Resurrecting the argument for a homeowners bill of rights

This demand for a homeowners bill of rights by homeowner rights advocates had its play back in the 1997 – 2008 period, some 10 years ago. There was:

  • the AHRC’s 1997 bill,[1]
  • Lois and Samuel Pratt’s 1999 bill,[2]
  • my 2000 address to the AZ Legislature[3],
  • the 2006 AARP bill of rights,[4]
  • and my 2008 “Members Bill of Rights” amendment to CLRC.[5]

And there are undoubtedly others that I missed. Deborah Goonan recently re-posted a 2015 article[6] speaking of no Bill of Rights and constitutional violations of the 14th Amendment.  In 2017 the California Legislature adopted a limited bill of rights dealing with member political free speech.[7]

A new look at homeowner rights is needed, one that takes a down-to-earth approach and focuses on the common CC&Rs covenants and bylaws that read like,

  1. If there are conflicts between the provisions of Arizona law, the Articles, the Declaration, and these By-Laws, the provisions of Arizona law, the Articles, and the By-Laws (in that order) shall prevail.
  2. these By-Laws [Declaration] may be amended only by the affirmative vote or written consent, or any combination thereof of Members representing at least 51% [67%] of the . . . votes in the Association.
  3. no amendment may remove, revoke, or modify any right or privilege of Declarant . . . without the written consent of Declarant

Over the years I’ve discovered that the courts have universally upheld the broad amendment covenant as generically stated in (2) above.  The basis of their decisions is the very dangerous and overly broad interpretation that homeowners agreed to be bound[8] by the CC&Rs and bylaws.   Note that (3) above carves out an exception for the Declarant that requires his explicit consent, while accepting the majority rule principle in regard to the members. But, this “acceptance” to be bound by majority rule violates a fundamental right of citizens in regard a governmental “taking” or eminent domain action.

In many instances the courts have required 100% consent when the amendment adds new covenants, covenants not found in the CC&Rs, the most notable being changing from a voluntary HOA to a mandatory HOA.  This would be inconsistent with (1) above that holds that the law of the land prevails, and which of course, the buyer also agreed to. But, CAI comes to the rescue and prevails in the courts that the CC&Rs and bylaws contain valid waivers and surrenders of fundamental rights, even to the extent of accepting implicit (not stated but presumed consent) waivers and surrenders as valid.

Hold on! It is long held legal doctrine that the surrender and waiver of these rights must be explicit, one by one. And that, under contract law, there must be a meeting of the minds with full consent and no misrepresentation in the buying process. I have concluded that,

Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.

The point I wish to make is that the absence of any meaningful bill of rights that genuinely protects the rights of HOA members is ab initio (from the beginning) a rejection of democratic norms and institutions.  The HOA cannot, therefore, be considered democratic by any means regardless of the propaganda by CAI and other pro-HOA supporters.

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis.

. . . .

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable.[9]

Simply unbelievable!  (In face of subsequent advocate criticisms, CAI began speaking of HOAs as a business, and we are seeing more and more statements that when a homebuyer signed his real estate contract, he was actually investing in a business.  Unbelievable!  Shades of George Orwell’s NewSpeak from his novel, 1984, where people are indoctrinated to hold 2 opposing views at the same time, and be at peace.)

What is intentionally absent — yes, intentionally otherwise the renowned CAI layers would have to claim incompetency regarding the law – is a Homeowners Bill of Rights.  Can you imagine that if the HOA framers, those stakeholders, of the HOA concept had actually met and discussed with knowledgeable and informed public that there would be protections for homeowners?  Can you imagine?

What the absent, yet informed public, would have added was a Preamble to an Amendment to the CC&R that would have been like that found in the Bill of Rights:

 Preamble to the US Bill of Rights

“THE Conventions of a number of States, having at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution:”

The basis for the BOR was a distrust of government and the need to further protect the people.  Regarding the HOA documents, the 9th and 10th Amendments, as applied to the HOA legal scheme, would prevent the broad interpretations that have been and are continuing being held by the courts.  No more generalities, except in favor of the members.  If it was good for America over 230 years, it must be good for HOA-Land!

Amendment IX

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

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The 9th Amendment simply says that if it ain’t specified – enumerated — in the governing documents, it belongs to the membership.  No more broad interpretations of waivers and surrenders of rights.  The 10th Amendment simply says that if the members did not explicitly agree to certain HOA powers (delegated to), it belongs to the membership.

This is the argument and approach needed to get a Homeowners Bill of Rights accepted by state legislatures.  It should be a national campaign by all advocate groups in all states for their next legislative session.  There is time to organize and prepare.

 

References

[1] See “Short History” in co-opting the HOA “homeowners bill of rights”, Elizabeth McMahon, 1997.

[2] See A BILL OF RIGHTS FOR HOMEOWNERS IN RESIDENTIAL COMMUNITY ASSOCIATIONS (1999).

[3] Statement to AZ Legislative Homeowners Association Study Committee, 2000.

[4] A Bill of Rights for Homeowners in Associations, AARP HOA Bill of Rights, David Kahne 2006.

[5] Supra, n. 1. “CLRC” is the California Law Review Commission.

[6] Let’s Get Some National Attention on HOA, Housing Issues, Deborah Goonan, 2015 original post.  

[7] A California true HOA Bill of Rights (SB 407).

[8] For a summary of the issues regarding the agreement to be bound position, seeConsent to be governed, No. 4, HOA Common Sense: rejecting private government.  The notes contain very important authorities on this issue.  (In only one case did a court reject this position because it felt that the amendment exceeded the reasonable expectations of the homeowner.  For example, having part of their assessments go toward a private entity unrelated to the HOA).

[9] CAI CEO Skiba in his April 2, 2008 Ungated blog entry.

HOAGOV EDUCATION SERIES: understanding the real lives of HOA members

My purpose for the Education Series, taken from a collection of my Commentaries (WordPress blog), is to present the other side of the HOA legal concept that has been intentional kept hidden from the public, the media, and the legislators.  Homeowners associations (HOAs) — generic for POAs, CIDs, planned communities, and condominiums — have become an institution and are unquestionably accepted as “that’s the way it is.”

Over the years, the general public has heard only the benefits of HOA regimes, but has heard nothing about the means to achieve these benefits. The rationale, I suppose, is that the end justifies the means. This quiet acceptance of the HOA private government regime came to be as a result of aggressive lobbying by the HOA special interests, also known as HOA stakeholders (homeowners not included). The media, that was granted 1st Amendment freedom of speech rights in order to ensure a properly informed electorate, failed its obligations by remaining silent.  Nothing bad, seriously bad, about HOAs is publicized by the media. As you can read in my post on George Orwell’s 1984, the Ministry of Truth (a 1984 agency) parallels Goebbels’ Ministry of Public Enlightenment and Propaganda:

The Ministry of Truth uses control over the education system and the communications media to keep the masses in a state of ignorance and incapable of perceiving the facts of their manipulation. By controlling all sources of information, and playing one ignorant group off against the other, they ensure that effective opposition does not arise. While the masses attempt to make sense of the false reality fed to them in the schools and on the telescreens, the elite manipulators that write the scripts laugh at their confusion.  (Freedom is Slavery, The Modern History Project, April 24, 2015).

The Commentaries listed below present a broad picture of the current conditions, culture and environment relating to living in an HOA controlled home.  Violations of the Constitution’s equal protection of the laws and inadequate due process protections, pro-HOA state laws, legislative support for HOAs, the national business lobbying organization misleading the public that it is an unbiased educational organization, and the HOA attorneys and managers are all presented and discussed in these posts.

For readers who are interested in the history of how HOAs came to be can read my 121 page analysis, with references and legal authorities: The Foundations of Homeowners Associations and the New America.

Become informed.   Please read on.

