CAI claims Factbook 2018 at home with Democracy in America.

I am quite impressed with CAI after looking over its latest Factbook of 2018.[1]  It is a voluminous document of some  297 pages in total that includes numerous copies of government generated reports and studies, as well as from secondary real estate attorney articles and papers.[2]  It is a lofty presentation designed, I believe, to give the distinct impression that CAI is indeed the all-knowing expert regarding HOAs: that CAI has all the answers!  It reminds me of a product of the Ministry for Public Enlightenment and Propaganda.[3]

In more concrete terms, CAI appears to be reacting to outspoken advocate criticisms by reaffirming and doubling-down on its support for HOA-Land. The Factbook contained some surprises of a material nature that I took note of and that I  will briefly address here.  Each of the following five CAI positions in the Factbook is an affirmation that HOA-Land represents a better community and society than found under the US Constitution; which is not recognized in the Factbook or given just lip service elsewhere!

Furthermore, I found the audacity of CAI to equate HOA contractual, private,  de facto governments with the 1832 America presented in Democracy in America to be very disturbing (see Finally below). It reflects a severe detachment from reality in a document purported to be factually based.

First, In Part 2,[4] CAI makes an effort to explain the 4 goals of the Factbook that starts with a lecture on “evidence-based management.”  It distinguishes anecdotal evidence as contrasted with science-based evidence in deciding the course of action, or “intervention” as stated in the document. It’s a dissertation on what makes a solid basis for analysis and conclusions.

However, it’s a slap at those people who just “tell stories” without proper vetting.  Of course, it is silent on and not related to the manner in which the Factbook  got its facts, and gives the impression: “not us but those guys, you know who.”  I took it as an attempt to defend their studies as unquestionably valid. Advocates can indeed make CAI twitch!

Second, Part 2[5] contains a surprising link to the Stabile book of 2000[6] that is a self-congratulatory  book, in my view, funded by CAI and ULI.  What are they thinking?  Here’s a quote from Stabile.[7]

[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.

It has a documentary style, but not a very flattering one to CAI as shown above,  if you reject its premise that HOAs are not a political government. A detailed analysis of the Stabile book can be found in my History paper.  Scroll down to “2000.”

Third, another lecture now on how HOAs function is addressed via a link to a CAI published 26-page book on sale for $15.00.[8]  A short, one-page excerpt is provided that reads right out of the CAI School of HOA Governance.[9]  Nothing new here. No mention of violations of the US constitution, bill of rights, due process or equitable servitudes, etc.  But then again, I forgot. Who am I?  I’m not even a lawyer. I’m David battling Goliath.  CAI has all the answers.

Fourth, another shocker for me.  A link is provided to the Susan Fletcher French article, Making Common Interest Communities Work: The Next Step.[10]   But what are they doing???  As stated above, the reference is not flattering to CAI since it is an obviously biased statement coming from a legal authority produced to guide judges in common law. And it’s a 2005 article and we would like to know what has happened over the past 14 years!  Here’s part of her conclusion:

I conclude that states should provide administrative support for community association governance with education, dispute resolution, and enforcement services. Common interest communities have become too important to leave to their own resources and the judicial system. There is much that states can do and there are several models of successful programs. They should take the next step.

I hope you all recall that French was the lead editor (Reporter) in the 2000 rewrite of the Restatement 3rd Equitable Servitudes.[11]  She is referenced in the Foreword:

Professor Susan French [Reporter (chief editor/contributor) for this Restatement] begins with the assumption . . . that we are willing to pay for private government because we believe it is more efficient than [public] government  . . . . Therefore this Restatement is enabling toward private government, so long as there is full disclosure.

Finally, to all my disbelief, CAI references  Alexis de Tocqueville’s 1835 Democracy in America, and equates  HOAs as a continuation of America’s striving

“For continuous improvement at all levels of society and government.” Alexis de Tocqueville reflected on the constant activity that characterized America in the 1830s for continuous improvement at all levels of society and government. Little has changed since that time. He would be right at home at a community association board meeting, at a CAI Chapter program or at a national CAI Conference or Law Seminar.”[12]

The implication is that HOAs are also striving for the same  improvements as de Tocqueville discusses in 1830s America.  Not so! Understand that Democracy is a 2-volume set of some 800 “fine print” pages encompassing a multitude of aspects and conditions about America in the early 1830s. It is replete with discussions of the Constitution, of the American values and principles of liberty and freedom, and of the workings of our democracy. Not a word about contractual private government!  It is unconscionable for CAI to make such an unfounded comparison that implies private HOAs are a natural development for the making of a better America.

CAI is silent and does not address Professor McKenzie’s comments in his seminal 1994 book, Privatopia,[13]

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

The balance of power between the individual and the private government is reversed in HOAs. . . . The 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.

 

In summary, CAI comes across as dogmatic – not recognizing or accepting any statements contrary to its beliefs — and suffering a cult-like blindness to reality. The Factbook is an act of desperation and an inability to defend its position in an open debate as I had proposed back in 2006.

In a brief phone call during which he’s quiet and almost courtly, he explains that Common Ground is CAI’s “house organ,” and that he’d be more comfortable with a debate or similar format where he could express himself at length, without the risk of being quoted out of context.[14]

 

References

[1] Community Association Fact Book, 2018, Parts 1 – 8 (July 4, 2019).

[2] Parts 4 -6 and 8 are indexes to details on each of the states and are not included in the total pages. There are also several links to other reports, articles, studies, etc. also not included in the total page count above.

