HOA bill of rights history updated

A brief history[i]

It should be noted when reading this brief history that in 1992 Community Associations Institute (CAI) modified its tax-exempt status from education (501(c)3) to a business trade entity (501(c)6) with increased  lobbying rights.[ii]

Prior to 2000

In 1992, Roger Dilger wrote,

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;[iii]

In 1994 Evan McKenzie said it plainly, and is true today,

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]. (p. 148).[iv]

Editors Barton and Silverman published Common Interest Communities in 1994, a report on 12 early HOA (CID) research studies addressing the debate between HOAs as private governments in relation to public government.[v] Their conclusions in regard to the environment and culture of HOAs included:

Our research shows the tension created by combining neighboring and political  social relations into this form of organization [common interest homeowner’s association].

This means that the association’s objectives can only be decided on through [sic] discussions among the homeowners. As a result, the homeowners’ association needs to meet the basic democratic standards of openness, fairness, and representativeness to its members.

The model of the informed consumer choosing the mandatory homeowners’ association and its detailed restrictions, the ‘servitude regime’, fails to describe reality.

[T]hey [certain homeowners] reacted with strong, negative emotions to apparent infringements on their own rights as private property owners. These residents treated the governing bard of directors not as trustees of the public interest but as neighbors who had unfair powers over them.

Our findings pf pervasive conflict and fear of conflict, accompanied by apathy and avoidance within the community, run counter to the normal picture of community organization.

Steven Siegel wrote in 1998,

Many RCAs exercise powers traditionally associated with local government. . . . Although the traditional view of RCAs is that each homeowner consents to the regime or chooses to reside elsewhere, Siegel rejects this view and suggests instead that RCAs are the product of forces other than consumer choice, including local government land use policies and fiscal pressure on local governments leading to the privatization of local government services. Because of the traditional view, RCAs 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.[vi]

As early as 1999 homeowner advocates,  the late Lois Pratt and Samuel Pratt, made their case for a homeowner bill of rights, writing,[vii]

The association shall exercise its powers and discharge its functions in a manner that protects and furthers the health, safety and general welfare of the residents of the community’[citing NJ law]. . . .  In essence, this is the standard that defines the fundamental right of homeowners and the obligation of those in power. Every action of an association must conform to the standard: Does it promote the welfare and protect the rights of the members of the association?

While the topic of ‘Homeowner Rights and Responsibilities’ is frequently presented for discussion – in books, articles, and conferences on RCA management and operations, in state laws, in association by-laws, and in board minutes – the focus of attention consistently turns to the obligations of homeowners, and scant attention is given to homeowners’ rights. To date we have found no document that presents a thorough treatment of homeowner rights.

2000 and later

In 2000, before the Arizona Legislature’s HOA hearing committee I made an appeal for a member bill of rights:

[Homeowner rights advocates] first looked to the existing government, the HOA Board, and having failed to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association and its controlling document, the CC&Rs. What is needed is an inclusion of a homeowners Bill of Rights and the removal of such onerous provisions that make the homeowner nothing more than an indentured servant, living at the suffrage of the board – pleased if the board is benevolent; living in fear if the board is oppressive.[viii]

In 2005, some 5 years after my introductory statement to the Arizona Legislature, HOA member rights — an HOA Bill of Rights, a constitutional issue — took hold.  Nothing developed until The California Law Review Committee (CLRC), in 2005, timidly announced a “Chapter 2, Members Rights, Article 1, Bill of Rights,” in its preliminary draft to revising the applicable Davis-Stirling Act.  It immediately disappeared from the initial draft of revisions, but upon repeated exchanges on homeowner rights by the late Mrs. Elizabeth McMahon and Donnie Vanitzian, and yours truly,

CLRC finally responded in 2005: “CLRC responded with, ‘However, a bill of rights would probably go beyond the substantive rights that are currently provided in the law’ (MM05-03),” and,

George Staropoli objects [2008] to the lack of any substantive extension of homeowner rights. In particular he objects to the lack of any provision addressing the relationship of CID law to the state and federal constitutions. See Exhibit p. 1. As indicated at Exhibit p. 2, Mr. Staropoli first raised these issues in 2005 and was informed at that time that they were beyond the scope of the recodification project. (First Supplement to Memorandum 2008-12).

