AZ Senate protects HOA misconduct rejecting HB 2052

The Arizona Senate is still sitting on HB 2052 since a month ago, March 1st,  a bill providing for member participation in HOA governance.  The bill  explicitly states, since the CC&Rs is seen as a contract, what the HOA cannot do and must allow for fair elections and meaningful  participation in HOA governance.

In the past I’ve addressed this constitutional question of fair elections in the HOA model of an authoritarian,  business form of governance.  I’ve provided examples of incidents and court cases reflecting this denial of fair elections, which exist in the public domain, as if the HOA is afraid of the democratic voice of its members.

In this writing I will call to your attention how an upscale, over 1,000 member HOA board — as a representative example of such HOAs — refuses to accept the facts laid before it that provide valid cause to conduct a due diligence examination; and to validate its positions in regard to its fiduciary obligations of good faith conduct and obedience to the governing documents.

Below I’ve copied parts of its application package provided to all candidates for  a director’s position. The package material clearly shows the BOD’s awareness of its fiduciary obligations and its required treatment with respect to the membership.

Obligations  and liabilities of directors

“Directors have a fiduciary duty to the Association and to each member.

“The duty of loyalty requires that:   Directors act in good faith  pursuant to a free, honest exercise of judgment not influenced by considerations other than the best interest of the Association.

“Failure to discharge the fiduciary duty can subject the Association to liability and subject the Director to personal liability. A Director can also be liable for illegal or tortuous acts of the Board of the Association if he/she participates in the decision to authorize the acts or knowingly fails to take steps to avoid the action. “[Emphasis added].

HOA control of the candidate process and campaigning

Getting down to the specific application of HB 2052, the relevant HOA’s candidacy procedures follow, with the opening line stating: “The Campaign and Election Policies have been carefully developed to provide a fair and clean process for candidates and all members.

While the specific policies are not clearly stated as whether prohibited or permitted, the overall tone is definitely of a prohibitive nature. The 14 points are shown as Exhibit 1 below. In sum, they include not using email listings; association facilities or agencies, clubs, etc. websites; no right to hold Q & A sessions independent of HOA;  no right to campaign through social media —  Facebook, Instagram, etc.; all advertising must be HOA approved; distributing flyers outside restaurants, presumably those within the HOA, or on common areas.

The policies of this HOA, and many other large-scale HOA are similar but not so detailed, demonstrate the failure of the board directors to act in good faith and as a fiduciary for the members.  For the HOA to argue that “The ends justify the means and we determine what’s good for the members, but the HOA entity comes first” is unsatisfactory and irrelevant. These policies reflect an authoritarian government that accepts the rejection of fundamental member democratic rights and privileges because they can hide behind the questionable legality of the CC&Rs.

There can be no excuse for HOA directors not being aware of the voluminous materials available for conducting their due diligence with respect to democratic, fair elections and member participation in HOA governance. They have been given plenty of notice, which subjects them to personal liabilities and prevents them from hiding behind “my attorney said it was OK,” or from acts of omission – doing nothing. 

This representative HOA’s policy so informs them of their liability. Yet, nothing is done to correct these violations of good faith. And still the directors, officers, and managers all demand respect! It’s shameless!

What is going on, you may ask?  Well, the board is setting policy for the acceptance of candidates without a vote of the membership. In other words, unless the proposed candidates are accepted by the BOD, the members have lost a candidate of their choosing. They have lost a meaningful participation in the governing of the HOA; they cannot disagree with the establishment!  So, if you thought your HOA was democratic, forget about it! 

Also, the BOD controls how candidates acceptable to them can campaign, placing severe restrictions not found in the fair public elections procedures.  See Exhibit 1 below. Again, members have lost their right to fair and free elections in HOA matters.

AZ Senate’s rejection of HB 2052

It is easily seen that  the AZ Senate supports these undemocratic polices as represented by this HOA’s practices. 

