for NC HOA committee – withdraws legal-academic “experts, George K. Staropoli, HOA Constitutional Government (Nov. 17, 2011). https://pvtgov.wordpress.com/2011/11/17/too-hot-for-nc-hoa-committee-withdraws-legal-academic-experts/