The Land of the HOA

The basis, as I’ve come to understand it, as to why state legislatures and the courts have protected HOAs and ignored our rights, lies in certain theories of economics pertaining to government efficiency in terms of allocating resources, and governmental decisions relating to making a better, happier society. And they are not mainstream American views nor do they reflect the views of our Founding Fathers.

Excerpt from “Land of the HOA” in the April issue of The HOA Citizen–

At one time, many years ago, America lived up to the words of the Star Bangled Banner,

“The Land of the free and the home of the brave”

Today, with the increasing support by state and local governments for private government HOAs that see no evils with making property values more important than our inalienable rights and freedoms, America has come to be,

The Land of the Homeowners Association

Proponents of HOAs believe that it’s their unalienable right to private, corporate, undemocratic governments that promote increasing values, in terms of wealth, to the members of the HOA.

And so this focus on wealth and economics have lured many an unsuspecting homebuyer into not only believing in HOAs, but also into defending them and their undemocratic governance in pursuit of wealth.

This is the carrot that is handed out, but you must also accept the stick as well.

Should the 14th Amendment protections apply to homeowners associations?

These problems and issues with CIDs have existed from their very inception with the publication of the ULI Homes Association Handbook, Technical Bulletin #50, in 1966 and will continue for the next 40 years unless the mental set and attitude toward planned communities undergo a major paradigm shift.

The inescapable conclusion to which the Commission will inevitably be drawn, if our Constitution is to remain meaningful and “that government of the people, by the people and for the people, shall not perish from the earth” and be replaced by the increasing number of private governments, is for CIDs to be subject to the same municipality laws of the state to which all other local government entities are subject. There will again be only one rule of law for everyone.

The following areas must be addressed:

1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens
a. without the same due process and equal protection clauses of the Fourteenth Amendment, and that
b. do not conform to the state’s municipal charter or incorporation requirements, or that
c. do not provide for the same compliance with the state’s constitution, statutes or administrative code as required by public local government entities?

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Excerpts from March 14, 2005 Citizen letter to California Law Review Commission Memorandum 2005-3 on homeowner bill of rights. The complete letter may be found at Rights.

California CLRC proposal for state assistance to HOAs

CALIFORNIA LAW REVISION COMMISSION STAFF MEMORANDUM
Study H-853 March 2, 2005
Memorandum 2005-10
State Assistance to Common Interest Developments
(Staff Draft Recommendation)

See p. 66 for my letter to the Commmission.
CLRC

My second paragraph reads:

“To state my concerns concisely: Any statute, law, agency rule or regulation not accompanied by an enforcement process or procedure is not a statute, law rule or regulation. It’s an empty statement of policy, relying on the goodwill and citizenship of the people to whom it applies. And when in the course of human events, when a long train of abuses and usurpations, pursuing inevitably the same object, evinces a design to reduce homeowners under an undemocratic, despotic form of corporate government over their homes, their private properties and their lives and the lives of their loved ones, restricting the liberties and freedoms given to and enjoyed by other persons not living in a CID, then it’s for the government to provide the necessary oversight and to exercise its rightful and proper police powers to regulate the abusers, and to restore to homeowners in living in CIDs the same rights and privileges enjoyed by all other persons in the state. It is only fitting for the legislature to enact such proposed legislation.”

Calif. Law Review Commission comments on the state of HOAs

SUMMARY OF TENTATIVE RECOMMENDATION
State Assistance to Common Interest Developments
September 2004

Community associations are run by volunteer directors who may have little or no prior experience in managing real property, operating a nonprofit corporation, complying with the law governing common interest developments, and interpreting and enforcing restrictions and rules imposed by a common interest development’s governing documents. Mistakes and misunderstandings are inevitable and may lead to serious, costly, and divisive problems.

The principal remedy for a violation of common interest development law is private litigation. Litigation is not an ideal remedy where the disputants are neighbors who must maintain ongoing relationships. The adversarial nature of litigation can disrupt these relationships, creating animosity that degrades the quality of life within the community and makes future disputes more likely to arise. Litigation imposes costs on a common interest development community as a whole – costs that must be paid by all members through increased assessments. Many homeowners cannot afford to bring a lawsuit and are effectively denied the benefit of laws designed for their protection.

The proposed law would create the Common Interest Development Bureau within the Department of Consumer Affairs. The bureau would educate common interest development homeowners and board members as to their rights and obligations under the law, provide informal assistance in resolving disputes, and as a last resort, enforce the law governing common interest developments.

NJ bill S2016 seeks to hold HOAs answerable under the Constitution

NJ Senator Shirley Turner sponsored a bill to revise NJ’s Condo Act, S2016 (2004).

It can be found at S2016

Section 2 reads, in part:

e. The very nature of a homeowners’ association is to provide governance over and maintenance of the real property of a common interest community that is owned in common by all of the residents. New Jersey statutes require these associations to be formed by the developer, but have not provided the necessary detail to guide these special corporations in carrying out their duties once the control of the community has shifted to the owners. Homeowners’ association governing boards have relied on corporation law to fill in many of the gaps that the “Condominium Act,” or other statutes, do not address. Corporation law, however, is geared towards businesses or charitable organizations. Homeowners’ associations are technically not either; they are, in fact, the functional equivalent of neighborhood governments. Accountability measures are needed to ensure that such quasi-governmental entities are operating democratically and guided by principles of fairness that benefit all of the owner-members of these communities.