A brief history[i]
It should be noted when reading this brief history that in 1992 Community Associations Institute (CAI) modified its tax-exempt status from education (501(c)3) to a business trade entity (501(c)6) with increased lobbying rights.[ii]
Prior to 2000
In 1992, Roger Dilger wrote,
For example, most of those who advocate the formation of RCAs HOAs] assume that RCAs . . . incorporate all the rights and privileges embodied in the US Constitution, including . . . the rights of due process and equal protection under the law found in the Fourteenth Amendment;[iii]
In 1994 Evan McKenzie said it plainly, and is true today,
T]he property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander. . . . [Consequently,] this often leads to people becoming angry at board meetings claiming that their ‘rights’ have been violated – rights that they wrongly believe they have in a [HOA]. (p. 148).[iv]
Editors Barton and Silverman published Common Interest Communities in 1994, a report on 12 early HOA (CID) research studies addressing the debate between HOAs as private governments in relation to public government.[v] Their conclusions in regard to the environment and culture of HOAs included:
Our research shows the tension created by combining neighboring and political social relations into this form of organization [common interest homeowner’s association].
This means that the association’s objectives can only be decided on through [sic] discussions among the homeowners. As a result, the homeowners’ association needs to meet the basic democratic standards of openness, fairness, and representativeness to its members.
The model of the informed consumer choosing the mandatory homeowners’ association and its detailed restrictions, the ‘servitude regime’, fails to describe reality.
[T]hey [certain homeowners] reacted with strong, negative emotions to apparent infringements on their own rights as private property owners. These residents treated the governing bard of directors not as trustees of the public interest but as neighbors who had unfair powers over them.
Our findings pf pervasive conflict and fear of conflict, accompanied by apathy and avoidance within the community, run counter to the normal picture of community organization.
Steven Siegel wrote in 1998,
Many RCAs exercise powers traditionally associated with local government. . . . Although the traditional view of RCAs is that each homeowner consents to the regime or chooses to reside elsewhere, Siegel rejects this view and suggests instead that RCAs are the product of forces other than consumer choice, including local government land use policies and fiscal pressure on local governments leading to the privatization of local government services. Because of the traditional view, RCAs rarely have been deemed state actors subject to the requirements of the Constitution. As private entities, RCAs regulate behavior in a way that is anathema to traditional constitutional strictures.[vi]
As early as 1999 homeowner advocates, the late Lois Pratt and Samuel Pratt, made their case for a homeowner bill of rights, writing,[vii]
The association shall exercise its powers and discharge its functions in a manner that protects and furthers the health, safety and general welfare of the residents of the community’[citing NJ law]. . . . In essence, this is the standard that defines the fundamental right of homeowners and the obligation of those in power. Every action of an association must conform to the standard: Does it promote the welfare and protect the rights of the members of the association?
While the topic of ‘Homeowner Rights and Responsibilities’ is frequently presented for discussion – in books, articles, and conferences on RCA management and operations, in state laws, in association by-laws, and in board minutes – the focus of attention consistently turns to the obligations of homeowners, and scant attention is given to homeowners’ rights. To date we have found no document that presents a thorough treatment of homeowner rights.
2000 and later
In 2000, before the Arizona Legislature’s HOA hearing committee I made an appeal for a member bill of rights:
[Homeowner rights advocates] first looked to the existing government, the HOA Board, and having failed to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association and its controlling document, the CC&Rs. What is needed is an inclusion of a homeowners Bill of Rights and the removal of such onerous provisions that make the homeowner nothing more than an indentured servant, living at the suffrage of the board – pleased if the board is benevolent; living in fear if the board is oppressive.[viii]
In 2005, some 5 years after my introductory statement to the Arizona Legislature, HOA member rights — an HOA Bill of Rights, a constitutional issue — took hold. Nothing developed until The California Law Review Committee (CLRC), in 2005, timidly announced a “Chapter 2, Members Rights, Article 1, Bill of Rights,” in its preliminary draft to revising the applicable Davis-Stirling Act. It immediately disappeared from the initial draft of revisions, but upon repeated exchanges on homeowner rights by the late Mrs. Elizabeth McMahon and Donnie Vanitzian, and yours truly,
CLRC finally responded in 2005: “CLRC responded with, ‘However, a bill of rights would probably go beyond the substantive rights that are currently provided in the law’ (MM05-03),” and,
George Staropoli objects [2008] to the lack of any substantive extension of homeowner rights. In particular he objects to the lack of any provision addressing the relationship of CID law to the state and federal constitutions. See Exhibit p. 1. As indicated at Exhibit p. 2, Mr. Staropoli first raised these issues in 2005 and was informed at that time that they were beyond the scope of the recodification project. (First Supplement to Memorandum 2008-12).
In July 2006 AARP released its A Bill Of Rights For Homeowners In Associations: Basic Principles of Consumer Protection and Sample Model Statute, authored by Texas attorney, David A. Kahne.[ix]
Furthermore in 2006,
CAI’s Tom Skiba thinks Staropoli’s logic is flawed. ‘The fact is that by statute, common law, contract, and decades of practice, community associations are not-for-profit entities,’ Skiba says, ‘and are and should be subject to the relevant and applicable business law, contract law, and specific community association or common-interest-development law in each state.’[x]
In 2007 I urged the need for an HOA Bill of Rights, citing the intents and purposes of The Preamble to the US Bill of Rights:[xi]
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:”
In 2007 a currently active CAI member and former President had this to say,
Thus, the question of whether a particular covenant in a contractually-created community violates an owner’s constitutional rights of expression finds its answer in well-established property law jurisprudence.