I have maintained that,

“Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

See, CC&Rs are a devise for de facto HOA governments to escape Constitutional government; Reorienting the HOA board – fair elections; HOA Common Sense, No. 6: Fair and just hearings

And furthermore, “CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local federal amd Arizona governments.”  … Privatopia (1994), Evan McKenzie.

It is not too late for the Senators to meet their obligations to uphold the federal and Arizona Constitutions by passing HB 2052 into law.

Exhibit 1. HOA BOD campaign policies.

  1. Using email listings, electronic or websites of Neighborhood Representatives and Alternates, Charter Clubs, Interest Groups, community and specialty groups.
  2. Addressing a formal . . . Group (e.g., Neighborhood Representative, Charter Club, Interest Group, specialty group meetings, sports venues, etc.). However, a person’s right to free speech in casual conversations shall not be restrained.
  3. Participating in formal Q&A sessions and programs other than those sponsored by the . . . Election Team.
  4. Using Association facilities for campaign events for individual candidates.
  5. Removing other candidates’ campaign flyers from approved locations.
  6. Using the official . . . website, Facebook or Instagram social media accounts to promote your campaign or to use your personal social media accounts to defame or incite defamation of candidates, engaging in unkind innuendoes / slander / harassment at any time or in any setting.
  7. Posting campaign flyers on street signs, trees, light poles, motor vehicles, golf cars, lawns, windows, auto windshields, or in commercial buildings.
  8. Defacing approved campaign flyers.
  9. Using balloons, buttons, t-shirts, marked-up election ballot, etc. as campaign tools.
  10. Using advertising of any type (other than approved campaign statement and/or approved personal correspondence).
  11. Using multiple versions of campaign flyers at the same time.
  12. Placing flyers in mailboxes (against the law).
  13. Distributing campaign flyers outside the entrance of or in the restaurants.
  14. Distributing campaign flyers in common areas except as noted.

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.

Reorienting the HOA board – fair elections

Mentoring: Reorienting the HOA board – fair elections

I cannot overstate the profound damaging effect of the boilerplate CC&Rs covenants – the HOA-Land fair elections doctrine — that define the highly inadequate process and procedures alleged to be fair elections and approved by the member. In a democracy, the fair elections doctrine is the means for the expression of the will of the people and the consent to be governed by the HOA’s members. It is the fundamental basis for a valid consent to be governed. Unjust BOD biased election procedures deny the legitimacy of the HOA-Land doctrine.

In Dublirer the NJ Supreme Court held,

Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. . . . [Dublirer’s] message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values. . . . We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.[1]

In California the appellate court held,

A homeowners association board is in effect ‘a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government’ (citing Cohen v. Kite Hill Community Assn).”[2]

Democracy Web[3] clarifies the importance of fair elections in a democracy.[4]

If consent of the governed is the most fundamental concept of democracy, its most essential right is that of citizens to choose their leaders in free, fair, and regular elections. Other rights are necessary to democracy; elections by themselves are insufficient. Yet the right to freely elect one’s representatives and to influence the political direction of one’s government is democracy’s indispensable political foundation.

Without free elections, there is neither the possibility for citizens to express their will nor the opportunity for citizens to change their leaders, approve policies for the country, address wrongs, or protest the limitation of their rights. Elections establish the citizenry’s and the individual’s political rights. They are the ongoing representation of the consent of the governed

As it stands HOAs cannot be described as a democracy, or a democratic business as CAI’s Tom Skiba(CEO) alleged,[5] so long as the current fair elections doctrine remains in place.

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.

In an unbelievable doubletalk and excellent example of the pot calling the kettle black and Orwell’s DoubleSpeak, Skiba asserts,[6]

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. . . .

I for one prefer the democratic principles that have served this country for more than 230 years, as frustrating as the process can sometimes be, rather than the various failed alternatives washed up on history’s shores.

In addition, while the appellate court upheld California’s HOA fair elections statutes,[7] the California CAI Legislative Action Committee opposed the decision in support of democratic functions in HOAs.[8]  And not unexpectedly, this “front-line” position is in conflict with the CAI policy:

Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community. Numerous other owners or residents  serve on committees and help with special tasks as they arise.”[9]

Simply unbelievable! Believable!