 READING MATERIALS (click on links to access posts)

 A.    Constitutional issues

  1. HOA Member Declaration of US and State Citizenship
  2. HOA Common Sense: rejecting private government (complete series as PDF)
  3. CC&Rs are a devise for de facto HOA governments to escape constitutional government
  4. HOAs violate local home rule doctrine and are outlaw governments
  5. The unconstitutional delegation of implied rulemaking powers to HOAs
  6. Unconstitutional delegation of power to HOAs
  7. HOA reforms needed to guarantee U.S. Constitutional protections
  8. model HOA regulatory agency bill

  B.   HOA oppression

  1. Why do people harm others in HOAs?
  2. George Orwell’s 1984 is alive and well in HOA-Land

  C.   Community Associations Institute (CAI)

  1. Misrepresentation:  CAI comes with unclean hands
  2. Will the real CAI standup: its contradictory beliefs, pronouncements and goals
  3. CAI: the HOA form of government is independent of the US Constitution
  4. HOA constitutionality will cause the collapse of CAI

George Orwell’s 1984 is alive and well in HOA-Land

thought-policeIn 1949 George Orwell published 1984 where the fictional Oceania (formerly known as England) is a totalitarian state that has instituted a new society designed for the survival of the country.  Oceania had introduced methods and techniques designed to protect the government at all costs:  Big Brother is Watching You; Thought Police (don’t speak out or question, or else); Doublethink, creating the ability of the people to hold and accept two contradictory thoughts at the same time; Newspeak, the official language, replacing English, that redefines words and concepts; Ministry of Truth, the agency of propaganda and historic revisionism; and the Ministry of Love, the agency of regulations and enforcement.

Many can see the parallels and extensions of Orwell’s 1984 in the real 1984, and current world, of homeowner associations (HOAs) — authoritarian private governments.  Let’s take a look.

The principles of 1984 can be identified within the HOA regime: Ministries of Love, the boards and HOA managers, coerce compliance with outrageous fines and claims of violations.  The Thought Police, through1984_big brother the HOA vender organizations and lobbyists, use Doublethink and Newspeak to redefine everyday usage and meanings of words. Newspeak, or simply propaganda — lies and half-truths — to advance one’s interests, is extensively employed to defend the HOA regime. And, of course, there is the ever present all seeing eyes of the HOA — Big Brother is Watching You.

Of course, there are benefits to the state, the community and the residents, including the alleviation of irrational fears of the loss of property values.  But at what price?  At what cost?  At the cost of leaving the American Zone (as expressed by Shu Bartholomew in On the commons.com) and the loss of member rights, freedoms, privileges and immunities protected by the US Constitution and Bill of Rights.

The influence and acceptance of Doublethink has people believing that HOAs are democratic and not authoritarian regimes, because residents can vote – like in Cuba and China. That de facto HOA governments are businesses and not quasi-governments, because it is so declared.  That it’s the members’ fault for not making desired reforms to the HOA legal structure, which contains a very high bar to effective member participation in HOA governance. That the members’ are expressing their individual rights and freedoms by surrendering them and accepting that the authoritarian board speaks for them. However, the board is legally responsible to speak for the HOA corporation in accordance with the CC&Rs that do not recognize the rights of individuals as set forth in the Preamble to the US Constitution.

 Welcome to the New America of HOA-Land

I want you

I want YOU to

Join the HOA-Land Nation, today!

Read the complete paper at 1984

Elysium: the new ‘1984’ of the future

The new Matt Damon movie, Elysium, is an exciting sci-fi look into the future society of 2154.  Social and political commentary is skillfully woven into this action thriller with unsuspecting twists in the plot.  Such words, with ‘native’ dialogue being Spanish, as “undocumented persons,” “illegals,” “citizens,” and even “Homeland Security” are part of the plot, but do not intrude or detract from the entertainment aspect of this well-done movie.

Elysium is a space station orbiting earth built by a mega-corporation and inhabited only by those qualified to be a citizen: having sufficient wealth. Meanwhile the war destroyed, overpopulated earth is inhabited by the “have-nots” living in poverty.  Central to the theme is the lack of medical care for the have-nots. Only citizens on Elysium are entitled to life saving medical treatment.

“Elysium” is the Greek Valhalla where those related to the Gods and the good and heroic go in their after-life.  It was mentioned in the opening battle scene in the movie Gladiator by Maximus’ reference to the Elysium Fields.

Elysium is the modern 1984 view of our future society.