Desert Mountain opinion (AZ) constitutionality – part 2

Introduction

This 2-part Commentary on the H-O-A amendment boilerplate process entails a number of complex constitutional issues that are interlinked.  Discussing one results in discussing another, etc. in order to fully understand the validity of the H-O-A legal scheme.  [quote — ]You can’t see the forest for the trees[  –unquote  ] is the result of this complexity obfuscated by the Restatement and by the national pro-H-O-A special interest lobbyists.

In Part 1 I discussed 5 selected views by the appellate court that I see as constitutional challenges.   Herein Part 2 I present constitutionality challenges in regard to 1)  the bias found in the  Restatement of Servitudes,[1] a legal authority on court decisions and common law in favor of the H-O-A legal scheme, and 2) the freedom to contract doctrine[2] and its bearing on whether people are truly free to enter an H-O-A private government contract.

The Arizona appellate court ruling in Nicdon v. Desert Mountain[3] with respect to a CC&Rs amendment needs to be appealed to the AZ supreme court. In Part 1,  I raised the question of an on color of law denial of fundamental rights to property; on violations of the equal protection of the laws.   

Disclaimer: Understanding that in spite of my 20+ years reading hundreds of federal and state supreme court and appellate court opinions, I am not a lawyer nor am I employed by a lawyer; I only offer my views.

. . . .

Restatement of Property: Servitudes

In Item 5 of Part 1, I raised my concern that the Court relied on the Restatement of Servitudes quoting, [quote — ]A restrictive covenant is generally valid unless it is illegal or unconstitutional or violates public policy[  –unquote  ].[4]  The Restatement (American Law Institute) is accepted as legal authority even though it seems to be advancing ought to be or societal goals rather than reporting the law and factual court decisions.  

[quote — ]The Institute’s mission is [quote — ]to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work.[  –unquote  ] It achieves this goal through the development of Institute projects, which are categorized as Restatements, Codes, or Principles. . . . Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court.[  –unquote  ][5]

The opening sentence above is the heart of the problem.  It presumes that justice is accomplished through ALI’s promotion of current court decisions, which in turn, are the reflection of a bias as  to what constitutes [quote — ]a better adaption to social needs.[  –unquote  ]  It flies in the face of  long standing constitutional doctrine on the legitimacy of the law and the consent of the governed.   It opens up to the controversy regarding the extent to which people may associate and establish contracts under freedom to and freedom of contract.

This 2000 update and marked rewrite began in 1987, 13 years ago. It is now another 21 years of substantive changes in the laws and public policy; H-O-As have now been institutionalized and accepted as [quote — ]this is he way it is.[  –unquote  ]  This is quite clear from the Forward (emphasis added):

 [quote — ]Professor Susan French [Reporter (chief editor/contributor) for this Restatement] begins with the assumption . . . that we are willing to pay for private government because we believe it is more efficient than [public] government  . . . . Therefore this Restatement is enabling toward private government, so long as there is full disclosure . . . .[  –unquote  ]

And we know there is an absence of full disclosure that amounts to misrepresentation.  Sadly, there is evidence of contradictory statements aiding and abetting this misrepresentation even in the Restatement that is used as legal authority by the courts. While the Court quoted comment a of §3.1[6] (see [quote — ]Contractual freedoms[  –unquote  ] below), it omitted comment h, which reads, [quote — ]in the event of a conflict between servitudes law and the law applicable to the association form [its private contractual nature], servitudes law should control.[  –unquote  ]

In addition, while the court referenced §6.10 it unbelievably failed to reject §6.13, comment a, which states: [quote — ]The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law.[  –unquote  ]

Need I say more about securing the [quote — ]better administration of justice[  –unquote  ]?  Certainly not for the affected people — the H-O-A homeowners.  ALI is guilty of bias against the homeowners, the [quote — ]patients,[  –unquote  ] as analogous to the medical profession with its high degree of specialization where, working on the same body, the left hand doesn’t know about, or doesn’t care about, what the right hand is doing at the same time. 