State legislation to reform HOA fair elections

I am well aware, and you may raise the fact, that state laws and CC&Rs vary quite a bit in regard to voting and director elections. Some say very little except quorum requirements and secret or mail-in ballots; some require independent elections committees and vote counters, or the right to view the ballots, etc. but they all hold true to the Handbook that places strong control within the hands of the BOD. This is especially true when the BOD must approve candidates or propose amendments or rules without real member participation and voice.

Attempts to correct these injustices are found in many states. I am pleased to see that 2 legislators (Assemblyman Bob Andrzejczak and Bruce Land) in the NJ Assembly understand HOA constitutional issues and have sponsored a bill, A-3163 (2013), accordingly. The Cape May County Herald[10] reports,

Homeowner’s Associations must operate under similar rules and procedures as other governing bodies,” Andrzejczak said.  “A resident’s interest and right to approve and elect board members must be preserved. And setting clearer, more fair and unified set of rules for board elections and a clarifying a resident’s ability to recall will help to do just that.

Homeowners living in developments are still consumers and must be protected under the law,” said Land. “Ensuring their right to fair elections and protecting their right to choose board members, who will make decisions on their behalf, is a measure of consumer protection that they simply deserve as property owners.

California’s SB 323 (2019) fair elections bill was made law stating, in part,

A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association. . . . Section (b) is modified to read, “A member who prevails in a civil action to enforce the member’s rights . . . the court may impose a civil penalty of up to five hundred dollars ($500) for each violation.”

Arizona’s SB 1412, making progress at the legislature, also seeks political content protections in HOA politics. It seeks to prohibit HOAs and condos from restricting political free speech. Members are permitted to associate, meet, discuss, show signs regarding political activity.  Key wording:

“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 . . . .”

Why are these unjust and unconstitutional covenants, conditions and restrictions allowed to stand?   The misguided mission and vision statements meant to deceive; the failure to act in the interest of the members; the failure to reject the business judgment rule[11] that serves to protect the BODs over the rights of the members; and the employment of the inequitable HOA fair elections doctrine that deny a genuine consent of the governed.

The answer is obvious to those willing and able to handle the truth. The vast majority of the members have lost their freedom of mind.[12] They appear to be RWA followers[13] of the authoritarian[14] BOD. They have been thoroughly indoctrinated into the teachings of the CAI School of HOA Governance[15] where real estate attorneys provide advice on how to run the HOA and what’s good for the community.

All the more reason for this seminal position paper, Restructuring the HOA Model of Governance. All the more reason for a restructuring of the HOA model and a reorienting of HOA directors and officers to return lost constitutional principles.

 

Notes

[1] Dublirer v. 2000 Linwood Avenue Owners NO. 2011 069154 (N.J. 2014).

[2] Damon v. Ocean Hills, 102 Cal.Rptr.2d 205 (2000).

[3] Democracy Web emerged from the longstanding effort of the Albert Shanker Institute (ASI) and its founding organization, the American Federation of Teachers (AFT), to foster education for democracy in America’s schools. (Scroll down to About).

[4] Democracy Web,  scroll down to Essential Principles.

[5] Tom Skiba, Community Associations Institute Blog, Ungated, April 2, 2008.

[6] Id.

[7] Wittenberg v. Beachwalk HOA,  NO. G046891 (Cal. App. 4th Dist. June 26, 2013).

[8]Appeals Court Ensures Equal Access During Elections”, Blog of the Community Associations Institute California Legislative Action Committee, July 9, 2013.

[9] Section 8 in An Introduction to Community Association Living (2006),

[10] Herald.com (Cape May County NJ, Dec. 8, 2016).

[11] See Reorienting the HOA board: business judgment rule in the Plan.

[12] See “Cultural Dynamics of HOA-Land,” The HOA-Land Nation Within America (2019); HOA Social Dynamics — Freedom of mind pt. 1 (2020) George K. Staropoli.

