What does “HOA” really mean?

What are we talking about when we hear “I live in an HOA” or “what are my HOA fees?” Allow me to clarify some important concepts and definitions that I have employed to help in understanding what we are really talking about.

  • The term “HOA” is commonly used in 2 different aspects.
    • While commonly used to refer to the alleged community, in reality the “community” is a real estate “package” of homes, landscaping, amenities, and rules.
    • “HOA” more aptly applies to the association itself, which is the de facto – in fact – political governing body of the subdivision or real estate “package.”
  • “Government,” meaning political government, is defined in its general sense as “the person or group that controls and regulates the people within a territory.” Since your subdivision is a territory, that makes the HOA a truly political government.
  • “Private government” is a de facto government as defined above not incorporated under municipal statutes but under nonprofit corporation statutes. As such, it is a functioning government unrecognized by the state as Cuba had been for years.
  • “Quasi-government” simply means for all intents and purposes having all the attributes of a municipal government, except the names have been changed to mislead the innocent public.
  • “HOA-Land” is my descriptive term for “the collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States.”
  • “Structured tribalism.” Tribalism is a term currently in vogue to describe divisiveness in America. “Structured tribalism” extends that view to describe the intentionally planned policy for the acceptance and control of HOA-Land.[1] It views the fragmented HOA-Land as distinct villages and clans.

When I speak of restructuring the HOA, I am referring to the authoritarian, undemocratic body functioning outside of constitutional protections, and making it a democratic government subject to homeowner constitutional protections.

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).

Lost HOA Constitution webinar complete videos

This post allows access to 3 webinar videos on Restoring the Constitution to HOA-Land. The quality improves as I go on — it’s the content, the material, that’s important to learn and understand.

For best viewing press the ‘expand’ icon (lower right) for full screen viewing. Place cursor over video to select menu.

HOA representative government and consent of the governed

George Washington wrote in his Farewell Address (1796), the Constitution “is the offspring of our choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles . . . .”  The Declaration of Independence asserted “that to secure these [inalienable] rights Governments are instituted among men, deriving their just powers from the consent of the governed.”

These two quotes contain the fundamental principles of representative democracy adopted by means of a social contract, the Constitution, which are freedom of choice, ”just powers,” and “consent of the governed.” By virtue of these fundamental principles of democracy, HOAs cannot be considered as democratic governments. Period!

In his article explaining the meaning of the Constitution,[1] Edwin Meese III explains that “consent is the means whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate [and hence just] is whether that government rests on the consent of the governed.” 

In order for HOA governments to be just, legitimate and compatible with the Constitution these fundamental principles must be honored and supported. HOA “constitutions,” those CC&Rs, are not compatible with the US Constitution.

Meese further addresses the differences between “consent of the governed” and “will of the majority” that is a pro-HOA mantra. “The ‘consent of the governed’ describes a situation where the people are self-governing in their communities . . . into which the government may intrude only with the people’s consent.”

He explains that the “Will of the majority” is a political mechanism for decisions to be made by the government. In other words, the BOD makes decisions on behalf of the members based on its view of the majority will or some survey of the members. In short, in a representative democracy, like that attempted by the HOA legal structure, not all of the members are in agreement with or consent to the decisions of the BOD. It raises the issue of ‘the tyranny of the majority’ when the minority is not given due respect nor the ability to freely and equally speak out on HOA governmental issues.

Meese contends that the Founding Fathers[2] understood this weak point in a democratic government and the need to “insure domestic tranquility.”[3]

[A] government [must rest] not only on the consent of the governed, but also on a structure of government wherein the views of the people and their civic associations can be expressed and translated into public law and public policy. . . . 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.

The structure of HOA governance is not based on and contradicts fundamental American principles and traditional values.  Furthermore, the CC&R are not even based on contract law 101 with its requirements for freely entered into, full disclosure, and explicit agreement to be bound,  but on the real estate doctrine of equitable servitudes.

To learn more about your loss of these rights and freedoms see The HOA-Land Nation Within America.

 

References

[1] Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.

[2] See in general, The Federalist Papers, #51, James Madison who explained, “Justice is the end [goal] of government. It is the end of civil society.”

[3] Preamble to the Constitution.

HOA-Land Nation publication to aid constitutionality

The important question of HOA constitutionality has generally been avoided and given token lip serve by all interested parties: homeowners, homeowner rights advocates, state legislators, real estate departments, attorney generals, nonprofit private entities proclaiming a defense of the Constitution, and the media at large.

Even the renowned Wayne Hyatt’s[1] statement in 1976 went ignored.

“One clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government.   All of these functions are financed through assessments or taxes levied upon the members of the community, with powers vested in the board of directors, council of co-owners, board of managers, or other similar body clearly analogous to the governing body of a municipality.”[2]

Clearly challenging the constitutionality of the HOA model of local government and legal scheme is well beyond past due. To correct this horrific and inexcusable oversight I have published, The HOA-Land Nation Within America,[3] a white paper, an exposé of the HOA legal scheme violations of the Constitution. The eBook and paperback editions can be found on Amazon.

This task of constitutional HOA reforms may appear overwhelming and almost impossible to achieve, but constitutional HOA reforms can happen. It will take tremendous effort and perseverance, and a “never give up” mentality. David Cole passionately makes this point[4]

“If Americans now and in the coming years insist that . . . our most fundamental values, including equality, human dignity, fair process, privacy, and the rule of law, and if we organize and advocate in defense of those principles,” we will succeed in bringing about the necessary fundamental and constitutional reforms to the HOA legal scheme in existence since the HOA “bible” was released in 1964. In order to accomplish this important task, “it will take a persistent civil society, a vigilant media, brave insiders, and judges and other government officials who take seriously their responsibility to uphold the Constitution. But first and foremost, it will take an engaged citizenry.”

The defense of liberty depends . . . on citizens engaging collectively to fight for the values they believe in. . . . The preservation of liberty through a written constitution . . . has survived . . . because ‘we the people’ have consistently taken up the charge to define, defend, and develop liberty in our own image, so that it reflects our deepest commitment , not just those of a privileged elite who do not represent us.”

It falls upon the homeowners in HOAs, as has always, to advance constitutional arguments that are valid and credible.    And that takes knowledge and understanding of the issues.  The HOA-Land Nation, and other of my publications and Commentaries, as well as those of others, provide the “ammunition” that will pass the valid and credible challenges to be expected from CAI and other lawyers, provided the arguments do not get bogged down in irrelevant arguments from the opposition.

CAI cannot handle a broad Bill of Rights challenge. Period!  I have never been challenged  by CAI because they well know that they are defending the defenseless.

Read the book, paperback or eBook, and spread the word.  Use it in those many HOA violations where state statutes support the HOA.  Work to hold seminars and conferences to openly discuss the issues raised in The HOA-Land Nation.  Expose their defense of HOAs, now!

 Notes

[1] Wayne Hyatt was a prominent figure in the promotion of HOA-Land as well as an important person in creating CAI in 1973, serving as its second president.

[2] I have extensively quoted Wayne Hyatt’s 1976 statement on HOAs as mini-governments, as cited in the 1983 California case, Cohen v. Kite Hill.

[3] I have concluded that there exists an HOA-Land Nation within America that is comprised of fragmented and local HOA governments across the country and have designated them collectively as “HOA-Land.”  The commonality of their declarations of CC&Rs, flowing from the 1964 Homes Association Handbook (ULI publication), their shared beliefs, values, traditions, and institutions qualify HOA-Land as a nation.

[4] David Cole, National Legal Director of the ACLU, Engines of Liberty, Basic Books (2016).