If it is true and believable that laws are to provide justice, as widely proclaimed, the courts and the lawmakers must consider the effects of both hands on the patient. ALI must adjust its approach and remove these pro-H-O-A views and make references to applicable constitutional law.  ALI must also recognize that H-O-As are another form of local government that is not subject to the Constitution, and remove §6.13, comment a. 

The policy makers have failed to understand that the H-O-A CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.

Section 6 of the Restatement, Part D, Governance of Common – Interest Communities, attempts to deal with the governance of H-O-As in general. Section 6.16 addresses representative government.  It does not read at all like the Declaration of Independence, the Constitution, or the Bill of Rights.

Contractual freedoms and consent to be bound

Let’s begin with the excerpt from Desert Mountain opinion  in Part 1(1) linking the binding of the CC&Rs [quote — ]contract[  –unquote  ] by deed acceptance to the implicit consent to be bound in a single quote (emphasis added),

[quote — ]By accepting a deed in the Desert Mountain planned community, the [homeowner]  became bound by the Declaration, including properly adopted amendments. . . . when [a] homeowner takes [a] deed containing restriction allowing amendment by majority vote, homeowner implicitly consents to any subsequent majority vote to modify or extinguish deed restrictions[  –unquote  ].

By this doctrine, contract law 101 is ignored in favor of servitude law, as the Restatement advises  and an implicit waiver and surrender of a fundamental property right is accepted as valid, thereby treating the homeowner as a second-class citizen.  It does not do justice for the homeowner and should be held as an illegitimate exercise of police power by the legislature.

 In Item 5 of Part 1, I also raised the matter of the freedom to contract doctrine as contained in comment (a) of  the Restatement’s §3.1  that I now discuss in some detail here due to its constitutional complexity.

‘‘In general, parties may contract as they wish [freedom to contract] , and the courts will enforce their agreements without passing on the substance . . . The principle of freedom of contract is rooted in the notion that it is in the public interest to recognize that individuals have broad powers to order their own lives.’[  –unquote  ]   

In opposition to the above, I raised the following questions  years ago in 2005,

[quote — ]When did ‘whatever the people privately contract’ dominate the protections of the U.S. Constitution?  Please state what, if any, are the government’s interests in supporting H-O-As that deny the people their constitutional rights?[  –unquote  ]

I have not received an answer from any party including constitutional think tanks, state legislators, attorney generals, or the media.  It’s obvious that in any reply they [quote — ]would be defending the indefensible![  –unquote  ]

Freedom to contract; implied consent to be bound

The simplistic argument that remaining in the H-O-A implies consent is answered, in general,  by political scientist, professor of constitutional law, and author Randy Barnett,

Simply remaining in this country, however, is highly ambiguous. It might mean that you consent to be bound by the laws . . . or it might mean that you have a good job and could not find a better one [elsewhere] . . . or that you do not want to leave your loved ones behind. It is simply unwarranted that to conclude from the mere act of remaining . . . that one has consented to all and any of the laws thereof.[  –unquote  ][7]

I broadly address the consent issue in H-O-A Common Sense, No. 4: Consent to be governed[8]  (2008).  A deeper discussion can be found in H-O-A consent to agree vs. [quote — ]the will of the majority[  –unquote  ] (2019) wherein I quote constitutional scholars Randy Barnett, Keith E. Whittingham, and Edwin Meese.[9]

The important, selected, noteworthy quotes shown below bear directly on the defects in the top-down, take it-or leave it CC&Rs:

[quote — ]Tacit consent purports to provide a rationale for obligating those of us, by chance or choice, have not made their approval of the government explicit [Whittingham].[  –unquote  ]

[quote — ]The [quote — ]consent of the governed[  –unquote  ] stands in contrast to [quote — ]the will of the majority[  –unquote  ] . . . consent is the means whereby arbitrary power is thwarted [Meese].[  –unquote  ]

[quote — ]A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the H-O-A amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just’ [Barnett].[  –unquote  ]

US Supreme Court must decide

I have informed readers about the  sticky-wicket that ties all these constitutional questions together as applied to the H-O-A legal structure and scheme; a sticky-wicket that must be resolved once and for all by the US Supreme Court.

