Authoritarianism in America; authoritarianism in HOA-Land

Some 23% of Americans live in HOA-Land, that collection of fragmented independent principalities known, in general, as HOAs. HOAs are separate, local private governments not subject to the constitution, and collectively constitute a nation within a defined geographical region known as the United States.

 “A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.”

Jonathan Chait  (Nymag.com, Jan. 3, 2022), wrote last week,  You can’t stop authoritarianism unless you understand it.” Consequently, my continued effort to reorient and reeducate HOA BODS and its followers.

The HOA is truly a totalitarian democracy.  In 2019 I wrote, “Authoritarianism in the HOA-Land Nation

“A totalitarian democracy . . . retains full power of . . .  the right of control over everything and everyone. Maintenance of such power, in the absence of full support of the citizenry, requires the forceful suppression of any dissenting element except what the government purposely permits or organizes.”

The authoritarianism of HOA-Land  is masked by a thorough indoctrination that the real estate subdivision is a democratic community because the members are allowed to vote, as meaningless as it is. It seems that the more predisposed to authoritarian control the more the member acts as a diehard, dogmatic, true-believer in the BOD.

Read more Cult behavior within HOA-Land.

Staying the course to apply the US Constitution to HOA-Land

In my long involvement in HOA reform legislation I’ve suffered defeat after defeat culminating in this week’s AZ Supreme Court denial to hear Tarter v. Bendt and address my amicus curiae brief. The brief raised deep questions arguing that state legislatures and judges demonstrate an unconscious pro-HOA bias as a result of years of an unopposed picture of the HOA legal scheme. And as such, erred in the courts’ decisions against Bendt.

But taking heart from the words of Winston Churchill,

Or even better, from WWII General Joseph “Vinegar Joe” Stillwell,” Illegitimati non carborundum (Don’t Let The Bastards Wear You Down).

But still, I managed to have some successes.

Several of you have received my Don Q Medal of Valor for your repeated efforts to expose and inform the public about the hidden side of HOA-Land, the side the national lobbying entity avoids like the plague. Over the years I’ve come to the conclusion that I’m the real personification of Cervantes’ fictional Don Quixote. I wrote:

 “The reality of the HOA ‘windmills.’ This is my statement on the rejection of my efforts to restore constitutional protections to HOAs by a society suffering from a decay and decline in ethical, moral, and democratic values.

 “For the most part, my analyses and warnings have been ignored by elected officials and politicians at all levels, by the public at large, and by a large majority of homeowners living in HOAs. So, it appears that like Don Quixote,  I am out-of-step with the reality of these times. But it doesn’t make me wrong!  Historians will judge.”

(See HOAs as ‘windmills’, Dec. 2020).

I am also disappointed by the failure of HOA advocates to rally around the injustice perpetrated on a homeowner by an upscale HOA and the courts.

AZ supreme court denies hearing HOA case raising limited-purpose public figure doctrine

The Arizona Supreme Court has denied hearing the Tarter v. Bendt (CV21-0049-PR), a defamation lawsuit brought by an HOA president and attorney.  In general, the Court does not provide any reasons or justifications for its decision and did not provide one. The attorney for Bendt, Lori Voepel, while addressing the legalities of the decisions, raised the  question that Tarter, the HOA president, was a limited-purpose public figure entitling Bendt to additional free speech protections. It is my understanding that Sonia Bendt will be pursing a US Supreme Court appeal.

In my amicus brief I informed the Justices about the real-world functioning and operations of HOAs, and about the biased public policy resulting from the dominance of the national lobbying organization, CAI, and its agenda. I included aspects of public policy  set forth  by the Arizona pro-HOA legislature, judges in their decisions and opinions, and the silence of the media to inform the public as to this reality.  I had hoped that the case would be remanded for consideration of the role of the HOA president, since the complaint concerned acts and conduct by Tarter in his capacity as HOA president.

In my amicus brief (an advisory filing as a “friend of the court”) I painted a broad picture of HOAs as public forums with protected free speech concerning questions of HOA governance. A favorable decision would have prohibited HOA boards of directors from restricting member criticisms and allowing “opposition parties” equal access to the same means and vehicles that the BOD uses; namely, the HOA magazine, email distribution, use of facilities for meetings and “townhalls,” to name a few.

I am very disappointed in the Arizona Justices.  Permitting an outlandish financial damages and adding  punitive damages of $1,000,000 and $500,000 in compensatory damages is outrageous and not warranted by the evidence or by the HOA legal scheme. An opportunity to protect citizens living in HOAs from second class citizenship was ignored! Have they forgotten the 8th Amendment prohibitions: “nor excessive fines imposed, nor cruel and unusual punishments inflicted”? OH, HOAS are not public bodies!

The homeowner, Bendt, is punished for speaking out in admittedly harsh terms. Yet the judicial system stands by looking at a distance and allowing Trump and his followers to function as vexatious litigants. Allowing them to  raise allegations, which are not only laughable but blatantly false under Rule 11, is shameful conduct.  “No negatives about HOAs shall be allowed” seems to be the Court’s policy.

“Something is rotten in the state of Denmark.” No, something is rotten in the state of Arizona!

Legislative dereliction of duty: supporting HOAs

I have strongly and repeatedly argued that the HOA declaration of CC&Rs is a devise — a legal maneuver — by real estate interests to avoid the application of the federal and state constitutions to HOAs.

 The word “may,” as found prolifically in HOA statutes, serves to legalize acts  and powers of the private HOA  entity in a round-about, subtle manner. Without the use of the “may clause,” an act of the HOA can be challenged as illegal even though it is stated in the declaration agreement that is treated as a contract. Thus, state legislatures avoid a constitutionally mandated enabling act that delegates authority to any agency or public-private entity.

The acceptance of home rule doctrine and statutes, by all states, would seem to negate any justification under judicial review for creating special laws for HOAs.  Home rule offers an alternative measure to satisfy any genuine government interest, thus making HOAs unnecessary.

So it appears that businesses can fail as well as cities, towns and states but, heaven forbid, not  the private HOA government.

Read the entire paper here.

America cannot be completely unified with HOAs

America cannot be completely unified with HOA-Land not subject to Constitution

Our new #PresidentBiden and #VicePresidentHarris have a task before them if they truly seek to unite America.  There are some 23% of Americans live under special laws for special entities known as #HOAs – #homeownerassociations – that are authoritarian local governments not subject to the #Constitution as required by all local and state governments.

In total, these fragmented HOAs constitute The HOA-Land Nation within America, actively encouraged and supported by all state legislatures to some degree or another.  Only the federal government can act Restoring the lost Constitution to HOA-Land.  I brought this very need to the attention of the Trump presidency with no results (Rogue presidents: Trump and HOAs). A Plan Toward Restructuring the HOA Model of Governance has been proposed to this effect.

I now call upon President Biden and Vice President Harris to truly unite all Americans under the Constitution and the laws of the land.