The Legitimacy of HOA Governance

“To prevent the blessings of liberty to ourselves and our posterity do ordain and establish these CC&R constitutions for HOAs”

[The following is based on Randy Barnett’s book, “Restoring the Lost Constitution”, and the 9th amendment. Just scale down from national level to the HOA community level — it’s the same principle at work.]

The 9th Amendment

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”.

What makes a government legitimate? What makes a law/rule legitimate? When is a person morally bound to obey a law/rule? He answers,

“A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority … constitutional legitimacy can even be seen as a product of procedural assurances that legal commands are not unjust”.”A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just”.

And he speaks of justice by explaining, “the founders’ view that ‘first come rights, and then comes the Constitution’. The rights that precede the formation of government they call ‘natural rights’ … For these are rights that the people possess before they form a government and therefore retain; they are not positive rights created by government”.”

Natural rights define a private domain within which persons may do as they please, provided their conduct does not encroach upon the rightful domain of others. As long as their actions remain within the rightful domain, other persons — including persons calling themselves government officials — should not interfere without a compelling justification”.

And, more directly relating to HOAs where homeowners are assumed to have given their unanimous consent to be governed by the HOA,”If there are some rights that cannot be waived or transferred even by the consent of the right-holders, then the unanimous consent regimes [supposedly HOAs], to be legitmate, must offer procedural assurances that these inalienable rights have been protected”.

In other words, these inalienable rights are independent of any form of government and that a legitimate government cannot take away or restricted. And this is why I cannot over emphasize the important of arguments based on fundamental principles of American government in our efforts to obtain justice.And this is our biggest problem in fighting HOA governance and its legitimacy over homeowners. This bypasses the important question of contractual consent.

Why shouldn’t HOAs be considered local governments?

While I can understand why CAI wishes to keep the current focus that HOAS are contractual and therefore not a government, I believe that any attempt to get equality and justice, cannot be accomplished by a private adhesion contract in favor of money making developers, without a bill of right and without the protection of the US Constitution.

CAI even admits that CC&RS can be judged as adhesion contracts by the courts (as prime designers of the UCIOA they included Section 1.112 that deals with what issues the courts may consider when deciding on the unconscionablility of CC&Rs). Anyone who has read the history of planned communites will immediately see that the intent was not to establish a better form of government leading to a higher degree of domestic tranquility or improved general welfare, but to put $$$ in the pockets of the real estate interests. Maybe that’s why there’s little support for a full written disclosure about living in an HOA.

Every state legislature has the power today to make this happen with a very simple bill. If this were to happen, as it should, we would not be seeing all these efforts at state legislatures to right unjust laws that support private organizations and that restrict the rights anf freedoms of citizens. And, CIA attorneys and management firms would cease to exist, or be subject to the oversight of state agencies as they should be.

Well, keeping it simple, here’s how Black’s Law Dictionary (6th Ed.) defines a government? Note: The term “political unit” means the same as a territory or area with boundaries; such as, country, state, province, county, city, town, village, district, etc. “politics”, the decison-making process of a group of people.

“That form of fundamental rules and principles by which a nation or state is governed, or by which individual members of a body politic are to regulate their social behavior”.”government by de facto: a government of fact, a body actually exercising power and control as opposed to the true and lawful government; a government NOT established according to the constitution”.

And, in Black’s discussion of the meaning of “state” [my emphasis],

“A state or political society is an association of human beings established for the attainment of certain ends by certain means ….What then is the difference between this and other forms of government? The difference is clearly one of function. The state must be defined by reference to such of its activities and purposes as are essential and characteristic”.

“Modern states are territorial; their governments exercise control over persons and things within their frontiers ….”

Planned communities are territorial, also. Their “citizens” must pay assessments and are subject to fines, penalties and loss of property if they fail to obey the “authorities”, the HOA board, and many times, the hired mercenaries, the HOA management firms. As for the legitimacy of the authority, the state receives it from the state constitution that was granted under the US Constitution. Citizens do not have to sign a document to be bound by these constitutions, but HOAs require a contract because they have no legal authority without the contract. This contract and its provisons, backed by statutes and court rulings, make the HOA a de facto government, a state actor. But, as presented above, definitely not a legitimate government where its members have an moral obligation to obey the rules and regulations.

