Media fails 1st Amendment free HOA speech

The media has failed its First Amendment prerogative of protected free speech. The Founding Fathers well understood the need for an informed citizenry for a healthy democracy and made free speech the 1st Amendment. However, America has become divided and the courts, including the Supreme Court, have adopted a policy that biased, personal agenda speech is OK because America has many channels for opposing speech. For example, FOX  News and MSNBC.

But the media has silenced the opposing views of HOA members themselves.

The Supreme Court (New York Times Co. v. Sullivan (1964),  with respect to newspaper articles, held:

“In the case of the newspaper that published inaccurate information, that form of speech would not be protected by the First Amendment if the newspaper published falsehoods knowingly and purposefully. . . . The Supreme Court ruled that the newspaper was constitutionally protected in this instance, despite the false allegations, since the newspaper did not knowingly and recklessly publish the inaccuracies.”

In response to a call for a media contact committee by HRLNG (FB) I wrote today:

“This has been a long-neglected point of power for advocates, realizing that the media is part of what I’ve designated as, “the unspoken alliance of NO HOA negative stories.” Ask yourself, recalling all the TV anchors telling you that they ask hard questions, they get to the facts, etc. yet nothing bad about HOAs that amount to substantial issues. Yes, they talk about this incident and that incident, but substantive issues go ignored. This must be the substance of your approach! Example: NAR and all state chapters claim they are here for you the home buyer and you can trust your Realtor (This term is the NAR members only). BUT HOA??? What’s that??

“The Homes Association Handbook, the 1964 “bible” for HOA-Land was supported by that version of NAR. AARP had some articles but no lobbying for its age 50+, members. Why not? This committee must not be afraid to ask these hard questions. What do you have to lose? They did very little for HOA reforms. CHALLENGE THEM and ask hard questions in pursuit of the truth!”

The Art of War and HOA Reforms War #1

While HOA reforms require new legislation in every state to restore lost rights and freedoms resulting from the adhesion, authoritarian CC&Rs “contract,” advocates need to understand that reform activity has moved from a social and political movement to a war against an entrenched enemy.  I have used terms like doing battle,  the enemy, attack, etc. not lightheartedly.

The common quote from The Art of War (the James Clavell version is easy reading), “If you know yourself and your enemy, you need not fear the result of a hundred battles,” is just one of many that are easily applied to any organized civil, contentious movement.  Just like we are facing in our attempts to reform the HOA concept and being faced with opposing forces led by CAI. 

We must all toughen up for success!

I have selected several statements from Chapter VI that can easily be seen as applicable to our efforts.  As a longtime student of history, especially military history, I offer my interpretations.  Alternate interpretations are possible. The numbering reflects the sentence number as used by Lao Tzu.

Chapter VI–

  1. Whoever is first in the field and awaits the coming of the enemy, will be fresh for the fight; whoever is second in the field and has to hasten to battle will arrive exhausted.

2.Therefore, the clever combatant imposes his will on the enemy, but does not allow the enemy’s will to be imposed on him.

5.   Appear at points which the enemy must hasten to defend; march swiftly to places where you are not expected.

[Too often advocates have reacted to the CAI supported bills or positions rather putting their positions and bills on the “table” out first. They then need to catchup and defend against the allegations and not arguing their positions.]

[The following quotes advise the General (leader) to know the enemy — your opponent. Power negotiations is a two-party “game” and knowing the opposing teams’ strengths is important for success.]

10.  You may advance and be absolutely irresistible, if you make for the enemy’s weak points; you may retire and be safe from pursuit if your movements are more rapid than those of the enemy.

        [Taking some action regarding bills or any statements that need to be challenged.]

13.  By discovering the enemy’s dispositions and remaining invisible ourselves, we can keep our forces concentrated, while the enemy’s must be divided.

14.  We can form a single united body, while the enemy must split up into fractions. 

        [A failure of advocates to unite has hurt the reform movement. Each failure to unite allows CAI to boast, “See, they are nothing to be worried about.”  Legislators, like everybody else including lawyers, want to back winners, not losers.]

19.  Knowing the place and the time of the coming battle, we may concentrate from the greatest distances in order to fight.

22. Though the enemy be stronger in numbers, we may prevent him from fighting. Scheme so as to discover his plans and the likelihood of their success.

23.  Force him to reveal himself, so as to find out his vulnerable spots.

     [In summarizing these last 5 statements, advocates need spies, just like our military uses spies and sends out recon units in order to find out what’s happening. Lao Tzu stresses this aspect in his last chapter. With CAI closing ranks and restricting access to its websites, member spies must be recruited.  I did well using spies in my early activist days.]

A united, national front to HOA reform legislation

A private Facebook group has undertaken a gallant and tedious effort to inform advocates across the country proposing reform legislation. Its Admin, Patrick, provides a list of numerous bills that are applicable to all states with modifications. Thus, I proposed a broad sweeping “intent section” by the homeowner rights advocates to be included in all proposed legislation under the Homeowner Reform Leaders National Group (HRLING). It should be added as the last section to all bills, e.g., “Section2. Intention of . . . HRLNG.”

As for specific legislation I proposed, I make reference to the “Homeowner Association Consent to be Governed Agreement An Act (to be known as the ‘Truth in HOAs’ Act,” paragraphs 1 and 4, March 2011).

  1. “No provision of any contract or any declaration of covenants, conditions, and restrictions affecting lawful property uses of residences in a subdivision or condominium is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties against whom it is being enforced; or 2) all parties against whom the provision is being enforced knowingly and voluntarily agreed to be bound by the provision without reading or understanding it.
  2. “Therefore, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, ‘The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.’”

HomeAdvisor study critical of CAI surveys

For years (since 2005) the public in general, the media, and state legislators have been targets of CAI’s “satisfaction” surveys sponsored by its affiliate, The Foundation for Community Associations Research. This year a study was conducted by HomeAdvisor this past September in an effort to uncover  the attitudes of US HOA members across the country regarding life in an HOA.

The HomeAdvisor study confirms the 2015 online polls by two homeowner rights advocates, Sara Benson (Chicago) and Jill Schweitzer (Phoenix), on homeowner satisfaction with HOAs.  In stark contrast, not surprisingly, the Combined Advocate Surveys, as I refer to them, revealed opinions and views refuting the results of the CAI “happiness” surveys. It appears that the CAI studies were happiness studies of happy HOA members.

Read my full analysis, “HomeAdvisor study confirms advocate study critical of CAI surveys,” and its statistical findings.



The roles of the Supreme Court vs the Legislature

At today’s Senate confirmation hearings of Judge Jackson, an intriguing dialogue took place between Jackson and Senator Lee (Utah).  The topic raised by Lee focused on the role that the Supreme Court is to say what the law is, and the role of Congress (or state legislature) is to say what the law should be creating public policy. The Court deals with the policies set by Congress.

The role of homeowner rights advocates is to say  to the legislatures what the law should be with respect to HOA-Land.  It is not to say that this happened to me and it’s wrong, or my HOA does so and so, which does not rise to the level of setting policy for all HOAs/condos  — no special laws for special entities.

And that’s another area where reform legislation often fails — too local.  Reforms must be broad as to have general concern for the state; as the courts have held from time to time, “This case Involves legal issues of statewide importance.”   And it must be explicitly stated or  implied.

Public policy today is harmful to the private property rights of HOA owners, and to a denial of due process protections and violations of the equal protection of the laws, treating HOAs as if they were independent principalities.  These policies and attitudes have created unjust, bad laws enforced by the courts, and used as precedent for more bad laws.

The cycle ends by advocates addressing the root cause of pro-HOA laws that treat HOA members as second-class citizens, which they are not!