Lost HOA Constitution webinar complete videos

This post allows access to 3 webinar videos on Restoring the Constitution to HOA-Land. The quality improves as I go on — it’s the content, the material, that’s important to learn and understand.

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HOAs are not a club; they are legally binding agreements

HOAs are not a club.  They are legally binding adhesion agreements in favor of the HOA government, the BOD, and seriously detrimental to homeowner property interests and member fundamental rights.   Members are at risk because the private “contractual” CC&Rs have been held superior to the US Constitution by the courts.  The facts are there in the public records and state HOA statutes known as “Acts.”

It is in the best interest of the members not to obediently agree to all the BOD says they should, but to get educated and discover the truth for themselves. If they can handle the truth. Discover for yourselves.

My seminal book, The HOA-Land Nation Within America  describes the collection of HOAs throughout America as “HOA-Land.” It identifies HOA-Land as a nation within America based on its culture, beliefs, values, and commonality of contractual CC&Rs acting as its constitution.

My sequel to HOA-Land Nation, A Plan Toward Restructuring the HOA Model of Governance, another seminal work,  presents the case for the restructuring of the HOA model of governance. It seeks to bring the private government HOA into compliance with and subject to the Constitution as required of all local governments.

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For important information, please see HOA board education in constitutionality

Restructuring HOAs: “CAI School and member benefits” pt. 2

Mentoring: “CAI School of HOA Governance”

Part 2 addresses the heavy influence of the CAI and its affiliated, shill, organizations functioning as supporters of HOAs and the questionable claim of also supporting homeowners.

CAI heavy influence

Several HOA attorneys have maintained that the expression of the common interest of all the members is found 1) in the Declaration that they all agreed to be bound by and 2) because the members still remain a resident and a member of the HOA. It is through the Declaration itself that provides their benefits and the BOD is not derelict in its duties and obligations to the members. And that’s all there is to it!

However, herein and in my intents and purposes paper[1] I argued that the BOD’s mission statement, vision and values are one-sided and heavily influenced by the mindset created by the CAI School of HOA Governance[2] that neglects constitutional protections for the members. The alleged benefits for the members as contained in the CC&Rs do very little to provide the benefits of a democratic government. In fact, they restrict or deny the application of constitutional rights and freedoms, and the privileges and immunities of citizens of this country and their state.[3]

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.”

In order to correct these serious defects in the HOA legal model the HOA must be restructured to conform to and be subject to the Constitution and laws of the land. It must begin with a declaration of citizenship to be made a covenant in all declarations, charters, bylaws and other governing HOA documents. State laws and CC&Rs must be amended according as proposed in my HOA Member Declaration shown in part below:

Therefore, the members of the association, having not waived or surrendered their rights, freedoms, privileges and immunities as citizens of the United States under Section 1 of the Fourteenth Amendment, and as citizens of the state within which they reside, the CC&Rs or Declaration for any planned community, condominium or homeowners association shall state that, or be amended to comply . . . .”[4]

In order for this revision to become a reality the BOD and HOA members must be reoriented away from the teachings of the CAI School and toward the forgotten and neglected principles and values of democratic America. The CAI School needs to be replaced with a qualified program of education and training on municipal government: its structure, objectives and mission, functions and operations.

CAI support of HOAs

Why does CAI oppose holding HOAs subject to the Constitution? How can CAI take this stance and still assert that it’s supportive of the homeowners? It seems by adopting the WW II Fascist philosophy of Italy’s Il Duce, Benito Mussolini, who proclaimed, “All within the state, nothing outside the state, nothing against the state.”[5] And who described Fascism a being “for the State; and it is for the individual in so far as he coincides with the State[6] Just substitute “HOA” for “state” and it all makes sense. Essentially, this is CAI’s true position on HOA governments.

While there is much to support and justify the need to remove the heavy influence by CAI over HOA-Land, a few instances are provided.

In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . raises the likelihood that judicial intervention will become the norm.”[7] (NJ).

In other words, CAI doesn’t want our constitutional judicial system to be applied to HOAs. They can rule themselves without judicial oversight. All other forms of local government, including the most liberal of self-government charters under the home rule doctrine are subject to the Constitution.