In July 2006 AARP released its A Bill Of Rights For Homeowners In Associations: Basic Principles of Consumer Protection and Sample Model Statute, authored by Texas attorney, David A. Kahne.[ix]

Furthermore in 2006,

CAI’s Tom Skiba thinks Staropoli’s logic is flawed. ‘The fact is that by statute, common law, contract, and decades of practice, community associations are not-for-profit entities,’ Skiba says, ‘and are and should be subject to the relevant and applicable business law, contract law, and specific community association or common-interest-development law in each state.’[x]

In 2007 I urged the need for an HOA Bill of Rights, citing the intents and purposes of The Preamble to the US Bill of Rights:[xi]

THE Conventions of a number of States, having at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:  And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution:”

In 2007 a currently active CAI member and former President had this to say,

Thus, the question of whether a particular covenant in a contractually-created community violates an owner’s constitutional rights of expression finds its answer in well-established property law jurisprudence.

In 2008, after a few years drafting, the Uniform Law Commission produced it bill of rights, Uniform Common Interest Bill of Rights Act (UCIOBORA) as a result of pressures from homeowner rights advocates, AARP, and others to provide homeowners with a bill of rights.

The Need for a Free-Standing Home Owner Bill of Rights. . . . The reason is that each of these complex Acts has its detractors who have historically blocked adoption of these Acts in any state. . . . [And] of the difficulty drafters in the States may encounter in integrating any new adoption of the existing Uniform Acts with the laws that may already exist in a particular state.  For these reasons, ULC promulgated a free-standing and relatively short Uniform Act that addresses all of the ‘association versus unit owner’ [hints at similarity of ‘management vs employees’] issues touched on during the drafting of the 2008 UCIOA amendments.[xiii]

Tom Skiba, again in an unbelievable 2008 doubletalk statement declared:

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis. . . . The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable.[xiv]

In 2008 Paula Franzese and Steven Siegel wrote with respect to the NJ Supreme Court opinion in Twin Rivers,

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

In 2015 Deborah Goonan appealed to homeowners to write their Congressmen about the injustices in HOA-Land.[xvi] Her sample letter included,

“We have become a nation obsessed with property values to the exclusion of traditional American values,” and

“Governance of HOAs is not currently required to be bound by Constitutional law, thereby resulting in a nation where 67 million people are not subject to equal protection under the law. In HOAs, The Bill of Rights Need Not Apply. The resulting inequality contributes to abusive governance, frequent conflict and abuse of the legal system.”

Goonan again in 2020, referencing Arizona’s SB 1412 (held in Rules due to COVID-19 premature session closing)  and addressing Florida’s SB 623 (having since failed) wrote,

“It’s a 52-page bill that, among other things, seeks equal protection of Constitutional rights for all residents of HOA-governed communities. . .  The Bill of Rights would apply to all Florida HOA-governed communities.”[xvii]

The 2008 Uniform Law Commission’s HOA bill of rights, UCIOBORA, is a document that does not at all read like the US Bill of Rights, or any state constitution’s Declaration of Rights (state constitution equivalent of the Bill of Rights), or even the Declaration of the Rights of Man and Citizen (France, 1793).  Far from it.  Rather it reads like your current CC&Rs and the basic UCIOA with just a number of concessions to reality”[xviii].

The spirit of the US Bill of Rights must be made to prevail over the HOA-Land Nation.

NOTES

[i] Adapted from “HOA Bill of Rights redux,” George K. Staropoli, HOA Constitutional Government (2020).

[ii] Evan McKenzie, supra n.1, pp. 115 -119; Donald R. Stabile, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, p. 144 (2000). Funded by CAI and ULI.

[iii] 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.

[iv] Evan McKenzie, supra n. 1.

[v] Stephen E. Barton & Carol J. Silverman, eds., Common Interest Communities: Private Governments and the Public Interest, Ch. 13, section, “Private Property and Public Life in the Common Interest Development,” Institute of Government Studies Press, Univ. of Calif., Berkeley (1994).

[vi] 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).

[vii] Lois Pratt and Samuel Pratt, A Bill Of Rights For Homeowners In Residential Community Associations (1999).

[viii] Homeowner’s Declaration Of Independence, George K. Staropoli, statement to the Arizona HOA Interim Hearing Committee, Sept. 7, 2000.

[ix] [1] David A. Kahne “AARP HOA Bill of Rights,” AARP Public Policy Institute (2006).

[x]Call &Response,” Christopher Durso, Ed., Common Ground — July – August 2006.

[xi] See “Why is there a need for a Homeowners Bill of Rights?,” George K. Staropoli, HOA Constitutional Government.

[xii]Former CAI president reaffirms property law superior to Constitution.” (2007). Article on NJ Twin Rivers decision, 2007; Link to CAI blog not found Sept. 9, 2020.

[xiii]  UCIOBORA, Prefatory Note, page 1.

[xiv] CAI CEO Skiba in his April 2, 2008 Ungated blog entry.

[xv]  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).

[xvi]Let’s Get Some National Attention on HOA, Housing Issues,” Deborah Goonan, Independent American Communities (2015).  

[xvii]Florida Legislature Considers HOA ‘Equal Protection’ Bill,” Deborah Goonan,  Independent American Communities (February 7, 2020).

[xviii] See “co-opting the HOA ‘homeowners bill of rights.’”, George K. Staropoli, HOA Constitutional Government (2011).

Webinar Lost Constitution – Pt 2

HOA Lost Constitution Webinar

Veritas para justitia

(truth for justice)

The overall intent and purpose of this FREE StarMan Group webinar series is the education and reorientation of HOA members, especially the board of directors,  to long ignored issues of constitutional validity; issues that the public will not find in the propaganda from the Evil Empire.

The next webinar is planned for  Friday, June 5, at 11:00 AM PDT. 

It is a continuation of part 1 and will cover introductory  materials needed to understand the reasons for BOD reorientation. If you missed Part 1, I urge you to view the video and script prior to attending Part 2. The video is available at https://vimeo.com/421950279 and the script is here.

To receive an invitation please respond to gks256@NYU.edu with “webinar” as the subject and the email address that you will use to participate.  Invite email will be sent with info needed to attend.

Session Format

Free ZOOM webinars; mute attendees

The sessions are limited to less than 100 attendees

Time restraint to 30 minutes

Attendees may submit questions via chat to be answered at later session.

Password protected

Will be recorded

We must provoke until they respond and change the laws.

Gandhi

AZ fair elections reform bill SB 1412 moves on

On May 21st, after a long interruption due to the COVID-19 lockdown, the Arizona House passed SB 1412 by a unanimous vote of 11 – 0 in favor. GREAT! It joins California’s SB 323 passed into law last year.

See Authorities for protected HOA political speech — SB 1412 poll and AZ SB 1412 reflects move to HOA constitutional reforms.

HOA board education in constitutionality

HOAs have, as local private governments are not subject to the Constitution, created divisiveness and a separation from the greater public community resulting in member confusion regarding the law and their constitutional rights and protections. StarMan Group presents an online educational series, with numerous authorities, to instruct HOA boards in regard to their obligations “in the best interests of the members”.

This HOA educational series to reorient HOA boards and the public in general is available online under the collection, “Restoring the Lost Constitution to HOA-Land”:

1) HOA Common Sense: rejecting private government, a summary of 6 constitutional defects,

2) The HOA-Land Nation Within America, presenting the scope of outlaw private governments that deny constitutional protections,

3) The Plan to Restructure the Model of HOA Governance that advances an approach to restore the Constitution to HOAs while keeping the desired benefits of the “real estate package,” and

4) Establishing the New America of Independent HOA Principalities,” a history of the HOA scheme.

For a historical perspective of HOA-Land, see: 1) The Homes Associations Handbook (ULI, 1964). (Not publicly available but I have a copy of the 434 page document); 2) Privatopia: Homeowner Associations and the Rise of Residential Private Government (1994), Evan McKenzie; and 3) Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing (2000), Donald R. Stable. (ULI and CAI production).

Restructuring HOAs: “benefit of the member” pt. 1

Mentoring: “inure to the benefit of the member”

Government of the members

Continuing my discussion of the Declaration’s intent and purpose[1] as expressed by “shall inure to the benefit of the member, ” the question arises as to how does the BOD accomplish this task when it has a contractual obligation to many owners. How can the BOD represent the individual interests of the buyer with those of all existing members? Must we accept the interpretation of “member” in the Declaration to really mean “members”? Really!

This concern is of importance and not a mundane, trivial concern because it involves concepts and principles of representative democracy, as claimed by HOA proponents, the will of the people doctrine, vote of the majority, and obedience in conscience. It is relevant because the HOA is not subject to municipal law or the Constitution, but under a binding, private contractual agreement. HOAs are allowed to exist as outlaw governments, operating and functioning outside the laws of this democracy.

Much too often the courts and legislatures have treated the HOA as if it were a municipal government, ignoring the CC&Rs contract and misapplying municipal doctrine and precedent; without applying those aspects of the laws that protect the member’s constitutional rights. For example: allowing the HOA to tax its members — called assessments — with a right of draconian foreclosure, but providing a laughable “due process” known as “a right to a hearing” where the judges are the accusers and judicial civil procedure is an unknown.

Ask yourself: Is this the benefit being provided in the best interests of the members? I think not! And the legislatures do not have clean hands in this matter, not at all!

Maintaining an orderly HOA

The philosophical theory, simply stated, behind a democracy as a direct democracy is the voice of the people. But what does that really mean? First, it means each person gets to have his voice heard in the governance of his community or society along with all others. And that combined, aggregated voice is measured not so much as by shouting but by a vote of the hands or a ballot. Second, our US representative democracy the people elect representatives to speak their voice. In HOA governments members choose a board of directors to govern the HOA as their elected representatives, or their voice.

In both cases the practical application of the voice of the people has been reduced to a vote of the majority and the majority rule doctrine.[2] These were issues that the political philosophers of the Age of Enlightenment — Rousseau, Montesquieu, Voltaire, Adam Smith — had to contend with as necessary for an orderly society even though it was not a true, direct vote of the people. But what about the minority, those who disagreed with the majority position? Well, they had to obey the general will of the people represented by the majority even though they were on the losing side.[3] However, they may not agree in conscience especially if they firmly believe the law is unjust and not fair.

Former AG Meese wrote,

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.[4]

Where is the consensus of the HOA members to constitute the public good? To knit individuals into a true community? Surely not by a hand-me-down contract that the buyer must accept as is without any give and take.

Randy Barnett, Director of the Georgetown Center for the Constitution, wrote,

A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the HOA amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.[5]

With respect to the courts and legislatures upholding tacit (implied) consent, Keith Wittington, Prof. Politics at Princeton, wrote,

Tacit consent purports to provide a rationale for obligating those of us who, by chance or choice, have not made their approval of the government explicit. . . . Perhaps most significantly, we are taken to have consented tacitly to government action if we continue to vote for government.[6]

Understand that when your HOA says the majority rules maintaining that it represents the voice of the owners just remember it’s just a means to maintain an orderly society and to grant the board the authority to govern. What about a member’s agreement in conscience?

This topic continues with Restructuring HOAs: “CAI influence on member benefits” pt. 2 with the CAI School to be posted soon.

Notes

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

[2] State laws governing corporations provide the legal basis for BOD authority and powers. Robert’s Rules provides widely accepted procedures based on majority rule.

[3] For a summary of the will of the people see my Commentary, HOA consent to agree vs. “the will of the majority. For a detailed discussion of agreement in conscience and consent to agree see Randy Barnett, Restoring the Lost Constitution, Princeton Univ. Press, (2004); Keith E. Whittingham, “Chapter 5, Popular Sovereignty and Originalism,” Constitutional Interpretation, Univ. Press of Kansas (1999); Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005).

[4] Id, Meese.

[5] Supra n. 3, Barnett.

[6] Supra n. 3, Whittington.