Why shouldn’t HOAs be a local government under the American political system with its protection of our rights, freedoms and liberties? Isn’t that what Amnerica stands for?

Is 'maintaining property values' equivalent to 'the common good' and nothing else need be considered?

Funny, I don’t recall the Preamble listing ‘maintaining private property values’ as an objective of the Constitution.

What is the role of state legislatures in protecting our rights? What rights do citizens have under state laws? What prohibitions are there on legislatures when there are no enumerated rights or restrictions except those that may be found in individual state constitutions?




Let’s look at the political theories going back to Locke’s Two Treatises. (‘Theories’ is used to present arguments and issues for a certain view or position because there is no absolute proof that they are correct. They are just someone’s organized statement of a position).

Prof. Barnett offers the following in his Restoring the Lost Constitution:

“The propriety of the laws made by legislatures is dictated by the rationale for yielding the lawmaking power to the government. ‘?Men, when they enter into Society, give up the Equality, Liberty and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislature, as the good of the Society shall require ? the power of the Society, or Legislative constituted by them, can never be supposed to extend farther than the common good.’ [Locke, Two Treatises]. This ‘ good of society’, however, is no open-ended grant of power simply to do good; it is defined and limited by the rights retained by the people when they surrender their powers of enforcement, and this is what makes it a genuine common good or good for everyone, not merely a segment or fraction of society.”

Barnett continues his arguement with,

“… legislation restricting ‘liberty interests’ is typically defended, not on the ground that such liberty is wrongful, but because the restrictions achieve some desirable social policy or ‘legitimate state interest’. When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can insure that the rights of citizens are protected and that justice holds the balance between the legislature or executive branch and the people. Of course, if legislatures do take pains to regulate the rights of citizens only when it is necessary and proper to do so, he can expect them to be able to justify their actions.”

“Regrettably, our actual experience with legislatures has not been so utopian. For this reason, meaningful scrutiny of legislative and executive branch actions by an impartial magistrate is required if the laws imposed on the citizens are to bind in conscience.”

“How can a proper regulation of rightful activity be distinguished from an improper abridgement of the private rights of the people? As with the federal laws, the key is whether state laws are a pretext for purposes other than the prevention of future or rectification of past rights violations. One sign that a law is pretextual is when it benefits a particular group rather than the general public. Building on the Lockean idea of ‘common good’, courts examined whether a particular law benefited every person in the community as a whole or whether it instead was implemented for the benefit of a majority or minority faction.”

“Specifically, it came to be determined, first, that laws that singled out specific groups or classes for special treatment would withstand constitutional scrutiny only if they could be justified as really related to the welfare of the community as a whole ? and were not seen a corrupt attempts to use the powers of government to advance purely private interests ; and second, that acts that interfered with an individual’s property or market liberty would be considered legitimate so long as they wee not designed to advance interests of just certain groups or classes’ [Gillman, The Constitution Besieged].”

We are all well aware of the strong influence of the special interests on Congress and state legislatures and the difficulty in reducing this influence, or at least giving the public an equal voice. Consequently, continued seeking reforms from the legislatures involves using strong legal arguments that cannot be brushed aside without causing the legislators not to run afoul of the Constitution.

And what about the frequently used argument by the courts that this is good for the entire HOA membership, yet clearly imposing restrictions and financial burdens on a minoriity of members? Is “maintaining property values” equivalent to “promoting the general welfare” and “the common good”, and nothing else need be considered?



Is ‘maintaining property values’ equivalent to ‘the common good’ and nothing else need be considered?

Funny, I don’t recall the Preamble listing ‘maintaining private property values’ as an objective of the Constitution.

What is the role of state legislatures in protecting our rights? What rights do citizens have under state laws? What prohibitions are there on legislatures when there are no enumerated rights or restrictions except those that may be found in individual state constitutions?