References


[1] Restatement (3rd), Property: Servitudes, Susan F. French, Reporter, American Law Institute (2000).

[2] The question of  [quote — ]legitimacy of consent[  –unquote  ] is explored by Randy Barnett in his publications where he argues that there are limitations.  Restoring the Lost Constitution: The Presumption of Liberty, Randy E. Barnett, Part 1, Princeton University Press, 2004). 

[3] Nicdon v. Desert Mountain, No. 1 CA-CV 20-0129 (April 29, 2021).  

[4] Supra n.1, §3.3(1).

[5] [quote — ]How the Institute Works,[  –unquote  ] American Law Institute (ALI),website (May 3, 2011).

[6] This section of the Restatement, Validity of Servitude Arrangements, speaks to unconstitutional servitudes (§3.1(d)) and servitudes violating public policy (3.1(e)).  Worth reading.

[7] Supra n.3, p.19.

[8] See H-O-A Common Sense: rejecting private government (2008) pamphlet on Amazon.

[9] Barnett, supra n. 3; Whittingham, [quote — ]Chapter 5, Popular Sovereignty and Originalism,[  –unquote  ] Constitutional Interpretation, Univ. Press of Kansas (1999); Meese, [quote — ]What the Constitution Means,[  –unquote  ] The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.

Desert Mountain opinion (AZ) constitutionality part 1

The Arizona appellate court ruling in Nicdon v. Desert Mountain[1] needs to be appealed to the AZ supreme court on color of law denial of fundamental rights to property; on violations of the equal protection of the laws.  While the issue at hand was an amendment to restrict short-term rentals to just 30 days, it raised several constitutional concerns.

It is unfortunate that the Court relied on earlier HOA case law as precedent.  When these older decisions are quoted and cited, they must be reviewed and rebutted along constitutional concerns. 

Disclaimer: Understanding that in spite of my 20+ years reading hundreds of federal and state supreme court and appellate court opinions, I am not a lawyer nor am I employed by a lawyer; I only offer my views.

. . . .

With respect to Desert Mountain, the following are quotes from the opinion  that I find contentious and worthy of constitutional challenges.

1.  “By accepting a deed in the Desert Mountain planned community, Nicdon became bound by the Declaration, including properly adopted amendments. . . . when [a] homeowner takes [a] deed containing restriction allowing amendment by majority vote, homeowner implicitly consents to any subsequent majority vote to modify or extinguish deed restrictions”.

Surprise! Surprise! “Implicit consents”  means not clearly stated. This is a reality hidden from and not made known to the buyer at closing by the builder, the HOA, or the real estate agent, thus raising full disclosure of material facts violations. Meanwhile the courts, and CAI, have repeatedly upheld the validity of the CC&Rs as a bona fide contract against homeowners.

2.  “In addition, in interpreting contracts, “we attempt to reconcile and give effect to all terms . . . to avoid any term being rendered superfluous.”  The Court accepts CC&Rs as a valid contract.  Based on (1) above, this is an unequal protection of the laws and a due process violation resulting from misrepresentation of material facts.

3.  “In adopting the Amendment, Desert Mountain properly followed the procedures laid out in its governing documents.”  Under contract law this can be seen as an invalid “agreement to agree.”   The homeowner raised the issue of an unreasonable addition to the CC&Rs, but the Court saw it differently.  The real argument, in my mind, was the invalid agreement to agree and therefore,  a taking of personal property without compensation not permitted under the federal and Arizona constitutions.

Although no such restrictions explicitly appeared in the Declaration when Nicdon’s principals purchased their home, they could have reasonably anticipated further restriction or expansion on matters within the scope of the Declaration’s regulation.”

There are no grounds for holding that a member “could have reasonably anticipated further restriction or expansion on matters. . . .”  It’s dictum.  The governing documents are not set up for handling agreements to agree on broad and unreasonable amendments that are NOT negotiated with the members. Voting for the amendment is not negotiating. Many members speaking out on contract matters is not negotiating one-to-one. But, in order to make the HOA work, the amendment process, following public processes, rejects contract validity.  We have unequal protection of the law.