[3] See in general The Avalon Project, Yale Law School.

[4] FB Narrative, page 7.

[5] Id.

[6] Donald R. Stabile, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, Amazon.com. A 256-page book priced at $95.00.

[7] See my Commentary, “A historical look at the purpose and intent of the HOA promoters,” HOA Constitutional Government (January 27, 2008).

[8] Supra n. 3, page 8.

[9] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[10] Susan Fletcher French, Urban Lawyer, Vol. 37, Summer 2005.

[11] the Restatement (Third) of Property: Servitudes, Susan F. French, Reporter, the American Law Institute  (2000).

[12] Supra n. 1, Part 2, section 4.

[13] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[14]The Lone Ranger has never stopped fighting for HOA truth and justice,” quoting CAI Common Ground Editor Christopher Durso, (Common Ground, May/June 2006).

state legislature not concerned about the plight of HOA members

Dianna Wray does an excellent, detailed and historical presentation of the unchecked and unregulated power of de facto HOA governments operating outside of constitutional protections – the lack of due process and the unequal equal protection of the law. Without mentioning the above, Wray presents several stories of Texas HOA abusive power that strikes to the heart of homeowner mistreatment and injustice, as the legislature ignores his plight as if Texas were a banana republic. And rightfully so, she extends these unthinkable conditions to occur in all states.

The author warns her readers that,

HOAs are almost completely unregulated and the law is heavily weighted on the side of the homeowners’ associations — they almost always win. In Texas there is no regulatory agency overseeing homeowners’ associations. Most county attorneys and district attorneys won’t get involved with an HOA unless there’s evidence of criminal wrongdoing, and the website of the Texas Attorney General’s Office explicitly states that the office does not investigate homeowners’ associations and advises homeowners to get a private attorney. Most private attorneys conclude that the business just isn’t worth it.

And that goes for all state attorney generals.

She quotes Texas attorney David Kahne (co-author of the AARP bill of rights for homeowners, among other things).

Typically by the end of the lawsuit, it’s been such a hassle, most of the lawyers representing homeowners swear they’ll never do it again. . . . It’s lawsuits over grass growing in the driveway cracks and people who have fallen behind on their dues because of real problems in their lives and then they end up with thousands of dollars of debt, most of it owed to the attorneys.

Wray adds that Evan McKenzie argues,

that HOAs erode homeowner rights because they create a system in which the HOA is never held accountable for its actions. ‘Why do people think you can live in an urbanized area without any form of government except for these privatized entities that are under no legal obligation to uphold your rights?  (My emphasis).

Readers of this commentary must understand, and must understand very well, that the laws on the books in all states are grossly inadequate for the purpose of compliance.  When laws, like HOA laws, fail to provide effective enforcement penalties against perpetrators, like HOA boards, they are merely recommendations and suggestions.  The legislators are relying on the good will of HOA boards, attorneys and managers to voluntarily comply not only with the letter of the law, but with the intent as well.  The record clearly shows that this is not so!

Obviously in disregard of the above criticisms of the HOA-Land legal structure, HOA supporters respond with the same ol’ platitudes. From the HOA attorney,   “Believe me, a lot of people complain about HOAs, but the alternative is chaos . . . It seems like I have a really mean, nasty job, but if somebody doesn’t do it, suburbia would collapse.”  

From the Houston Texas CAI chapter Executive Director,

Without HOAs, common areas wouldn’t be kept up and people could paint their front doors scarlet, park boats on their lawns, put up countless yard signs, keep any number of pets and have six-foot-tall topiary rabbits in their front yards, destroying the look and value of neighborhoods.

They are resorting to fear-mongering!

These supporters, including CAI, are saying that they do not trust their fellow Americans and concerned people must resort to authoritarian contracts and strict enforcement of the rules in order to have a healthy, desirable and joyful community. Can you believe that? Talk about breeding hostility and division among your neighbors. One false move, a report by any “kindly” neighbor, can bring down the wrath of the HOA enforcers.

The author reminds of events in Texas long forgotten or not known to the people, even in Texas, of the battles of Winonah Blevins (2002) and Geneva Kirk Brooks (2004), pioneers in the fight for homeowner rights. Before these cases, won by the homeowners, there was the outrageous Texas Supreme Court decision in Inwood v. Harris (1987) in which the Men in Black ignored the explicit wording of the Texas Constitution regarding foreclosure protections and permitted Inwood to foreclose on Harris. (A few years later, apparently in response to the growing outcry of the court’s shameful special interest decision, the legislature amended the constitution to validate the Harris decision.)

 While the article is lengthy, it is not a manual of how to get along in HOA-Land and remain happy by just following the rules. Or a list of “should-be” or “ought-to-be” statements that are unattainable and beyond the norms of society, like you must accept the surrender of individual liberties for the greater good. It deals with the reality before homeowners and the intentional failure by state legislatures — in all states — over the years to stand by the people and not the special interests.

It is a “telling it like it is,” or that it could easily be that way at any time in your HOA with a changing of the HOA board, or a new attorney, or a new management firm. The homeowner, as presented in Dianna Wray’s well written article, lives at the suffrage of the board; helpless to defend themselves against HOA abuse without a costly battle. Remember that well!

 

Tipping Point: In Huntington Village, the Community Association has All the Power, Dianna Wray, Houston Press ( http://www.houstonpress.com/news/tipping-point-in-huntington-village-the-community-association-has-all-the-power-7998755, Dec. 15, 2015).