Let’s look at the political theories going back to Locke’s Two Treatises. (‘Theories’ is used to present arguments and issues for a certain view or position because there is no absolute proof that they are correct. They are just someone’s organized statement of a position).

Prof. Barnett offers the following in his Restoring the Lost Constitution:

“The propriety of the laws made by legislatures is dictated by the rationale for yielding the lawmaking power to the government. ‘?Men, when they enter into Society, give up the Equality, Liberty and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislature, as the good of the Society shall require ? the power of the Society, or Legislative constituted by them, can never be supposed to extend farther than the common good.’ [Locke, Two Treatises]. This ‘ good of society’, however, is no open-ended grant of power simply to do good; it is defined and limited by the rights retained by the people when they surrender their powers of enforcement, and this is what makes it a genuine common good or good for everyone, not merely a segment or fraction of society.”

Barnett continues his arguement with,

“… legislation restricting ‘liberty interests’ is typically defended, not on the ground that such liberty is wrongful, but because the restrictions achieve some desirable social policy or ‘legitimate state interest’. When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can insure that the rights of citizens are protected and that justice holds the balance between the legislature or executive branch and the people. Of course, if legislatures do take pains to regulate the rights of citizens only when it is necessary and proper to do so, he can expect them to be able to justify their actions.”

“Regrettably, our actual experience with legislatures has not been so utopian. For this reason, meaningful scrutiny of legislative and executive branch actions by an impartial magistrate is required if the laws imposed on the citizens are to bind in conscience.”

“How can a proper regulation of rightful activity be distinguished from an improper abridgement of the private rights of the people? As with the federal laws, the key is whether state laws are a pretext for purposes other than the prevention of future or rectification of past rights violations. One sign that a law is pretextual is when it benefits a particular group rather than the general public. Building on the Lockean idea of ‘common good’, courts examined whether a particular law benefited every person in the community as a whole or whether it instead was implemented for the benefit of a majority or minority faction.”

“Specifically, it came to be determined, first, that laws that singled out specific groups or classes for special treatment would withstand constitutional scrutiny only if they could be justified as really related to the welfare of the community as a whole ? and were not seen a corrupt attempts to use the powers of government to advance purely private interests ; and second, that acts that interfered with an individual’s property or market liberty would be considered legitimate so long as they wee not designed to advance interests of just certain groups or classes’ [Gillman, The Constitution Besieged].”

We are all well aware of the strong influence of the special interests on Congress and state legislatures and the difficulty in reducing this influence, or at least giving the public an equal voice. Consequently, continued seeking reforms from the legislatures involves using strong legal arguments that cannot be brushed aside without causing the legislators not to run afoul of the Constitution.

And what about the frequently used argument by the courts that this is good for the entire HOA membership, yet clearly imposing restrictions and financial burdens on a minoriity of members? Is “maintaining property values” equivalent to “promoting the general welfare” and “the common good”, and nothing else need be considered?



A proposal for the "Muni-zation" of HOAs; Stop developers from granting private government charters

Why are private corporations permitted to “grant” private government charters to organizations that give the power to control and regulate the people within the territorial boundaries of the subdivision? The developers are creating political governments, sometimes as a requirement of a local government, as defined in Black’s Law Dictionary (when such powers are given to the HOA with respect to a territory, making it a political government for all intents and purposes).

What is the purpose of permitting and protecting such agreements through legislation that “sanctifies” these provisions in CC&RS? These CC&R “constitutional charters” that lack protection for the rightsfreedoms and liberties of homeowners living in these planned communities governed by HOAs. This is an issue of constitutionality, of the delegation of private governments unanswerable under the 14th Amendment. Let me offer this quote by Gillman in his The Constitution Besieged to help clarify this point:

“Specifically, it came to be determined, first, that laws that singled out specific groups or classes for special treatment would withstand constitutional scrutiny only if they could be justified as really related to the welfare of the community as a whole ? and were not seen as a corrupt attempts to use the powers of government to advance purely private interests; and second, that acts that interfered with an individual’s property or market liberty would be considered legitimate so long as they were not designed to advance interests of just certain groups or classes’?.

For the detailed proposal see MUNI-ZATION (PDF).