Also, is this an open-ended procedure  making the covenant invalid? “Some courts have concluded that an agreement to negotiate at a later date is an unenforceable agreement to agree. . . . But other courts have distinguished unenforceable agreements to agree from valid agreements to negotiate in good faith.”[2]

4.  “Given these provisions, as well as the comprehensive nature of the Declaration and its amendment procedures, a prospective purchaser of a lot in the community would reasonably be on notice their property would be regulated by extensive use restrictions, including limitations on renting of homes, subject to amendment in accordance with the Section 5.20 process.”

I would argue that a buyer would “reasonably be on notice their property would be regulated by extensive use restrictions” is  an abuse of discretion in that reasonableness is with regard to the content of the amendment and not the notice of an amendment.  It is obvious that there is no provision for negotiations with the homeowner.  The governing documents amendment provisions are set up as if it were a local government and not a one-to-one contract. It needs further explanation.

5.  “A restrictive covenant is generally valid unless it is illegal or unconstitutional or violates public policy” was quoted from the Restatement (Third) of Property (Servitudes) § 3.1(1). 

The Court added §3.1(1)),

 “this concept “applies the modern principle of freedom to contract,” which generally means that courts will enforce parties’ agreements “without passing on their substance.”. . . .  A restriction may violate public policy for several reasons, including if the restriction is “arbitrary, spiteful, or capricious.

I will forego a discussion of freedom to contract[3] and the reliance on the Restatement of Servitudes,[4] which I find biased in its support of HOA and not an independent reporter on common law and court decisions.  Part 2 will go into these complex but highly relevant constitutional issues relating to the HOA legal scheme.

. . . .

What has been lacking in HOA litigation over the years, with all due respect to homeowner champion lawyers, is constitutional law expertise.  I’ve read too many cases that touched upon constitutional arguments like free speech, due process, and equal protection of the laws but failed to delve deeply into these defects in the HOA legal scheme.

  The broad approach successfully used by Justice Ruth Bader Ginsburg in her women’s rights litigation needs to be adopted here. And, as usual, CAI was there representing the HOA or by filing amicus curiae briefs.

References


[1]   Nicdon v. Desert Mountain, No. 1 CA-CV 20-0129 (April 29, 2021).

[2] The Lawletter Blog, The National Legal Research Group, (April 30, 2021).

[3] The question of  “freedom to contract” is explored by Randy Barnett where he argues that there are limitations. Restoring the Lost Constitution: The Presumption of Liberty, Randy E. Barnett, Princeton University Press, (2004).

[4] Restatement (3rd) Property: Servitudes (American Law Institute 2000).


If only advocates would stand up to CAI

This month, April 18th and 21st,  I posted comments[1] on the dereliction of duty by state legislatures and the need for the DOJ to investigate state legislatures as well as the undue influence by CAI teachings in its School of HOA Governance[2]  Yesterday, the 23rd, it seems that CAI is trying to soften its misleading statements and failure to disclose the whole truth about HOA-Land.  Previously I had commented upon Kelly G. Richardson’s[3]  2020 article  in The Public Record,[4]

“Richardson seems to be saying that indeed a director has a fiduciary duty to the member but that duty to the HOA comes first.   He further warns directors, who have relevant knowledge and expertise, to remain mum and not speak out least he be sued. If the director chooses to speak out as he should do in the best interests of the HOA, ‘the director is not acting as a director but is an unpaid consultant and could be held liable for their advice.’”[5]

In yesterday’s “ HOA Homefront: What surprises lurk in your CC&Rs?”[6]  Richardson added to his attempt to “tell it like it is” revealing some hidden aspects of CC&Rs. (Emphasis added).

“Here are 11 things about CC&Rs that might surprise you, before you read them. 

“CC&Rs bind all owners, regardless of whether they read it, understood it, or received a full copy of it. As a recorded document, CC&Rs are a “covenant running with the land,” meaning a legal commitment attaching to the land and therefore its owners.

“Normally enforced by courts, even if they seem unreasonable. The California Supreme Court ruled in 1994 that CC&Rs are presumed enforceable, with some narrow exceptions (such as if they contradict a law).

