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).

Would the HOA legal scheme collapse under a democratic form of government?

The HOA legal scheme as a nonprofit form of government chartered under corporation laws cannot be held in the same light as a democratic public government chartered under municipal corporation laws.

We use the term HOA quite loosely as I have in many of my posts.  However, the HOA is 1) the legal governing body of a 2) planned unit development or condominium, which is a real estate ‘package’ of amenities, landscaping, etc.  It is a de facto – it exists and functions – government, but unrecognized by the state as is Cuba.

Can we get rid of the ‘package’?  I don’t think so for reasons that I’ve stated  — too big.  Can we get rid of the oppressive authoritarian governing body known as the ‘association,’ home or property owners associations, etc.? Definitely yes!  Or can we?

Questions for study and thought!  

 1.    Will the ‘package’ collapse if we remove the oppressive authoritarian governing body and substitute a more democratic regime?

2.    Why didn’t the promoters of the current HOA scheme (in their seminal publication, The Homes Association Handbook) present the HOA as a municipal corporation rather than a nonprofit corporation?

In regard to question 2, is it because the promoters knew that the HOA would be subject to the Constitution and restricted by state laws?

A hint is given, even in the Handbook, with the discussion of ‘free riders’ and the need for mandatory membership and compulsory dues.  (A ‘free rider’ is one who benefits from the efforts and money of others as in the case of unions, as would be the case with voluntary HOA memberships.)  The other hint is how does one maintain property values, that huge appeal to the masses, without strict enforcement of many specific rules and regulations? If people were free to do as they please, what is the value of the HOA?

Apparently, local ordinances did not satisfy the promoters of the HOA scheme because they were too broad and didn’t represent the membership, but somehow top-down, take-it–or-leave-it CC&Rs do.  And to be sure, make it an adhesion contract that favors the HOA and prevents the practical and effective voice of the people. Apparently our system of government failed to satisfy the promoters, and their need for a better form of government was sought – one better suited to the goals of the promoters.  A fascist form of government (or if that offends you, a corporate oligarchy where the objective of the state is to satisfy not the people, but the government) did the trick quite well.

The answers will illuminate the fundamental problem with HOA reform and the resistance to substantive reforms.

 

HOA laws that fail to protect the people from harm

I have written many times about the loss in the protections of individual rights, freedoms, privileges and immunities that continues in our country.  I wrote about the presumption that all laws passed by the legislature are constitutional, because, apparently, the sovereign can do no wrong.  After all, the legislature is the voice of the people, isn’t it?

BUT, this false analogy to the king can do no wrong ignores the fact that the king was not bound by any constitution or charter, and was free to do as he pleased.  But, we have, or are supposed to have, a constitution with restrictions on government.  We also have the doctrine of judicial review of legislation, subjecting the laws to pass judicial scrutiny.

Of the three levels now part of the doctrine of judicial scrutiny, the peoples’ rights fall into one of three categories. The least protective is a legitimate, rational government interest (basically anything the government says is important to the people goes); the strictest is a compelling and necessary interest, reserved for explicit fundamental rights violations.

I have always been bothered about many HOA laws purported to be in the best interest of the people, yet deprive or deny a category of people, those living in HOAs, of their constitutional rights (free speech in many forms, due process protections) and the equal protection of the laws. In Arizona, for example, the horrendous SB 1482 omnibus (read ‘ominous’) bill did just that: granted special rights to HOA managers and left homeowners with unequal legal representation; rejected a private agreement to prevent crimes to allow real estate agents to be able to rent homes in HOAs, a long time frowned upon right.

In the recent Arizona appellate opinion in Vong v. Aune (non-HOA case that explains judicial scrutiny), the court held that, “Courts have found a legitimate purpose lacking where a regulation fails to protect the public from harm.” ¶ 18.  Did I miss something?  Did the Rules Committee that has the duty to check for constitutionality miss something?

Of course the game is still in favor of the government where the burden is put on the homeowner challenger.  He must show that the alleged good for the community is overwhelmingly overridden by the damage to the HOA homeowner public class, and is contrary to public policy. It raises the question of one class of people losing constitutional protections so that others may . . . . may what?

Sadly, public policy as shaped by court and legislative decisions seems to be on the side of the HOA.