[13] Robert Altemeyer, The Authoritarians, (2007).

[14] See HOA political dynamics: totalitarian democracy, George K. Staropoli (2019). “Followers submit too much to the leaders, trust them too much, and give them too much leeway to do whatever they want–which often is something undemocratic, tyrannical and brutal.” See survey on HOA authorianism,

[15] 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.

Restructuring HOAs: “CAI School and member benefits” pt. 2

Mentoring: “CAI School of HOA Governance”

Part 2 addresses the heavy influence of the CAI and its affiliated, shill, organizations functioning as supporters of HOAs and the questionable claim of also supporting homeowners.

CAI heavy influence

Several HOA attorneys have maintained that the expression of the common interest of all the members is found 1) in the Declaration that they all agreed to be bound by and 2) because the members still remain a resident and a member of the HOA. It is through the Declaration itself that provides their benefits and the BOD is not derelict in its duties and obligations to the members. And that’s all there is to it!

However, herein and in my intents and purposes paper[1] I argued that the BOD’s mission statement, vision and values are one-sided and heavily influenced by the mindset created by the CAI School of HOA Governance[2] that neglects constitutional protections for the members. The alleged benefits for the members as contained in the CC&Rs do very little to provide the benefits of a democratic government. In fact, they restrict or deny the application of constitutional rights and freedoms, and the privileges and immunities of citizens of this country and their state.[3]

The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

In order to correct these serious defects in the HOA legal model the HOA must be restructured to conform to and be subject to the Constitution and laws of the land. It must begin with a declaration of citizenship to be made a covenant in all declarations, charters, bylaws and other governing HOA documents. State laws and CC&Rs must be amended according as proposed in my HOA Member Declaration shown in part below:

Therefore, the members of the association, having not waived or surrendered their rights, freedoms, privileges and immunities as citizens of the United States under Section 1 of the Fourteenth Amendment, and as citizens of the state within which they reside, the CC&Rs or Declaration for any planned community, condominium or homeowners association shall state that, or be amended to comply . . . .”[4]

In order for this revision to become a reality the BOD and HOA members must be reoriented away from the teachings of the CAI School and toward the forgotten and neglected principles and values of democratic America. The CAI School needs to be replaced with a qualified program of education and training on municipal government: its structure, objectives and mission, functions and operations.

CAI support of HOAs

Why does CAI oppose holding HOAs subject to the Constitution? How can CAI take this stance and still assert that it’s supportive of the homeowners? It seems by adopting the WW II Fascist philosophy of Italy’s Il Duce, Benito Mussolini, who proclaimed, “All within the state, nothing outside the state, nothing against the state.”[5] And who described Fascism a being “for the State; and it is for the individual in so far as he coincides with the State[6] Just substitute “HOA” for “state” and it all makes sense. Essentially, this is CAI’s true position on HOA governments.

While there is much to support and justify the need to remove the heavy influence by CAI over HOA-Land, a few instances are provided.

In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . raises the likelihood that judicial intervention will become the norm.”[7] (NJ).

In other words, CAI doesn’t want our constitutional judicial system to be applied to HOAs. They can rule themselves without judicial oversight. All other forms of local government, including the most liberal of self-government charters under the home rule doctrine are subject to the Constitution.

AGAINST

[CAI] Kathe Barnes, Self(02/10/2020); Jason Barraza, AZ ASSN OF COMMUNITY MANAGERS (AACM)(02/10/2020); Terry Carstens, Self(02/23/2020); Quinten Cupps, Self(02/06/2020); [CAI, AACM] Mary Jo Edel, Self(02/06/2020); Alexis Glascock, COMMUNITY ASSOCIATIONS INSTITUTE(02/09/2020); [CAI attorney] Lynn Krupnik, Self(02/06/2020); [AACM] Linda Lang, Self(02/10/2020); Mark Logan, Self(02/10/2020); Dave Norton, Self(02/06/2020); Jeff Sandquist, AZ ASSN OF COMMUNITY MANAGERS (AACM)(02/10/2020); Vicki Sears, Self(02/06/2020); [AACM] Mark Wade, Self(02/06/2020); Donna Wood, Self(02/06/2020); [AZ]

