HOA Podcasting trial

The use of video by Raelene Schifano, a great idea, made me investigate podcasting that was something I had wanted to do for some time. I’ve started a trial run beginning with this post; all posts that I designate a podcast will go to al subscribers automatically.

I will start with oldies but goodies from my earlier videos produced from Florida and Arizona legislative videos, then reading of select Editorials/Commentaries for audio podcasts.  They will be 10 minutes or less.

Now, understand that I am an Italian and we have, I believe, a genetic disposition to mumble.

Let’s see how it goes.  I may have to edit this post as it’s my first attempt.

High RWA followers can be found in HOA members

This commentary is a copy of my Amazon review of Robert Altemeyer’s 2007 book, The Authoritarians.  “RWA”  is the author’s term for Right-Wing Authoritarian followers, where the term ‘right-wing”  is used to designate people who “traditionally submit to authority.” Altemeyer writes,

Followers submit too much to the leaders, trust them too much, and give them too much leeway to do whatever they want–which often is something undemocratic, tyrannical and brutal.

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 conduct of the BOD and numerous members echoed the behavior described by Altemeyer in the opening chapters of his book: a defense of the board, attacking the “whistleblower,” refusal to discuss, or debate or hear any opposition, with the ultimate dogmatic final defenses coming into play.

Reading the opening chapters of The Authoritarians immediately brought to mind the conduct of HOA members. Chapter 6 on legislative RWAs also hit the button since state legislators fell into the same defense of HOA-Land (the fragmented collection of HOAs across the country) with a dogmatic reaction. Chapter 7 on “What to do” was not surprising as I’ve attempted his short-term suggestions and failed just as Altemeyer stated. If I had been aware of Altemeyer 10 years ago I would have saved a lot of time.

My own analysis of this blind obedience is presented in my book, HOA-Land Nation Within America, (Part 1, “The Cultural Dynamics of HOA-Land”) and fell short of making a solid case for this behavior. HOA right or wrong rested on the pro-HOA national lobbyist indoctrination into its authoritarian model of HOA governance. Altemeyer gives me solid ground to explain this behavior and his suggestions on how to combat it in the long term.

What is needed to confirm my analysis, however, is to run the RWA scale against HOA members and BODs, and to survey their views on a number of HOA aspects, as Altemeyer did with his students and state legislators.

If you truly want to understand how HOA-Land is undermining American democracy, The Authoritarians explains the contributions by the majority of the 23% Americans living in HOAs. He offers a path to returning to the fundamental values and principles of The Founding Fathers.

 

HOA representative government and consent of the governed

George Washington wrote in his Farewell Address (1796), the Constitution “is the offspring of our choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles . . . .”  The Declaration of Independence asserted “that to secure these [inalienable] rights Governments are instituted among men, deriving their just powers from the consent of the governed.”

These two quotes contain the fundamental principles of representative democracy adopted by means of a social contract, the Constitution, which are freedom of choice, ”just powers,” and “consent of the governed.” By virtue of these fundamental principles of democracy, HOAs cannot be considered as democratic governments. Period!

In his article explaining the meaning of the Constitution,[1] Edwin Meese III explains that “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.” 

In order for HOA governments to be just, legitimate and compatible with the Constitution these fundamental principles must be honored and supported. HOA “constitutions,” those CC&Rs, are not compatible with the US Constitution.

Meese further addresses the differences between “consent of the governed” and “will of the majority” that is a pro-HOA mantra. “The ‘consent of the governed’ describes a situation where the people are self-governing in their communities . . . into which the government may intrude only with the people’s consent.”

He explains that the “Will of the majority” is a political mechanism for decisions to be made by the government. In other words, the BOD makes decisions on behalf of the members based on its view of the majority will or some survey of the members. In short, in a representative democracy, like that attempted by the HOA legal structure, not all of the members are in agreement with or consent to the decisions of the BOD. It 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.

Meese contends that the Founding Fathers[2] understood this weak point in a democratic government and the need to “insure domestic tranquility.”[3]

[A] government [must rest] not only on the consent of the governed, but also on a structure of government wherein the views of the people and their civic associations can be expressed and translated into public law and public policy. . . . 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.

The structure of HOA governance is not based on and contradicts fundamental American principles and traditional values.  Furthermore, the CC&R are not even based on contract law 101 with its requirements for freely entered into, full disclosure, and explicit agreement to be bound,  but on the real estate doctrine of equitable servitudes.

To learn more about your loss of these rights and freedoms see The HOA-Land Nation Within America.

 

References

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

[2] See in general, The Federalist Papers, #51, James Madison who explained, “Justice is the end [goal] of government. It is the end of civil society.”

[3] Preamble to the Constitution.

Illinois court spells out HOA BOD fiduciary duties

First, let me point out to many HOA directors that the HOA is not a social club, but is a binding contractual relationship between the BOD and the members.

BOUCHER v. 111 EAST CHESTNUT CONDOMINIUM ASSOCIATION, INC., 2018 IL App (1st) 162233 (Appellate Court) concerning the fining of a member while withholding material facts.