AGAINST

[CAI] Kathe Barnes, Self(02/10/2020); Jason Barraza, AZ ASSN OF COMMUNITY MANAGERS (AACM)(02/10/2020); Terry Carstens, Self(02/23/2020); Quinten Cupps, Self(02/06/2020); [CAI, AACM] Mary Jo Edel, Self(02/06/2020); Alexis Glascock, COMMUNITY ASSOCIATIONS INSTITUTE(02/09/2020); [CAI attorney] Lynn Krupnik, Self(02/06/2020); [AACM] Linda Lang, Self(02/10/2020); Mark Logan, Self(02/10/2020); Dave Norton, Self(02/06/2020); Jeff Sandquist, AZ ASSN OF COMMUNITY MANAGERS (AACM)(02/10/2020); Vicki Sears, Self(02/06/2020); [AACM] Mark Wade, Self(02/06/2020); Donna Wood, Self(02/06/2020); [AZ]

The above quote represents the persons and/or organizations against Arizona Senate bill SB 1412 (2020). The bill would bring homeowner protections for HOA political activity and free speech rights. Note the absence of any identification of several persons who are members of one or the other mentioned organizations, CAI and AACM (AACM is a spin-off from CAI in 2003). That’s 8 out of 14 persons in opposition. Please also note that none of these persons have identified themselves with any HOA. Where are the HOA directors or presidents?

California’s SB 323 (2019) introduced fair elections procedures for HOAs that protect homeowner voting rights. It addressed one of my 6 substantive defects in the HOA legal scheme.[8]   It has become California law. Long time California lawyer Adrian Adams is heavily involved in CAI policy and management at the HQ and chapter levels. He writes:

Last year, the Center for California Homeowner Association Law (CCHAL), an organization hostile to community associations . . . The train wreck legislation . . . The bill also forces members . . . In another hostile move against associations . . . The California Legislative Action Committee (CLAC) is a volunteer organization consisting of homeowners and professionals serving homeowner associations by monitoring legislation, educating lawmakers, and protecting the interests of those living in community associations.[9]

CAI’s California LAC:[10]

The California Legislative Action Committee (CLAC) is a committee of Community Associations Institute (CAI), a national not-for-profit educational and resource organization dedicated to fostering vibrant, competent, harmonious community associations. CLAC consists of homeowners and professionals serving community associations.

We worked hard to defeat SB 323 and we came very close, especially on the Assembly Floor where the bill passed and was sent to the Governor. . . . Let’s work closely together to make sure legislators understand the negative consequences SB 323 potentially will have on community associations.

It should be obvious by now that CAI is not a friend of the homeowner in spite of its lofty, high sounding pronouncements, policies and Best Practices. The acts of its members both in CAI HQ and in the numerous state chapters speak an entirely contradictory message. CAI is there to support the HOA and the BOD that is the real person representative of the HOA association. It is obvious that granting and admitting individual rights and freedoms to the homeowners presents an obstacle to its personal agenda; CAI is a business trade tax-exempt nonprofit entity to make money for its members, the attorneys and managers for the most part, the

After consideration of the above and earlier posts under Restructuring HOAs, I ask and answer: Does the Declaration provide covenants that implement and accomplish the intents and purposes of the HOA that serve the interests of the members? My answer is NO. It raises the question of why BODs accept the HOA model of local government and resist revisions in order to bring the HOA within the Constitution for the protection of its members?

Notes

[1] See “Restructuring HOAs – intents and purposes,” George K. Staropoli, HOA Constitutional Government (Feb 2020).

[2] The basis for a definition can be found in “CAI claims Factbook 2018 at home with Democracy in America.”, in HOA Constitutional Government, footnote 9.

[3] See “Would the HOA legal scheme collapse under a democratic form of government?” in HOA Constitutional Government (2014); “HOA-Land and the decline in democratic institutions” in HOA Constitutional Government (2019).

[4] See “HOA member Declaration of US and State citizenship” in HOA Constitutional Government (2012).

[5] See Benito Mussolini: What is Fascism, 1932.

[6] Fundamental Ideas of Fascism,” Benito Mussolini, Souciant, Inc. (2016).

[7] CAI amicus curiae brief in CBTR v. Twin Rivers, 890 A.2d 947 (NJ Super. App. Div. 2006).

[8] See HOA Common Sense: rejecting private government, Democratic elections, No. 5. (2019).

[9] Adams Stirling Newsletter, Adrian Adams, Esq. (Feb. 24, 2019). Adams is a member of CAI’s Community Association Research Foundation, CAI chapter director and CLAC delegate.

[10] CAI-CLAC Feb. (2020).

 

 

 

Restructuring HOAs – intents and purposes

Mentoring: Purposes, intents, and mission of HOAs[1]

The larger HOAs, especially those that are planned master HOAs or resort style or active adult HOAs,[2] may contain explicit mission and vision statements as well as a declaration of values. Most other HOAs, also created as nonprofits, generally do not explicitly offer such statements. Here’s are shortened but typical examples of such statements used by an active adult, resort style HOA in Arizona.

Mission Statement:

To provide residents with a high-value community with resort-style amenities,

To maximize our investments.

Vision Statement: To become the premier active, age-restricted community in Arizona.

Values: We believe in a community culture having high standards and principles of conduct and behavior.

These boards of directors (BODs) believe that they are doing the right thing. Addressing nonprofit organizations, eminent management consultant Peter F. Drucker wrote: “The first job of the leader is to think through and define the mission of the institution.”[3] He makes the point that the worthiness of a mission statement lies in leading to “right action.” It has to be operational, otherwise it’s just good intentions. They set the policies that serve to guide the organization’s activities and conduct toward effective performance.

HOA contractual mission

We can ask: How are the HOAs doing with regard to accomplishing their mission? But first we must discover if the BOD is operating under its contractual CC&Rs obligations rather than adopted intentions. In HOA-Land, regardless of any explicitly adopted statements, all HOA nonprofits do contain a contractual statement of purpose and intent. They can be found in the CC&Rs usually in the opening paragraphs or in the articles relating to the duties, powers, etc. of the association.

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.

Unlike other nonprofit organizations, the HOA comes with these contractual obligations and is not free to conjure up any mission that does not conform to the CC&Rs. What is quite clear is the absence of a frame of mind that addresses the requirement to benefit the members. The conduct, actions, intents and policies of the HOA must benefit the members just as our public government must serve the people.

Now it can be argued that that’s just what the CC&Rs and bylaws do is to benefit the members because of its enforcement powers, architectural guidelines, use restrictions, the right to fine, and the draconian right to foreclose. As Drucker maintains, the mission statement must lead to “right action,” which can only be such action that conforms to the HOA’s mission and leads to the effective and productive performance.

Best interests of their members?

Do the members really believe that their best interests lie with an authoritarian, contractual private government that denies fundamental and constitutional protections in the broadest applications of a deprivation of “life, liberty, or property without due process of law” and a denial of “the equal protection of the laws.”? I don’t believe so!

Yes, the above powers maybe necessary to maintain an orderly society, but where are the constitutional protections of the rights of a member that are required for legitimate and valid governmental powers?

Find out more about restructuring the HOA model and “inuring to the benefit of the member” in my sequel soon to follow.

 

Further reading:

 

References

[1] This is the first Commentary under the category of Mentoring. Mentorship is a relationship in which a more experienced or more knowledgeable person helps to guide a less experienced or less knowledgeable person. See About StarMan Group for credentials.

[2] I’ve classified HOAs as to resort style, retirement, and pure residential according to their CC&RS and operations and amenities. For a further discussion of types of HOAs, see Are there vibrant, competent, harmonious HOAs?; the CAI perspective, HOA-Land “one size fits all” injustice. The CAI 2005 survey showed 26.8% were resort and 44.3% were residential.

[3] Peter F. Drucker, Managing the Nonprofit Organization: Principles and Practices, HarperCollins (1990).

Restructuring the HOA model

This Commentary is a position paper on the need to restructure the HOA model of government.  It is not light reading and requires serious consideration and understanding  of the underlying issues.