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.

 

 

Whether apathy or anger, it’s always the HOA owner’s fault

The policy of the pro-HOA forces, including your state legislature, is to hold the homeowner at fault for problems in his HOA.  Never the HOA government itself.  Owners are apathetic and should be more involved in solving HOA issues, they argue,  but when owners join they find that their minority position has no power against the clique.  And if they react with anger against repeated outright violations by the board, they are again the problem people who just can’t get along.  Never the HOA government itself.

Many of us, who are involved in attempting to make changes in the public arena have encountered failures by our elected officials to provide fair and just HOA laws. And after a number of years begin to walk away with a harsh understanding that you can’t fight city hall.  There is nothing any different with the similar behavior of HOA owners facing the same public government failures with their HOA government.  They just can’t fight HOA city hall, too.

On the other hand, a number of homeowners react in the other direction by getting angry with the repeated frustrations with the failures of their HOA. With the lack of a viable means to correct these flagrant violations and unjust powers cast in concrete as CC&Rs and pro-HOA laws, what can you expect of good people?  So they get angry, shout, and become bitter at their treatment with no avenue for relief.  They are charged with abusive behavior, harassment, and bullying by the HOA. But, it’s never the fault of the HOA government itself.  Never.

The position of the pro-HOA forces has been, in my view: if the owners would only follow the rules all would be fine. Their position is that the HOA government works in the best interests of the community for everyone.  And that the best interests of the community rests in the unquestioned obedience to the HOA government.  Or suffer the consequences.

Like any other totalitarian government or banana republic, the HOA has the power to destroy your life by taking your home, by imposing harsh monetary penalties (fines), by curtailing your free use of the common property, by denying your right to vote as if you were a criminal of the HOA, and by ostracizing you and your family before the community. To drive you out of your home.  But, it’s never the fault of the HOA government itself.  No, never.

Of course, as with all dictatorships and banana republics where there are loyalists — those who support and defend their government — so, too, do HOA governments have their loyal supporters.  They have bought into the system and refuse to accept anything to the contrary. But what kind of community are they defending? Surely not a democratic system that surpasses that of the US Constitution.  It’s only common sense.

Decl. of Indep. from HOA government

In 2000, as a naïve and newbie to the politics at state legislatures, Arizona in particular, I addressed the HOA Study Committee on September 7th and submitted a statement titled, HOMEOWNER’S DECLARATION OF INDEPENDENCE  from homeowner association governments.”  In it I quoted parts of the Decl. of Indep. and informed the committee that I had hoped that these hearings would bring forth a list of grievances for which homeowners were seeking redress. 

And as in those times of 1776, a small, principled and dedicated group of citizens are seeking a redress of their grievances. They first looked to the existing government, the HOA Board, and failing to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association controlling document, the CC&Rs.

Mr. Chairman, ladies and gentlemen of the Committee, at this time I had hoped that the citizens a Arizona would be able to present and enumerate their long list of abuses, and solutions to these abuses, similar to as is found enumerated in the Declaration of Independence, without the interference and obstruction by elements of these ‘oppressive governments.’  I see that this will not be the case.

The people of Arizona only wish to be able to present their case before this Committee in a fair and just manner. However, sadly I feel that, because of the composition of the committee, the homeowners are actually being placed on trial; that they are being asked to justify their grievances before their oppressors.

This statement was referenced in Robert Nelson’s 2005 highbrow book, Private Neighborhoods (p. 342). He covered a lot of material including HOA secession from local government and on constitutions (Part V, “Creating HOA Constitutions”).

The purpose of a constitution is to set the ground rules for governance. . . . Yes the rise of the private neighborhood has resulted in far and away the largest number of new constitutions in recent years. [Is he referring to HOA principalities?] . . . . [T]he real estate lawyers and their developer clients . . . with no previous experience available to understand what the pros and cons would be to live in a community controlled by covenants, [governing documents] were born.

In HOACommon Sense: rejecting private government I outlined 5 broad categories to be addressed by reform legislation.

Today, I think it would be helpful to adopt my statement and add those grievances that you feel need to be solved, and submit the entire package to your legislature and the media.  It would be your declaration from HOA governments, your petition for redress. Of course, the more signatures you have the better.