Original developer-supplied CC&Rs often are boilerplate with parts not applicable to the community. This is because the developer’s primary interest is to obtain quick approval from the Department of Real Estate to begin selling the homes.

As limits upon owner autonomy, CC&Rs can seem intrusive at times. These limits help to protect neighbors from unneighborly behavior and against properties detracting from the community.”

I must admit he comes clean to a certain degree admitting to some of those hidden aspects of CC&Rs, which the interested parties including legislators and the media should have been made aware prior to any decision-making, or before buying a home in an HOA. Too late after the fact!  Additionally,  Richardson fails to “call for action” — frequently used by CAI chapters — to correct these silent gotchas by adopting my proposed legislation,[7] which plainly says,

“The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes. Legislative dereliction of duty

“Furthermore, any governing documents of an association not in compliance with the above shall be deemed amended to be in compliance, and notwithstanding the provisions of any law to the contrary, a homeowners’ association shall be deemed to have amended its governing documents to be in compliance.

Lesson to be learned

For far too many years advocates and homeowners have failed to rally against the heavy influence of CAI on state legislators and the media, thereby allowing CAI to set the tone unchallenged.  This failure demonstrates a severe weakness to achieve HOA reforms of substance.  It is widely known, and proven countless times in other successful arenas, that legislation is accomplished by means of a widespread outcry by the “victims.”  Former Colorado Senator Morgan Carroll strongly advises her readers,

We elect people to represent our interests, but our elected representatives cannot adequately represent you unless they hear from you. . . . If you don’t participate in your government, then the only remaining participants in the system are legislators and lobbyists.” 

It has been a long time failure by homeowner rights advocates to achieve meaningful, constitutional reforms. For whatever reason for this lack of involvement in a nationally united front, the practical reality has been the continued control and dominance by the CAI School of HOA Governance.[8] 

As an aside, CAI’s March “Call For Action”, “Grassroots Advocacy Initiatives Are More Essential Than Ever,” seems to be desperately seeking more active grassroots  involvement by its members, yet advocates remain silent.

“It is more important than ever for CAI advocates to engage in grassroots activism across the country. CAI believes it’s crucial for our members to tell legislators their stories and help them better understand the need for proper public policy decisions when approaching state legislation regulating community associations.”[9]  

Presently, Colorado’s HB 21-1229 is falling by the wayside as well as Arizona’s HB 2052, resurrected from last year’s SB 1412, both excellent reform bills.  California is facing problems with  SB 391 and in Florida  SB 623 (2020) went into defeat.

If only more had come forward and challenged, criticized, and exposed CAI we would have achieved much, much more.  Richardson’s article offers an excellent opportunity to step up to the plate!

References


[1] See Legislative dereliction of duty: supporting HOAs and   State legislatures must be held accountable for dereliction of duty.

[2] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[3] Kelly G. Richardson: CAI Board of Trustees 2011-2017; Community Associations Institute (CAI), National, President, 2016; College of Community Association Lawyers (CCAL), 2006; CAI’s California Legislative Action Committee, Chair, 2009, 2010; National Association of Realtors; California State Bar Association, Real Estate & Litigation Sections.

[4] HOA Homefront: Fiduciary Duty – What It Is, And Is NOT,

[5] CAI School faculty advice – managing HOAs.

[6] The Press-Enterprise, News, Housing, Opinion (April 23, 2021).

[7] See for example, Legislative dereliction of duty: supporting HOAs.

[8] Supra n. 2.

[9] See Grassroots Advocacy Initiatives Are More Essential Than Ever .

State legislatures must be held accountable for dereliction of duty

While U.S. Attorney General Merrick Garland announced a DOJ investigation into the Minneapolis police department, the AG must also start a sweeping investigation into the dereliction of duty by state legislatures in their unconstitutional support, promotion and encouragement of homeowner association legislation.  

(See Legislative dereliction of duty: supporting HOAs). 

Legislation, which affects some 23% of all Americans living in an HOA, that permits contractual, authoritarian private governments  (HOAs or community associations) not accountable to the US Constitution.