Background

I have stepped outside the box to offer the boards of directors (BOD) a fresh view of the nature and legalities of the HOA legal scheme. StarMan Group HOA Management Consulting believes that the HOA legal model of government must be restructured to

establish the climate and culture of the HOA enabling the restoration of the lost constitutional principles of democratic government — individual rights, justice and fair play — for its members within the confines of a private contractual government,

In my activist 20 years of HOA reforms, irrational fears have been inculcated in the general public and are the primary elements for the failure to resolve 54 years of endemic HOA issues: fear of loss of home, fear of financial and emotional stress, fear of legal actions and lawsuits, fear of social isolation, and fear of property devaluation. These have been advanced by pro-HOA forces.

The current embodiment of a utopian society (HOAs) was formulated in 1964 (The Home Association Handbook) and CAI was created in 1973 to address the growing dissatisfaction with HOAs. In 1993 it dropped being a tax-exempt educational nonprofit to become a business trade group in order to more effectively lobby state legislatures to protect the status quo of the HOA model of governance.

The HOA model of local government is a fourth type of local government in addition to the public domains of commission, council-manager and council-mayor forms. I ask: Is there a legitimate, bona fide reason and justification for the HOA to function outside public government?   No, there is none!

BOD Reorientation to review the HOA mission

The restructuring of HOAs starts with the education and reorientation of the BOD to better achieve its primary, broad purpose which is to provide quality services to its members. The only statements or covenants relating to the intent or purpose of the HOA focus on the interests of and benefits to the members, and neither to investments nor to social welfare services. The BOD must face the question as to how the best interests of the members can be accomplished by a rejection of the US and state constitutions.

“Maintaining property values” cannot be taken as an investment in your home. The CAI model focuses on punishment and enforcement of violators of the governing documents or those who fail to timely pay their assessments. The governing documents (CC&RS and bylaws) contain restrictions and limitations and any rights or privileges that the members possess under the CC&Rs are laughable when compared to the Bill of Rights or state Declaration of Rights.

I firmly believe that the BOD must undertake a serious, in-depth review of the original intent of HOAs and where it is today and where it’s going. For example, surely an HOA is not a social welfare organization but a private membership nonprofit regardless of any misguided ruling by the IRS. This review must be conducted in an open and unbiased manner free from the years of CAI indoctrination by the CAI School of HOA Governance (my appellation), to which far too many BODs have long been a willing and obedient adherent. Being under the spell of the CAI doctrine, the BOD has lost its freedom of mind, has neglected principles of local government, and functions outside constitutional application.

BODs, in general, resort to CAI not for legal advice on how to run the HOA government but as a crutch to allow them to dodge their obligations to govern the people — their residents — living in the territorial subdivision of the planned community or condo. Why would CAI speak of or admit to the Bill of Rights or to state Declaration of Rights and lose control of the industry? Why haven’t they?

In addressing the management of nonprofit organizations, eminent management consultant Peter F. Drucker wrote: “The first job of the leader is to think through and define the mission of the institution.”  He makes the point that the worthiness of a mission statement lies not in its beauty but in leading to “right action.” It has to be operational, otherwise it’s just good intentions. “One of the most common mistakes is to make the statement [a series] of good intentions.”

CC&Rs are a devise to circumvent the Constitution

The recourse to the real estate laws of equitable servitudes giving legitimacy to the declaration of covenants, conditions and restriction has gone afoul with respect to HOA governments. “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 governing documents reflect the undue influence of the CAI School of HOA Governance, and the failure to accept the reality that the HOA is a de facto form of local government that functions outside the US Constitution.

The Homes Association Handbook model set the tone, the character, and the culture of the HOA “community” from which the boilerplate declarations flowed with the help of CAI lawyers. There are no public disclosures of the loss of individual property rights, or the legislative immunity granted to BODs, or the unjust elections procedures, or the absence of constitutional due process protections, or court rulings of implied waivers and surrenders of individual rights, just to mention a few.

It goes without saying that private HOA governments must be restructured to return to the Union and restore member rights, freedom, privileges and immunities. It can be done and must be done. Plessy v. Ferguson (163 US 537 (1896)) was overturned by the US Supreme Court fifty-eight years later in 1954 by Brown v. Bd of Educ. (347 U.S. 483 (1954)). So can years of unjust HOA Acts and statutes be overturned in the light of today’s knowledge and conditions.

And so, it starts with the review and restructuring of the purpose and intents of the HOA to establish a climate and culture of the HOA conforming to the principles of democratic government as required of all local government by the Constitution.

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Further reading: