HOA boards are not required to uphold member fundamental rights

Folks, time for a reality check. You know I’ve repeatedly argued for constitutional protections and getting only slip-service.  As Prof. Evan McKenzie wrote in 1994 (Privatopia: Homeowner Associations and the Rise of Residential Private Government,

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

Many of your complaints, here and on other websites, reflect this reality of an authoritarian government that coerces consent.  HOA boards are not required to uphold member fundamental rights; neither are they obligated to be fair, just, understanding, or compassionate. HOAs are NOT public governments with these implied obligations.  It does not have to be that way! 

See HOA Common Sense and The HOA-Land Nation Within America.

Common Sense

An HOA is the governing body of a condominium or planned unit development (PUD) functioning for all intents and purposes as a de facto local political community government, but not recognized as such by state governments.

“Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy.  Is this HOA government better than public government?  Common sense tells us no!”

HOA-Land Nation

“Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties or punishments for violations of state laws or the governing documents?  Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.

 “The much touted HOAs are democratic because members can vote is utterly without merit?  Fair elections protections, as compared with those in the public arena, do not exist under a corporation law.  Members do not have equal access to HOA newsletters, website, member lists, and use of common amenity meetings rooms, among other denials.” 

DEMAND CONSTITUTIONAL AND FUNDAMENTAL PROTECTIONS!  Demand your legislators support such a bill as proposed HOA constitutionality bill.

HOAs are another form of local government

Listening to the events concerning the shooting in Brooklyn Center, MN I was surprised to learn that its form of government is based on the council-manager system.  We are more familiar with the mayor – council or mayor – manager forms of local government where the mayor is elected and plays a major role in governing the city.[1]

However, in the council-manager form the mayor is a figure head with the powers to rule the city are divided between the elected city council and a city manager  appointed by the council.  Sound familiar?  Many HOA Bylaws follow the council-manager form of local government, except that the Bylaws do provide for corporation laws governing the duties of officers.  This is true of the many large HOAs and the retirement/resort subdivisions.

The division of labor and authority follows the public form in that the council holds ultimate responsibility for the conduct of the government but is restricted to policy issues, while the appointed manager actually runs the HOA. A good example can be found in an Arizona active-adult HOA of some 17,000 people.

“The affairs of the Association shall be managed by a Board of Directors which shall serve as the corporate policy-making body of the Association. . . .  The Board is not responsible for nor authorized to perform day-to-day operations of the Association. The day-to-day operations of the Association shall be carried out by CAM or agents retained by the Association under the supervision of the Board.

“Subject to the Board’s responsibilities concerning operational policies, it shall be the policy of the Association . . . that the Board refrain from unreasonably interfering with the performance of delegated functions by CAM.”

The major difference between local public government Brooklyn Center, MN and the Arizona HOA lies in the private contractual nature of the HOA that absolves it from application of the US Constitution as well as the state constitution. HOA members are, as compared to non-HOA members, therefore second-class citizens lacking constitutional protections within their own state.[2]

The $64,000 question is: So why is there so much opposition to requiring the HOA to be subject to the Constitution like all other forms of local government?  BEFORE you respond, think very carefully with respect to the implication and consequences of your response.

References


[1] See in general, Roger L. Kemp, “Forms of Governance,” Managing America’s Cities: A Handbook for Local Government Productivity, McFarland & Co., (2007). They are: Strong Mayor, Council-Manager, Town Meeting (direct or representative democracy), and Commission. See also,  Home rule doctrine vs. HOA governments; CC&Rs are a devise for de facto HOA governments to escape constitutional government.

[2] See George K. Staropoli, HOA-Land Nation Within America (2019).

Countrywide political culture cause of HOA reform failures

On this morning’s talk show, political discussion addressed the questions of the  Republican Party policy of applying strong power in order to stay in office, and what is the percent of Trump supporters who are hard core followers – cultists.  Will these dogmatic people remain loyal to Trump and to the Republican Party after the events at the Impeachment Trial?

Materials describing the growing trend toward authoritarianism[1] in America is well documented and reliable information can be found on the Internet.[2]

There are some people [authoritarian followers] for whom the system of checks and balances are bothersome and annoying, and dislike the noise and chaos of democracy. . . . [Authoritarians] understand their role, which is to defend the leaders, however dishonest their statement, however great their corruption, and however disastrous their impact on ordinary people and institutions.”[[3]

Talmon hits the nail on the head when he writes that “Citizens of a totalitarian democratic state, even when aware of their true powerlessness, may support their government.”[4] 

 In “Part 1, The Cultural Dynamics of HOA-Land” of my HOA-Land Nation,[5] I present my analysis of  the forces at work dominating the politics within the HOA private government. 

Basically, the HOA legal structure and scheme is authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. The authoritarian nature of HOA-Land is masked by a thorough indoctrination that presents a false picture of the real estate subdivision as democratic, inappropriately named a community, simply because the members are allowed to vote, as meaningless as it is.

Getting back to HOA-Land, it becomes disturbing that the application of authoritarianism and totalitarian democracy philosophy seems to fit quite well. Too well at that! [6]

HOA Consultant

* * * *

The same dynamics at work in HOA-Land[7] are well evident in Impeachment Trial II of Donald J. Trump[8] and reveal the new political forces at work in all of America. The trial brief stated, among other things,

The only honorable path at that point was for President Trump to accept the results and concede his electoral defeat. Instead, he summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue. (p. 75).

By the day of the rally, President Trump had spent months using his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America. As a result— and as had been widely reported—the crowd was armed, angry, and dangerous.  (p.2).

President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power. A President who violently attacks the democratic process has no right to participate in it. Only after President Trump is held to account for his actions can the Nation move forward with unity of purpose and commitment to the Constitution. (p. 5).

* * * *

Today’s politicos are talking about a third party with Trump as its leader, mainly from Republicans.  A Gallup survey[9] shows that there is no majority party in the US, counting Independents as a party: Republicans and Democrats are about 25% each and Independents now 50%.  (In Nov.  2016 it was 27% Republicans, 30% Democrats and, 40% Independents). 

It will be an interesting new US political scenery; what will happen who knows.

How many Republicans, government officials,  and the general public supporters of Trump remain loyal after the events of the Day of Infamy, January 6, 2021?  With Trump out of office, but able to run again, how much power will this authoritarian leader retain?  It seems the Congress, the WH, and Americans in general need to examine their moral positions and ask themselves, Did I do right? Did I do the honorable thing for America?

Notes


[1] Authoritarianism: favoring complete obedience or subjection to authority as opposed to individual freedom..

[2] See in general: Anne Applebaum, Twilight of Democracy: The Seductive Lure of Authoritarianism, Doubleday (2020); Amanda Taub, “The rise of American authoritarianism,” Vox (March 1, 2016); Bob Altemeyer, The Authoritarians, 2007.

[3] Id., Applebaum.

[4] J. L. Talmon, The Origins of Totalitarian Democracy, Penguin Books (1986, first published 1952).

[5] George K. Staropoli,  The HOA-Land Nation Within America, StarMan Press, 2019.

[6] George K. Staropoli,  HOA political dynamics: totalitarian democracy (2019).

[7] HOA-Land is a 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.  Latest estimate at this writing is that some 23% of Americans live in HOA-Land.

[8] Articles of Impeachment, H. RES. 24, (2021). See House_trial_brief;  Trump answer; House answer response.

[9] Party Affiliation, Gallup (Feb. 15, 2021.

Failing to achieve substantive HOA reforms

Is there a way out?  Definitely yes!

It is not by going to state legislatures to be repeatedly rejected, or given token reforms but with no substantive redress of grievances. It is not by repeatedly expecting the courts to do homeowner justice in spite of the strong stare decisis precedent of pro-HOA laws and public policy favoring HOA-Land. It is not by expecting law colleges to provide a balanced educational program in law for students that includes HOA constitutionality.

And it is not by hoping that the media — granted special 1st Amendment protections to inform and educate the citizens on political matters — will measure up and so present the whole HOA truth that has been so long hidden from the public.

As a result of my 21 years of activism and advocacy for HOA constitutionality, and my education and detailed research, I have come to understand the greater social and political forces at work. These forces that have led to the current culture and environment surrounding the HOA legal scheme and structure. They are detailed in my “The HOA-Land Culture.”

Read more at Cult behavior within HOA-Land and Plan to Restructure HOA model.

Biden must order law colleges to uphold HOA content-neutral free speech

We must make the injustice visible” Mahatma Gandhi

Can Americans look forward to any improvement in the application of the 14th Amendment equal protection of the laws and due process protection of their constitutional rights as a citizen?   I do not think so when college law students, especially those wishing to be competent and knowledgeable constitutional lawyers, are not educated in the unconstitutional aspects of the presumptively invalid declaration of covenants, conditions, and restrictions (CC&Rs). The CC&Rs are in reality the HOA subdivision/condo “constitution.”

Justice Ginsburg stated in her equal pay for women dissent that,

Title VII [Employment equal pay for women discrimination act] was meant to govern real world employment practices and that world is what the court [US Supreme Court] ignores today.”

This is very same attitude by the courts with respect to what is really happening in the real world of HOA-Land; the courts do not have any understanding of homeowner constitutional issues.  Otherwise how could it deny constitutional protections?  What are the factors that blinds them to the ab initio unconstitutional CC&Rs?

I keep waiting for an illustrious constitutional lawyer or political scientist to rise to the level of Ginsburg and uphold the original intents and purposes of the US Constitution as stated in its Preamble.

Could it be that the law colleges are also intentionally blind to the constitutional issues plaguing HOAs since 1964 when the “bible,” The Homes Association Handbook, was published?  For example, ASU’s Sandra Day O’Connor School of Law does not provide library references to these issues and insists on only listing the materials based on the CAI School of HOA Governance; by the national lobbying arm supporting the HOA legal scheme of today.

Have the law schools been indoctrinated into accepting CAI’s self-interest perspective and treat HOA-Land as an institution, accepting that is the way it has always been?  The judicial system, the law colleges, the legislatures, the Uniform Law Commission (UCIOA), the media, and the public in general all need to be deprogrammed!

I do not believe other prestigious law colleges include HOA unconstitutionality as an item in their degree programs. Unconscionable!

For more information on deprograming and reorienting HOA-Land indoctrination, see my publications and web page Commentaries:

HOA bill of rights history updated
ASU Law ignores content-neutral free speech for HOAs
Uniform Law Commission rejects subjecting HOAs to Constitution
The HOA-Land Nation Within America (publication, 2019)
A Plan Toward Restoring the HOA Model of Governance (publication, 2020)
See restoring HOA Constitution Plan FAQ