The above quote represents the persons and/or organizations against Arizona Senate bill SB 1412 (2020). The bill would bring homeowner protections for HOA political activity and free speech rights. Note the absence of any identification of several persons who are members of one or the other mentioned organizations, CAI and AACM (AACM is a spin-off from CAI in 2003). That’s 8 out of 14 persons in opposition. Please also note that none of these persons have identified themselves with any HOA. Where are the HOA directors or presidents?

California’s SB 323 (2019) introduced fair elections procedures for HOAs that protect homeowner voting rights. It addressed one of my 6 substantive defects in the HOA legal scheme.[8]   It has become California law. Long time California lawyer Adrian Adams is heavily involved in CAI policy and management at the HQ and chapter levels. He writes:

Last year, the Center for California Homeowner Association Law (CCHAL), an organization hostile to community associations . . . The train wreck legislation . . . The bill also forces members . . . In another hostile move against associations . . . The California Legislative Action Committee (CLAC) is a volunteer organization consisting of homeowners and professionals serving homeowner associations by monitoring legislation, educating lawmakers, and protecting the interests of those living in community associations.[9]

CAI’s California LAC:[10]

The California Legislative Action Committee (CLAC) is a committee of Community Associations Institute (CAI), a national not-for-profit educational and resource organization dedicated to fostering vibrant, competent, harmonious community associations. CLAC consists of homeowners and professionals serving community associations.

We worked hard to defeat SB 323 and we came very close, especially on the Assembly Floor where the bill passed and was sent to the Governor. . . . Let’s work closely together to make sure legislators understand the negative consequences SB 323 potentially will have on community associations.

It should be obvious by now that CAI is not a friend of the homeowner in spite of its lofty, high sounding pronouncements, policies and Best Practices. The acts of its members both in CAI HQ and in the numerous state chapters speak an entirely contradictory message. CAI is there to support the HOA and the BOD that is the real person representative of the HOA association. It is obvious that granting and admitting individual rights and freedoms to the homeowners presents an obstacle to its personal agenda; CAI is a business trade tax-exempt nonprofit entity to make money for its members, the attorneys and managers for the most part, the

After consideration of the above and earlier posts under Restructuring HOAs, I ask and answer: Does the Declaration provide covenants that implement and accomplish the intents and purposes of the HOA that serve the interests of the members? My answer is NO. It raises the question of why BODs accept the HOA model of local government and resist revisions in order to bring the HOA within the Constitution for the protection of its members?

Notes

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

[2] The basis for a definition can be found in “CAI claims Factbook 2018 at home with Democracy in America.”, in HOA Constitutional Government, footnote 9.

[3] See “Would the HOA legal scheme collapse under a democratic form of government?” in HOA Constitutional Government (2014); “HOA-Land and the decline in democratic institutions” in HOA Constitutional Government (2019).

[4] See “HOA member Declaration of US and State citizenship” in HOA Constitutional Government (2012).

[5] See Benito Mussolini: What is Fascism, 1932.

[6] Fundamental Ideas of Fascism,” Benito Mussolini, Souciant, Inc. (2016).

[7] CAI amicus curiae brief in CBTR v. Twin Rivers, 890 A.2d 947 (NJ Super. App. Div. 2006).

[8] See HOA Common Sense: rejecting private government, Democratic elections, No. 5. (2019).

[9] Adams Stirling Newsletter, Adrian Adams, Esq. (Feb. 24, 2019). Adams is a member of CAI’s Community Association Research Foundation, CAI chapter director and CLAC delegate.

[10] CAI-CLAC Feb. (2020).

 

 

 

Restructuring the HOA model

This Commentary is a position paper on the need to restructure the HOA model of government.  It is not light reading and requires serious consideration and understanding  of the underlying issues.

