Authoritarian HOAs and AZ SOS Fontes on American authoritarianism

In January 2022 I summarized my earlier works on authoritarianism in HOAs as a natural consequence of authoritarianism in America.[1]

I came to the conclusion in 2019 that there was a rise in authoritarianism throughout the world including America. And with HOA-land[2] constituting of some 23% plus of Americans, authoritarianism was also well rooted in the HOA form of governance. 

“The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. ‘There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.’” (Authoritarianism in the HOA-Land Nation (2019)).

There is a mass psychology present in HOA-Land. Mass psychology is a study of how your behavior is influenced by large groups of people — “birds of the same feather flock together.” It is the result of the longtime conditioning and indoctrination into identifying with the principles and beliefs promoted by the CAI School of HOA Governance. ( Mass Psychology and Cult Behavior Within HOA-Land (2020)).

Arizona Secretary of State-Elect, Adrian Fontes

In MSNBC interview on Nov.17, 2022, the Arizona Secretary of State-Elect had the following to say about Americans .[3]

“Election deniers . . . we need to call them authoritarians because they don’t believe in the democratic process.  They don’t believe in the consent of the governed. This is  so soundly an authoritarian movement when you look at the people who care about democracy, who care about the function of our government.”

“The people have spoken. There is an authoritarian movement in America, it may be loud . . . but it is dangerous, and we must continue to push back against it with vigor. . . . We have to become better citizens across the nation . . . we have to understand the fundamental structure [of government] better.”

Asked by the interviewer what can you do as secretary of state,  

“I have begun to work with . . . members of the Arizona Legislature . . . we got to be bigger than the problem, we got to be working together, to help people understand that we are all in this together.  You have to set your partisanship aside and work together toward common ends.”

“That’s the kind of leadership that folks like me have to set.   We got to reach out and show the American public that . . . cooperation will open up more avenues of conversation and that’s how we as leaders can set the example.”

Restructure the HOA model of governance

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.

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!

It goes without saying that private HOA governments must be restructured to return to the Union and restore member rights, freedom, privileges, and immunities.[4]

The task before the new Arizona administration

In 2006, HB 2824 (Ch.324), sponsored by Rep. Eddie Farnsworth, established OAH hearings of HOA disputes, followed in 2011 by SB 1148 (Ch. 185), sponsored by Senator Andy Biggs to revise HB 2824 to deal with constitutionality challenges by the trade group, CAI, and 11 years later Arizona now has HB 2158 (Ch. 125), sponsored by Rep. John Kavanagh, allowing for a more meaningful, democratic voice of the members in HOA government.

Hopefully, Fontes will apply his concerns about authoritarian America to that 23% of the population directly subject to authoritarian, contractual, private local government known as HOAs. Hopefully, the to-be-elected Attorney General will identify with Fontes, and they will exert strong influence on the new administration to correct the past legislative ills of supporting, co-operating, encouraging, and protecting the HOA legal structure.

Hopefully, the newly constituted Arizona Legislature will  restore fundamental and constitutional protections, especially due process and the equal protection of the law, to citizens living in homeowner associations.

Notes

---

[1] Authoritarianism in America; authoritarianism in HOA-Land (2022).

[2] 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.”

[3] We Must Push Back Against Authoritarians, Says Arizona’s Secretary Of State-Elect – Bing video.

^[4] Restructuring the HOA model, George K. Staropoli, StarMan Publishing  (2020).

CAI: your friend or your foe?

Author’s note:  I’d like to thank the ever-alert Deborah Goonan of IAC for this important tip.

Unbelievably, the CAI Washington chapter spills the beans  on CAI’s mission and objectives.  As a tax-exempt 501(c)6 business trade nonprofit the oxymoron statements below admit to working for business entities and at the same time, serving the consumers of these services, the HOAs.  “to advocate on behalf of community associations.” 

CAI is not permitted to have HOAs as members, so it recruits the boards of directors as individual volunteers creating conflict of interest conditions. I offer this statement by the chapter to set the tone for my criticism of the following article.[1] Note it skips over serving its members, the attorneys and managers who are vendors to HOAs.

“Our Vision: “To be recognized as the leading resource for Community Associations and Business Partners.

“Our Mission: “Optimize the operations of Community Associations and foster value for our Business Partners.

“What We Do: 1. Advocacy – establish and enhance/maintain relationships with legislators and government officials and to advocate on behalf of community associations; 2. Member Development – boost membership and participation through enhanced outreach; 3. Education – provide a World-Class Education Curriculum for Stakeholders; 4. Member Services – maximize value provided to our current members, including Business Partners (events, conferences, materials, etc.).

“Who We Serve: “Community Association Leaders, Business Partners, CAI National, Community Association Members, Developers/Builders, Financial Institutions, Government Agencies, Insurers, Legislators, Managers, Media, Realtors, Sister Associations.

* * * *

Quorum Magazine article Based on the above stated mission and purpose of CAI, the Washington chapter’s magazine recounts a superficial, misleading whitewash portrayal of the history of HOAs in America[2]; it serves as good CAI propaganda and portrays an unprofessional social media illusion that  all’s well in HOA-Land. It is all real estate development oriented sold as a desired and well accepted housing alternative by uninformed individuals.

The article is devoid of constitutional and democratic concerns and validity centering on the HOA as another form of local government —  a contractual, private government.  These issues affecting the rights and freedoms of HOA members can be found in detail in the listed texts and selected quotes. Note the title of the texts, which says a lot.

• Prof. Dilger wrote in Neighborhood Politics (1992)[3],

“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.”

• Prof. McKenzie wrote in his landmark Privatopia (1994)[4],

“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]. 

“CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local governments.” 

• Steven Seigel wrote in his WM & Mary journal (1998)^[5],

“Because of the traditional view, RCAs [HOAs] 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;”

• CAI-ULI funded publication Community Associations (2005)[6].

“[HOAs are] a consumer product sold by profit-seeking firm, a legal device, a corporation reliant on both coercive powers and voluntary cooperation, a democracy, and a lifestyle.  With this plan, TB50 [The Holmes Association Handbook] set out the plan that would be taken in forming the CAI.”

• Franzese and Seigel argued in their Rutgers journal article (2008)^[7]

“The laissez-fare approach to CIC [common interest communities]  regulation is reflected in the statutory law, which affords exceedingly few rights and protections to homeowners association residents.”

It can be safely concluded that CAI is not your friend, and any HOA in bed with CAI is representing its interests and not yours.

Notes

---

[1] Washington Metropolitan Chapter, CAI (Oct.18, 2022).

[2] “Community Associations – A Historical Perspective,” Quorum Magazine, CAI (August 2016, reprinted Oct. 2022).  

[3]  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.

[4] Evan McKenzie, Privatopia: Homeowner Associations and the Rise of Residential Private Government,  Yale Univ. Press (1994).

[5] 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).

[6] Donald R. Stabile, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, p. 144 (2000). Funded by CAI and ULI.

[7] 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).

Undue influence of CAI on HOA

I posted this in reply to a simplistic Nextdoor post that wrote that HOAs are governments:

Yes, HOAs and SCG are not simply nonprofits, charities, or for-profit entities. They are, in a complete description, a contractual, private government allowed to function outside constitutional protections under the guise that the members openly and with full knowledge agreed to surrenders and waivers of their rights under the US and state Constitutions.

I suggest concerned people seeking the truth read my simple pamphlet, “HOA Common Sense: rejecting private governments” as a starter. We can then have a meaningful discussion of the issues. It’s on Amazon for just $3.00 Kindle edition.

Or go to https://pvtgov.wordpress.com and search on Common Sense. A preface can be read here Preface to HOA Common Sense. SHALL WE MOVE AHEAD IN A MEANINGFUL MANNER?

The roles of the Supreme Court vs the Legislature

At today’s Senate confirmation hearings of Judge Jackson, an intriguing dialogue took place between Jackson and Senator Lee (Utah).  The topic raised by Lee focused on the role that the Supreme Court is to say what the law is, and the role of Congress (or state legislature) is to say what the law should be creating public policy. The Court deals with the policies set by Congress.

The role of homeowner rights advocates is to say  to the legislatures what the law should be with respect to HOA-Land.  It is not to say that this happened to me and it’s wrong, or my HOA does so and so, which does not rise to the level of setting policy for all HOAs/condos  — no special laws for special entities.

And that’s another area where reform legislation often fails — too local.  Reforms must be broad as to have general concern for the state; as the courts have held from time to time, “This case Involves legal issues of statewide importance.”   And it must be explicitly stated or  implied.

Public policy today is harmful to the private property rights of HOA owners, and to a denial of due process protections and violations of the equal protection of the laws, treating HOAs as if they were independent principalities.  These policies and attitudes have created unjust, bad laws enforced by the courts, and used as precedent for more bad laws.

The cycle ends by advocates addressing the root cause of pro-HOA laws that treat HOA members as second-class citizens, which they are not!

Do you stand behind the US Constitution or your HOA ‘constitution’?

Many courts have referred to the Declaration of Covenants, Conditions and Restrictions (CC&Rs) as the HOA constitution.

Arizona’s HB 2158 is a second try (Arizona HB 2052 restores homeowner constitutional speech protections ) to prohibit restrictions on HOA members’ freedom of political speech with respect to HOA governance issues and matters.  It has passed put of committee and Caucus.

This important bill has been sitting for an extended 2 week time awaiting the House leadership to schedule it for a full House vote of all the members. NOT A GOOD SIGN!  My years of experience lead me to believe it does not have the support of the leadershp that has the right, under House Rules,  to withhold bills from further votes.

HB 2158 (2022). You can read the bill at the legislature’s website. Read the important amendments below. This is your chance to stand up for constitutional protections against the CAI lobbyists, many whose members have been or are SCG directors – conflict of interest!

“L. Notwithstanding any provision in the community documents, an associociation [sic] may not prohibit or unreasonably restrict a member’s ability to peacefully assemble and use private or common areas of the planned community . . . . An individual member or group of members may organize to discuss or address planned community business, including board elections or recalls, potential or actual ballot issues or revisions to the community documents . . . . The association shall not restrict posting notices of these informal member meetings on physical or electronic bulletin boards used by the association for posting notices for the association’s or board of director’s official meetings.”

This bill has support from the Nevada Supreme Court opinion in Kosor (NV supreme court upholds HOAs as public forums (re: Kosor 2021)) that contained several California opinions serving as legal precedent.

 “[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 . . . legitimate and valid criticisms of your HOA and its president and board are protected from HOA lawsuits of defamation and libel.”

“Nextdoor.com post qualifies as a public forum for the purposes of anti-SLAPP protections. . . .these steps [Kosor’s statements] do not seem to differ significantly from that which might be required to view posts on Facebook; that is, a post on Nextdoor.com is as compatible with expressive activity as one on the other platform, which we have already held can support a public forum.”

“The HOA here is no less of ‘a quasi-government entity’

* * * *

The following is an excerpt from a lengthy email sent to me by a long time AZ homeowner rights advocate, Dennis Legere. It and his email are made public with Dennis’ permisssion.  It  reveals the obstacles an hostiity he faces trying the get HOA reform legislation to restore lost rights and freedoms. It contains his comments on the heavy opposition  from CAI and AACM (AZ managers association, CAI trained).

“The ridiculous nature and hidden motivation of the HOA trade groups [CAI and AACM] is what makes any HOA meaningful legislation so difficult to get introduced or protected from demands from the trade groups for provisions that benefit them only.”

Take back controll of your HOA!  Write your Representative in support of this bill. Also write the sponsor, Jack Kavanagh (jkavanagh@azleg.gov) and the House leaders in support of this bill urging that it be submitted for a hearing by all the House members. Do it today!

House leaders:

Rbowers@azleg.gov – Speaker (R)

tgrantham@azleg.gov – Speaker Pro Temp (R)

btoma@azleg.gov – Majority Leader (R)

lbiasiucci@azleg.gov – Majority Whip (R)

rbolding@azleg.gov – Minority Leader (D)

ddegrazia@azleg.gov – Minority Whip (D)

jlongdon@azleg.gov – Asst Minortiy Whip (D)