In 2008, after a few years drafting, the Uniform Law Commission produced it bill of rights, Uniform Common Interest Bill of Rights Act (UCIOBORA) as a result of pressures from homeowner rights advocates, AARP, and others to provide homeowners with a bill of rights.
The Need for a Free-Standing Home Owner Bill of Rights. . . . The reason is that each of these complex Acts has its detractors who have historically blocked adoption of these Acts in any state. . . . [And] of the difficulty drafters in the States may encounter in integrating any new adoption of the existing Uniform Acts with the laws that may already exist in a particular state. For these reasons, ULC promulgated a free-standing and relatively short Uniform Act that addresses all of the ‘association versus unit owner’ [hints at similarity of ‘management vs employees’] issues touched on during the drafting of the 2008 UCIOA amendments.[xiii]
Tom Skiba, again in an unbelievable 2008 doubletalk statement declared:
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.[xiv]
In 2008 Paula Franzese and Steven Siegel wrote with respect to the NJ Supreme Court opinion in Twin Rivers,
The laissez-fare approach to CIC regulation is reflected in the statutory law, which affords exceedingly few rights and protections to homeowners association residents.[xv]
In 2015 Deborah Goonan appealed to homeowners to write their Congressmen about the injustices in HOA-Land.[xvi] Her sample letter included,
“We have become a nation obsessed with property values to the exclusion of traditional American values,” and
“Governance of HOAs is not currently required to be bound by Constitutional law, thereby resulting in a nation where 67 million people are not subject to equal protection under the law. In HOAs, The Bill of Rights Need Not Apply. The resulting inequality contributes to abusive governance, frequent conflict and abuse of the legal system.”
Goonan again in 2020, referencing Arizona’s SB 1412 (held in Rules due to COVID-19 premature session closing) and addressing Florida’s SB 623 (having since failed) wrote,
“It’s a 52-page bill that, among other things, seeks equal protection of Constitutional rights for all residents of HOA-governed communities. . . The Bill of Rights would apply to all Florida HOA-governed communities.”[xvii]
The 2008 Uniform Law Commission’s HOA bill of rights, UCIOBORA, is a document that does not at all read like the US Bill of Rights, or any state constitution’s Declaration of Rights (state constitution equivalent of the Bill of Rights), or even the Declaration of the Rights of Man and Citizen (France, 1793). Far from it. Rather it reads like your current CC&Rs and the basic UCIOA with just a number of concessions to reality”[xviii].
The spirit of the US Bill of Rights must be made to prevail over the HOA-Land Nation.
NOTES
[i] Adapted from “HOA Bill of Rights redux,” George K. Staropoli, HOA Constitutional Government (2020).
[ii] Evan McKenzie, supra n.1, pp. 115 -119; Donald R. Stabile, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, p. 144 (2000). Funded by CAI and ULI.
[iii] Roger Jay Dilger, Neighborhood Politics: Residential Community Associations in American Governance, p. 160, New York Univ. Press (1992). Formerly WVU Prof. Political Science and Director of Political Affairs.
[iv] Evan McKenzie, supra n. 1.
[v] Stephen E. Barton & Carol J. Silverman, eds., Common Interest Communities: Private Governments and the Public Interest, Ch. 13, section, “Private Property and Public Life in the Common Interest Development,” Institute of Government Studies Press, Univ. of Calif., Berkeley (1994).
[vi] Steven Siegel, “The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty years After Marsh v. Alabama,” Wm & Mary Bill of Rights J., Vol. 6, Issue 2 (1998).
[vii] Lois Pratt and Samuel Pratt, A Bill Of Rights For Homeowners In Residential Community Associations (1999).
[viii] Homeowner’s Declaration Of Independence, George K. Staropoli, statement to the Arizona HOA Interim Hearing Committee, Sept. 7, 2000.
[ix] [1] David A. Kahne “AARP HOA Bill of Rights,” AARP Public Policy Institute (2006).
[x] “Call &Response,” Christopher Durso, Ed., Common Ground — July – August 2006.
[xi] See “Why is there a need for a Homeowners Bill of Rights?,” George K. Staropoli, HOA Constitutional Government.
[xii] “Former CAI president reaffirms property law superior to Constitution.” (2007). Article on NJ Twin Rivers decision, 2007; Link to CAI blog not found Sept. 9, 2020.
[xiii] UCIOBORA, Prefatory Note, page 1.
[xiv] CAI CEO Skiba in his April 2, 2008 Ungated blog entry.
[xv] Paula A. Franzese and Steven Siegel, “The Twin Rivers Case: Of Homeowners Associations, Free Speech Rights And Privatized Mini-Governments”, 5 RUTGERS J.L. & PUB. POL’Y 630 (2008).
[xvi] “Let’s Get Some National Attention on HOA, Housing Issues,” Deborah Goonan, Independent American Communities (2015).
[xvii] “Florida Legislature Considers HOA ‘Equal Protection’ Bill,” Deborah Goonan, Independent American Communities (February 7, 2020).
[xviii] See “co-opting the HOA ‘homeowners bill of rights.’”, George K. Staropoli, HOA Constitutional Government (2011).
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