Background

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,

In my activist 20 years of HOA reforms, irrational fears have been inculcated in the general public and are the primary elements for the failure to resolve 54 years of endemic HOA issues: fear of loss of home, fear of financial and emotional stress, fear of legal actions and lawsuits, fear of social isolation, and fear of property devaluation. These have been advanced by pro-HOA forces.

The current embodiment of a utopian society (HOAs) was formulated in 1964 (The Home Association Handbook) and CAI was created in 1973 to address the growing dissatisfaction with HOAs. In 1993 it dropped being a tax-exempt educational nonprofit to become a business trade group in order to more effectively lobby state legislatures to protect the status quo of the HOA model of governance.

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!

BOD Reorientation to review the HOA mission

The restructuring of HOAs starts with the education and reorientation of the BOD to better achieve its primary, broad purpose which is to provide quality services to its members. The only statements or covenants relating to the intent or purpose of the HOA focus on the interests of and benefits to the members, and neither to investments nor to social welfare services. The BOD must face the question as to how the best interests of the members can be accomplished by a rejection of the US and state constitutions.

“Maintaining property values” cannot be taken as an investment in your home. The CAI model focuses on punishment and enforcement of violators of the governing documents or those who fail to timely pay their assessments. The governing documents (CC&RS and bylaws) contain restrictions and limitations and any rights or privileges that the members possess under the CC&Rs are laughable when compared to the Bill of Rights or state Declaration of Rights.

I firmly believe that the BOD must undertake a serious, in-depth review of the original intent of HOAs and where it is today and where it’s going. For example, surely an HOA is not a social welfare organization but a private membership nonprofit regardless of any misguided ruling by the IRS. This review must be conducted in an open and unbiased manner free from the years of CAI indoctrination by the CAI School of HOA Governance (my appellation), to which far too many BODs have long been a willing and obedient adherent. Being under the spell of the CAI doctrine, the BOD has lost its freedom of mind, has neglected principles of local government, and functions outside constitutional application.

BODs, in general, resort to CAI not for legal advice on how to run the HOA government but as a crutch to allow them to dodge their obligations to govern the people — their residents — living in the territorial subdivision of the planned community or condo. Why would CAI speak of or admit to the Bill of Rights or to state Declaration of Rights and lose control of the industry? Why haven’t they?

In addressing the management of nonprofit organizations, eminent management consultant Peter F. Drucker wrote: “The first job of the leader is to think through and define the mission of the institution.”  He makes the point that the worthiness of a mission statement lies not in its beauty but in leading to “right action.” It has to be operational, otherwise it’s just good intentions. “One of the most common mistakes is to make the statement [a series] of good intentions.”

CC&Rs are a devise to circumvent the Constitution

The recourse to the real estate laws of equitable servitudes giving legitimacy to the declaration of covenants, conditions and restriction has gone afoul with respect to HOA governments. “The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.” The governing documents reflect the undue influence of the CAI School of HOA Governance, and the failure to accept the reality that the HOA is a de facto form of local government that functions outside the US Constitution.

The Homes Association Handbook model set the tone, the character, and the culture of the HOA “community” from which the boilerplate declarations flowed with the help of CAI lawyers. There are no public disclosures of the loss of individual property rights, or the legislative immunity granted to BODs, or the unjust elections procedures, or the absence of constitutional due process protections, or court rulings of implied waivers and surrenders of individual rights, just to mention a few.

It goes without saying that private HOA governments must be restructured to return to the Union and restore member rights, freedom, privileges and immunities. It can be done and must be done. Plessy v. Ferguson (163 US 537 (1896)) was overturned by the US Supreme Court fifty-eight years later in 1954 by Brown v. Bd of Educ. (347 U.S. 483 (1954)). So can years of unjust HOA Acts and statutes be overturned in the light of today’s knowledge and conditions.

And so, it starts with the review and restructuring of the purpose and intents of the HOA to establish a climate and culture of the HOA conforming to the principles of democratic government as required of all local government by the Constitution.

consulting SIG image1

Further reading: