HOA representative government and consent of the governed

George Washington wrote in his Farewell Address (1796), the Constitution “is the offspring of our choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles . . . .”  The Declaration of Independence asserted “that to secure these [inalienable] rights Governments are instituted among men, deriving their just powers from the consent of the governed.”

These two quotes contain the fundamental principles of representative democracy adopted by means of a social contract, the Constitution, which are freedom of choice, ”just powers,” and “consent of the governed.” By virtue of these fundamental principles of democracy, HOAs cannot be considered as democratic governments. Period!

In his article explaining the meaning of the Constitution,[1] Edwin Meese III explains that “consent is the means whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate [and hence just] is whether that government rests on the consent of the governed.” 

In order for HOA governments to be just, legitimate and compatible with the Constitution these fundamental principles must be honored and supported. HOA “constitutions,” those CC&Rs, are not compatible with the US Constitution.

Meese further addresses the differences between “consent of the governed” and “will of the majority” that is a pro-HOA mantra. “The ‘consent of the governed’ describes a situation where the people are self-governing in their communities . . . into which the government may intrude only with the people’s consent.”

He explains that the “Will of the majority” is a political mechanism for decisions to be made by the government. In other words, the BOD makes decisions on behalf of the members based on its view of the majority will or some survey of the members. In short, in a representative democracy, like that attempted by the HOA legal structure, not all of the members are in agreement with or consent to the decisions of the BOD. It raises the issue of ‘the tyranny of the majority’ when the minority is not given due respect nor the ability to freely and equally speak out on HOA governmental issues.

Meese contends that the Founding Fathers[2] understood this weak point in a democratic government and the need to “insure domestic tranquility.”[3]

[A] government [must rest] not only on the consent of the governed, but also on a structure of government wherein the views of the people and their civic associations can be expressed and translated into public law and public policy. . . . Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens.

The structure of HOA governance is not based on and contradicts fundamental American principles and traditional values.  Furthermore, the CC&R are not even based on contract law 101 with its requirements for freely entered into, full disclosure, and explicit agreement to be bound,  but on the real estate doctrine of equitable servitudes.

To learn more about your loss of these rights and freedoms see The HOA-Land Nation Within America.

 

References

[1] Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.

[2] See in general, The Federalist Papers, #51, James Madison who explained, “Justice is the end [goal] of government. It is the end of civil society.”

[3] Preamble to the Constitution.

So. Carolina HOA study committee misses the point

As a follow up to my “State legislature not concerned” commentary, the SC HOA Study Committee released its recommendations on HOA legislation.[1]   On the issue of, “Education for Homeowners and Board Members,” a committee member recommended CAI as a source for HOA education in general. Apparently, with all due respect, he is not fully aware of CAI’s history and its views on maintaining authoritarian private governments.

This property member representative offered, “Education is already available. According to one source, “CAI (Community Associations Institute) webinars offer specialized, professional training without leaving your home or office. . . . Homeowners should have reasonable access to an organization such as Community Associations Institute (CAI) or a knowledgeable State agency to obtain unbiased, accurate information.

Fortunately, the recommendation was not to have a private entity, including CAI, provide HOA education.

While the Community Association Institute (CAI) and other private entities offer educational resources to homeowners and managers, state government cannot place the sole responsibility of educating homeowners and board members on a private entity.”

The committee recommended that several state agencies “to seek reliable and unbiased information available from private entities and to publish and make such programs by private parties available online. So, the door is still open for CAI biased influence given the current climate that CAI is the only source and has no self-interest.

There is an abundant supply of information to inform the legislators of the true nature of CAI, its 42 year history of failure, and its policy to keep HOAs as authoritarian private governments.[2] But the problem is is to first educate the legislators in line with HOA Common Sense: rejecting private government. This requires a source to provide alternate perspectives on HOA governance: civil government, local government, constitutional law, and city managers.

A simple HOA bill would just have to say,

The association hereby waives 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.

There is much to be accomplished in order for meaningful HOA reforms to occur. If advocates continue to fail to speak out and ignore, as I have urged, the principles of constitutional government as applied to HOAs, the outcomes over the years will also continue.

 “We must continue to provoke until they respond and change the laws.” Gandhi.

 

References

[1] STUDY COMMITTEE ON HOMEOWNERS ASSOCIATIONS, Dec.18, 2015 (http://www.scstatehouse.gov/CommitteeInfo/HomeownersAssociationStudyCommittee/HOAStudyCommitteeFinalReport12182015.pdf).

[2] See Will the real CAI standup: its contradictory beliefs, pronouncements and goals and CC&Rs are a devise for de facto HOA governments to escape constitutional government. In general see, Unconstitutional delegation of power to HOAs, HOAs violate local home rule doctrine and are outlaw governments; and Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Evan McKenzie, Yale Univ. Press, 1994; Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, Donald R. Stabile (Greenwood Press, 2000).