How authoritarianism operates in an HOA

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. 

CCHAL[1] argues be careful of   “’rules’ put in place in the name of ‘health and safety.’  Yes, some – but not all – may be necessary, but the pandemic creates an environment for putting in place some repressive rules too.” And reading the Golden Rain proposed rules, yes, in my opinion also, they are repressive.

 1. Pay a $500 deposit to get the ball rolling;

2. Apply for a permit at least three days before a planned protest;

3. Pick a maximum one-hour time slot during the day for the demonstration;

4. Ensure all participants social distance and stay out of roadways;

5. Plan on paying for any damage and cleanup costs;

6. Host protests only in an area bounded by three roads.

Proposed only rule 4 can be argued as in the interest of members health, safety and welfare as the GR CEO stated to the East Bay Times “This comes back to safety.”[2]  Rule 5 comes across as intimidation as this topic is already contained within the governing documents, and assumes violence will occur. According to the article, indicating another overly broad sweep at restrictions, GR’s intent was directed at dealing with protestors, as occurred in May in regard to BLM, yet the rules apply to any gathering of members. Rules 3 and 6 appear to be arbitrary restraint on free speech.

Rule 1 is punitive and is in violation of California law enacted in 2017, SB 407,[3] as pointed out by CCHAL. In general, the GR board/trustees seem to have ignored the law and cannot say that they didn’t know the law.

According to East Bay, “Golden Rain CEO Tim O’Keefe told the committee that the Davis Sterling Act doesn’t apply here because the foundation is a private organization, not a ‘common interest’ area like a homeowner’s association.”  That’s an unbelievable and irresponsible falsehood by the GF CEO!  In the 2017 directly involving Golden Rain, the appellate court held,

The court found that GRF is an ‘association’ subject to the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.) (the Davis-Stirling Act). fn. 1 We agree, and affirm.”  (Golden Rain Foundation v. Carol Franz, 163 Cal.App.4th 1141 (2008). (Plaintiffs were Leisure World members).

HOA members should understand that the common defense of BODs is “upon advice of attorney,” and in this case we hear that “the proposed rules had been reviewed by the organization’s attorney.”[4]  Are you aware of attorney rules of professional conduct?  You would be surprised what they have been getting away with as I inform readers in my post.[5]

Two things stand out in my mind, from years of studying and analyzing BOD motivations and defenses, many times supported by the HOA attorney’s opinion: these HOA boards/trustees are rogue BODs functioning with complete disregard of the laws.  HOA members BEWARE of your BOD and the opinions of its attorney!

Relevant sections of SB 407 include:

4515.  (a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.

(c) A member or resident of a common interest development shall not be required to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy, in order to use a common area . . . .

(d) A member or resident of a common interest development . . . may bring a civil or small claims court action to enjoin the enforcement of a governing document.  The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.

There is no legitimate justification for GF’s proposed rule changes except to assert its power and control over the members. In general, including GR, HOA boards are authoritarian and supported by too many members who are authoritarian followers.  In order to successfully deal with the unjust powers and authority of BODs,  the legislators, the public, and HOA members in particular  need to read and understand the social and political culture of HOAs. Visit my posts on authoritarianism in HOA-Land.[6]

References


[1] Marjorie Murray, email letter of July 26, 2020,  Center for California Homeowner Association Law (info@calhomelaw.org).

[2] Annie Sciacca, “Want to protest at Rossmoor? Schedule it during business hours,” East Bay Times, July 10, 2020.  

[3] Chapter 236, California Revised Code (2017), SB 407. http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB407

[4] Id.

[5] See my post,  A lesson in professional conduct for HOA attorneys (2020).

[6] George K. Staropoli, HOAs undermine principles of democratic America (2020); Authoritarianism in the HOA-Land Nation (2020).

 

Lost Constitution webinar series – #1

I’d like to thank the attendees at this first of a series of seminars on Restoring the Lost Constitution to HOA-Land. It was my first Hosting displaying important documents.

As mentioned in the seminar, I am primarily focused on legalities but also concerned about the lack of ethical and moral values surrounding HOA-Land.  As an update, I had a recent call from a disabled widow who was allowed to have a front gate in her HOA for 23 years.  A new BOD arrived and differences arose resulting in  a citation for unapproved gate.  The BOD said prove the approval by  some prior BOD, and she couldn’t.  What happened to  the attributes of a genuine healthy community of neighbors helping another in distress, who have compassion and a charitable heart, all making for  a healthy “village”?  NADA!

Welcome to the New America of HOA-Land.

I hope you will find the webinar (see link below) helpful and useful in bringing about necessary changes by alerting your HOA BOD and fellow members as to the real nature of HOA-Land; and the private agenda of CAI.  This webinar argued, and provided documentation, that the dominant entity,  promoting its role as an educator, proclaimed HOAs to be independent principalities operating without government and judicial oversight.  And preferred it that way. That is really secessionist if you think about it for a moment. And harmful to our democratic system of government and its values and principals.

I will invite you all again for the continuation of Introduction as I delve deeper into what HOA-Land is all about; and CAI’s role and dominance over the legislators, the media, the BODs  and HOA members.  I am considering having a panel of a few advocates for an interchange of views. Temporary date is scheduled for Friday, June 5th.

I have uploaded the recording for all to see and distribute with accreditation. Look here  https://vimeo.com/421950279.

The unclean hands of the HOA

I have spoken of the unclean hands of the HOA in “HOA Common Sense No.4, Consent to be governed” and in “No.8, Draconian punishment and intimidation.”  Unclean hands is a legal doctrine that denies a plaintiff’s (HOA) complaint if the plaintiff has done anything wrongful or unfair relating to the issue at hand. If a defendant (homeowner) can show the plaintiff had “unclean hands,” the plaintiff’s complaint will be dismissed or the plaintiff will be denied judgment.

In his dissenting opinion in Olmstead v US  (1928)[1] Justice Brandeis wrote (my emphasis),

The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. The maxim of unclean hands comes from courts of equity. But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the government is the actor, the reasons for applying it are even more persuasive.

The court’s aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. Then aid is denied despite the defendant’s wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination.

This doctrine also applies to the government at all levels.  As Brandeis continued in his dissent,

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

And it also applies to HOA private governments, because it’s an equitable protection.  We all know that HOA boards have, in all too many instances, grossly dirty unclean hands.  We see the anarchy with 50 different state laws and the 324,000, more or less, independent CC&Rs “constitutions.”

 

Note

[1] Olmstead v. U.S., 277 U.S. 438 (1928).  This case involved federal wiretapping, which back in 1928, the SC found no violation of the Constitution.

On stopping HOA bullies and rediscovering lost values

Excerpts of guest blogs by George Staropoli on Ward Lucas’ blog, Neighbors at War!

 

Rediscovering Values

For a society, a community, to function in an orderly manner there must be not only rules, but a firm belief in the need to enforce just and fair rules and laws. Political philosophy says that where laws are unjust and unfair, then the democratic government is not legitimate, cause the reason for forming a social contract and surrendering freedoms is just that.

On Stopping Bullies

Proposed HOA reforms must include necessary and sufficient detriments to put an end to HOA bullying and abuse. People do not become angels when they become a board member, like our astute, politically savvy legislatures would like you to believe.

 If angels were to govern men, neither external nor internal controls on government would be necessary.  James Madison, The Federalist Papers, # 51.

 

 

Proposed US Constitution amendments will help HOA reforms

I have cautioned my followers about the ‘games’ that lawyers play with the precise wording and grammar used in bills and, eventually, the resultant laws.  They love to parse the sentences and apply interpretations that have a plausible relationship to a valid legal issue.  When they seek a ‘loophole’ in the law the plausible becomes unreasonable, yet the courts will go through the exercise and entertain a challenge to the law.

What is needed is a tightening up of the laws and bills as a result of an analysis of how their wording can be used to get around the intent of the bill.  With respect to HOAs this is an unlikely task when state legislatures favor the HOA legal scheme currently adopted as public policy. But there is hope stemming from the very top, from retired Supreme Court Justice Stevens who has proposed Six Amendments[i] to the US Constitution.  Below are 2 of the 6 proposed amendments that are particularly important to HOA reform legislation.

 

The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) — This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution. [New amendment].

In the “Anti-Commandeering Rule” Justice Stevens found it necessary to add “and other public officials” to explicitly bind government officials to obey the Constitution and laws of the land.  I am sure that the Founding Fathers did not think such an explicit statement would or should be necessary.  But, it’s obvious that our elected officials have forgotten their duties and obligations to the Union in favor of their political party dogma and their concern for their legacies. Just review recent state supreme court HOA decisions and the numerous pro-HOA state laws to understand the need for this constitutional amendment.

In the “Sovereign Immunity” amendment Justice Stevens found it necessary to hold elected officials on the federal and state levels to their obligation not to violate the Constitution.  The common example can be found in every state’s support of de facto HOA private governments unanswerable to, and circumventing, the US Constitution.   Again, one would not think that this would be necessary to state.

Both of the proposed amendments to the Constitution are the result of how lawyers examine the precise wording of the laws and Constitution, and raise “and, if, or buts” to get around the intent of the laws. Or, even to question the intent of the drafters of the bills.  With respect to HOA legal scheme, must we add such specifics to state constitutions and HOA/condo acts?

Bob Frank, a Nevada Commissioner, raised this very question; “Should HOA/Condo Associations Implement US Constitutional Protections For Residents In CC&Rs?  in the HOA Common Sense LinkedIn group (must be a LinkedIn member).  It’s a must read!

 

Reference

[i] Six Amendments: How and Why We Should Change the Constitution, Justice (ret.) John Paul Stevens (Little, Brown and Company, April 22, 2014). (Available on April 22th).