The DOJ must also investigate the role and extent of the influence on state legislatures by the national, self-proclaimed expert in HOA law, the Community Associations Institute (CAI) and its affiliate, The Foundation for Community Association Research.  The DOJ must examine the extent of the teachings of the CAI School of HOA Governance has had in creating longtime conditioning and indoctrination of legislators, the media, and the public.  

“CAI School” is a term that I use to describe the collection of all CAI statements, publications and including seminars, programs, classes, etc. that constitute the CAI Manifesto.

State legislatures must be held accountable for any undue influence by pro-HOA special interests.  CAI must be held accountable for the content of its pro-HOA advocacy.

Arizona HB 2052 restores homeowner constitutional speech protections

The Arizona HB 2052 (2021)  bill (sponsored by Rep. John Kavanagh) is an update to Arizona’s SB 1412[i] which died in Rules last year as a result of postponements due to the COVID-19 virus.  Essentially, its

“Overview Stipulates that a unit owner’s association or a planned community association (association) may not prohibit a unit owner or member (member) from peacefully assembling and using private or common elements of the community.”[ii]

The list of AZ GE committee RTS names against HB 2052 shows only AACM and not CAI, who I believe is hiding from severe criticism of its support for unconstitutional HOA legal scheme.[iii]  However, the long time activist CAI member firm, Carpenter Hazlewood et al.,  with several lawyers also being CAI activists, opposes this bill that seeks to restore political free speech to members in HOAs that was taken away by ab initio  — from the beginning making the agreement null and void from the start — unconstitutional declarations of CC&Rs.

“We encourage our association clients to review HB2052. We encourage all board of directors to contact their representatives to discuss its association’s position on HB2052. If you have any questions for Carpenter Hazlewood about HB2052, please feel free to contact the firm’s Legislative Team.”[iv]

CAI dominates HOA board as a result of its CAI School of HOA Governance[v] indoctrination over the years.  What is your board going to do? Stand by CAI’s opposition or obey its legal duties to do right by the members.[vi]  It can only reject this bill on the grounds that it feels granting its members constitutional rights of free political speech — that all other Americans have —  will harm the HOA government.

WHAT DO YOU SAY?

Do not allow your board to speak for you before government committees without a vote of all the members granting such powers.  I have no doubt, based on my years of dealing with CAI on constitutional issues, that its email has been sent to your president your manager, and directors.

Stand by the Constitution!  Contact your state representative and urge him/her to support HB 2052, which will soon come to a vote in the House.

Looking at the role Washington must play, see America cannot be completely unified with HOAs.

References


[i] See in general, AZ SB 1412 reflects move to HOA constitutional reforms (Jan. 2020); Authorities for protected HOA political speech — SB 1412 poll (Jan. 2020); AZ fair elections reform bill SB 1412 moves on (May 2020).

[ii] HB 2052 summary.

[iii] In the Twin Rivers case, the CAI amicus brief to the NJ appellate court warned about “the unwise extension of constitutional rights to the use of private property by members [in HOAs].”CBTR v. Twin Rivers, 929 A.2d 1060 (2007); In reply to my amicus curiae brief, CAI responded with, “It is clear that the amicus curiae simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.”(CAI/Smith amicus response.); CAI maintains HOAs are protected by and do not violate the Constitution — not so!

[iv] “CHDB Legislative Alert!!! AZ House Bill 2052,” Carpenter, Hazlewood email, January 21, 2021.

[v] CAI School of HOA Governance: The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[vi] In my sampling of CC&Rs of both large and small HOAs I found boilerplate wording that focused on “maintaining property values” or “for the overall development, administration, maintenance and preservation of the Properties.” Almost all, but not everyone, contain a statement directed toward the member: “shall inure [take effect] to the benefit of the member” [or “each owner”], and “be mutually beneficial.” I came across this one-sided statement: “intended to benefit the Association.” The most liberal and progressive statement of purpose mimics the Preamble to the Constitution “to promote the health, safety and general welfare of the residents of the Properties” (the general welfare clause). The inclusion of “health and “safety” are redundant in that “general welfare” includes these concerns. See “HOA contractual Mission” in Restructuring HOAs – intents and purposes.