¶ 35 Directors of a condominium association owe fiduciary duties to unit owners similar to the duties corporate directors owe to shareholders, insofar as the unit owners trust the directors to use the owners’ money for maintenance, repair, and improvements to the building. The unit owners and residents also entrust the board to make decisions on behalf of all members of the association concerning the conduct of association members in and around their homes. . . . The high degree of trust the members must accord to the association imposes on the directors very strict fiduciary duties, particularly with respect to decisions concerning the unit owners’ and residents’ conduct in their home.

¶ 36 Thus, each board member here has strict duties to treat the unit owners “with the utmost candor, rectitude, care, loyalty, and good faith—in fact to treat [them] as well as [he] would treat himself.” . . . . When investigating charges of misconduct against a unit owner, the duty of candor imposes on the board members an obligation “of full, fair, complete, and timely disclosure of material facts.”

¶ 38 The Anderson court found that a condominium association did not properly assess fines upon a unit owner because the association failed to provide the unit owner with an opportunity to be heard in a fair manner. The Anderson court held that before imposing fines, the association had a duty to give the accused unit owner “an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.”

¶ 48 The business judgment rule permits a trier of fact to presume that a corporate board made its decisions “on an informed basis, in good faith and in an honest belief that the actions taken are in the best interest of the company.”

¶ 52 While the declaration may limit liability for business decisions made in good faith, it cannot limit liability for violations of the duties of honesty, candor, full disclosure, loyalty, and good faith.

Analysis of The Homes Association Handbook

Urban Land Institute Technical Bulletin #50 (1964)

OVERVIEW

The reader of this publication cannot but come away with the distinct realization that the authors promoted certain aspects of planned communities while deliberately avoiding a solid presentation of a number of serious concerns. It is a comprehensive manual, except for any discussion of the form of democratic governance of the community, for the mass merchandising of a profit-making business enterprise. Not only does this 422 page publication promote the selling of planned communities to the public, the federal government agencies, local governments, the mortgage companies and to the Realtors, it provides sample Declarations, Articles of Incorporation and Bylaws for use by the attorneys for developers(1). This use of sample forms(2) (similar to the legal forms that can be found in any legal research library) serve as guidelines and is a common practice used by the attorneys, which explains the commonality of many of the most oppressive and harsh terms and conditions imposed on homebuyers.

Yet, the word “democracy” is mentioned only a handful of times, and in the context of democratic form of leadership as with,

The other [as opposed to a bureaucratic style of leadership] requires more participation in order to give members a feeling of satisfaction with association operations; it may be called the ‘democratic style’. (3) [emphasis added].

And, when the Handbook addresses specific covenants for inclusion in the Declaration for the developer turnover of the association to the homeowners,

It is our conclusion, however, that generally it is unwise to plan for the selection of the management of a homes association by something less than a fully democratic process (See Chapter 15).

However, Chapter 15, “Creating the Association and its Facilities”, simply deals with a variety of non-governing topics, and includes marketing techniques as well as weighted voting in favor of the developer and benevolent paternalism by the developer controlled board.

Another example of the complete disregard for the constitutional and property rights of the homebuyers are the guidelines for handling the priority of liens that the authors felt was needed to protect the interests of the developer and the mortgagor, and to insure the continued existence of the corporate entity proposed to manage the planned community, the “automatic homes association”(4) . While this Handbook recognizes the problem with the timing of when the covenants running with the land become binding, at the time the developer sells the first lot, it advises that the states will protect the HOA from any homestead exemption because of this priority of liens(5), but urges the need to insert wording to grant the mortgagor a priority lien before this “developer” lien(6). The home-buying public protections, as was the intention of the various state legislatures when creating the homestead protection, was intentional disregarded by the advertising of this technical oversight.

Over the 42 years since the publication of The Homes Association Handbook, it has become the “bible” for the mass merchandising of planned communities with the accompanying affect on American society, its values and the loss of individual property rights, and the loss of fundamental rights and freedoms upon which this country was founded. The Handbook was supported by several federal agencies and real estate interests(7), and continues to be supported by these same entities along with state legislatures and local municipalities, with the same apparent disdain for the protection of American liberties and freedoms.

The mantra of “less government intervention”, this call for a laissez-faire policy by reputable libertarian public interest firms, masks the prevalent protectionism of planned communities by the states and their failure to protect a segment of society from the predator marketing tactics of the real estate industry.

Notes
1. Appendices F, G, H.
2. Appendices K, L.
3. In Chapter 16, Leadership Style, Skill and Sources, § 16.2, Bureaucratic of Democratic? It May Depend on Common Facilities.
4. Term used for today’s mandatory membership association.
5. “We believe that the lien of assessments will, in all states, be recognized as superior to and unaffected by the homestead exemption”. P. 322.
6. “In absence of an express provision altering priorities, the court held that the lien of the assessments was superior to the lien of the mortgagor . . . a suggested provision dealing with priorities may be found in Appendix F.” p. 321.
7. From the cover page: the Federal Housing Administration, US Public Health Service, Office of Civil Defense, Urban Renewal Administration, Veterans Administration, and the National Association of Home Builders. The Urban Land Institute was formed in 1936 as a research division of the National Association of Real Estate Boards (now the National Association of Realtors) under the name of the National Real Estate Foundation (see generally, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, Donald R. Stabile (Greenwood Press 2000).