The Two Americas: Constitutional America and HOA-Land

On this Memorial Day, May 30, 2016, America is fighting battles in a number of countries where our sons and daughter and our brothers and sisters have paid the ultimate price defending the United States of America, and the democratic values and beliefs of justice and equality for which it stands.

Yet, we have those in America firmly believing that the Constitution protects free speech, but not when private contracts are involved. And they support private agreements called Declaration of Covenants, Conditions and Restrictions (CC&Rs) that cross over the line between purely property restrictions to establishing unregulated and authoritarian private governments. Florida attorney Ryan Poliakoff (brother of the late CAI activist attorney Gary Poliakoff) is one of them. These HOAs (an all-inclusive term) operate outside our constitutional system of government.

In his May 28th column on Florida Today, he asks and answers the title question, “Did you sign away your free speech with HOA?[1]  with a firm YES.   Why and for what system of government are our troops fighting and dying for?  For the America of our Founding Fathers or for the misguided special interests who have a financial interest in HOA-Land, and who act and function as an oppressive oligarchy. (It is estimated that 20% – 23% of Americans live under HOA private governments). In our case, it means rule by the few special interests who lobby nationwide for pro-HOA legislation to protect the status quo.

I’m shocked at Mr. Poliakoff’s biased and simplified explanation and justification for HOA private governments; after all, he is a lawyer and dares speak of The Bill of Rights. He writes,

Private entities have no obligation to respect your right to say whatever you want, no matter how offensive it may be. . . . So if the rights and obligations of a mandatory membership community are contractual, and not municipal, shouldn’t they be allowed to restrict speech?

The most blatant misrepresentation of the facts occurs when he argues (emphasis added),

Personally, I agree with the majority position. I see no reason that persons who voluntarily bind themselves by, knowingly, buying property subject to restrictions should not be bound by those restrictions (unless the state passes laws that expressly limit the association’s power, such as the condominium laws that protect owners’ right to assemble, or the federal laws that guarantee every person the right to fly an American flag.)

Otherwise, I view deed-restricted communities as guided and governed by contracts, and I believe they should be treated, generally, the same as any private contract between individuals.

I vehemently object to these misleading statements by an attorney!  Apparently he has failed to read, or refuses to rebut, arguments that I raise with respect to 1) alleged agreement to a contract,[2] 2) HOAs as de facto governments hiding behind the privacy of the questionable CC&Rs contract,[3] and 3) the application of US Supreme Court criteria for a bona fide surrender/waiver of constitutional rights, including due process and the equal protection of the laws, which the HOA legal scheme fails miserably.

Furthermore, he should well know that the alleged contract is not between individuals or other HOA members, but between the HOA and the individual owner. Yet, he admits, by implication, that all HOA reform legislation is an attempt to restore lost rights, rights that belong to all Americans.

Mr. Poliakoff also informs his readers that he co-authored the 2009 book, New Neighborhoods[4] that contains the very same attitude and view towards independent HOA principalities as professed in this article.  In my Amazon book review I wrote (emphasis added),

Ellen Hirsch de Haan, former CAI president, acknowledges that the biggest problem for the successful operations of these associations “is the lack of education among the consumers who are buying homes and units . . . . And the authors inform their readers that, “These neighborhoods could not operate without . . . the owners, who give up certain traditional homeowner rights for the good of the community.” “This is good”.

“The Poliakoff’s continue, informing their readers that “out of anarchy came utopia“, and quote an appellate court dicta that “each owner must give up a certain degree of freedom of choice which he might otherwise enjoy living in a separate, privately owned property.” The authors define the purpose of this book as, explaining “the workings of these communities — these New Neighborhoods — . . . and to let purchasers know just what they are getting into.”

I believe that Mr. Polikoff has failed miserably to fully educate the legislators, the media and the home buyers in both his book and in his recent article, both of which present the special interest “party line” and not the facts, the whole facts, and nothing but the facts.

This is not new or unique to Mr. Poliakoff.  CAI has recently released a series of white papers, which I collectively refer to as the CAI Manifesto.[5]    Kelly Richardson, national CAI Trustee and Realtor wrote about socialistic housing and submitting to the will of the community because, allegedly, that buyers had openly agreed to the surrender of their rights.

That’s the root of so many of the HOA horror stories we’ve all heard, as owners normally do not realize that their submission to the will of their new community is accomplished by the automatic application of covenants running with the residence. . . . The most caustic critics of HOAs in general are actually opposed to the concept of joint ownership. This is a completely unrealistic position . . .[6]

 

 

The positions taken in support of HOA-Land, as evidenced above, constitute a political movement — as any other recognized movement — that consists of separate and disparate collection of private governments not subject to the constitution because of a “verboten,” hands-off attitude, and have created 2 Americas.   The divide is just a  dangerous as a country divided over political philosophy as witnessed in our current political campaign.  It must not be allowed to continue regardless of what party or person will sit in the White House.

References

[1] Did you sign away your free speech with HOA, FloridaToday (USA Today), Ryan Poliakoff , May 28, 2016.

[2] Consent to be governed, No. 4 of HOA Common Sense: rejecting private government.

[3] HOA Governments in fact, No. 9, Id. See also, CC&Rs are a devise for de facto HOA governments to escape constitutional government.

[4] New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.

[5]  CAI manifesto: CAI’s plan for HOA-Land in America;  See also, Deborah Goonan’s  critique in “HOA laws and Free Speech, Right to Know”.

[6] Realtor magazine publishes HOA socialism by CAI Trustee, quoting A Note of Caution About HOAs, RealtorMag, Official Magazine of the National Association of Realtors, February 2015.

George Orwell’s 1984 is alive and well in HOA-Land

thought-policeIn 1949 George Orwell published 1984 where the fictional Oceania (formerly known as England) is a totalitarian state that has instituted a new society designed for the survival of the country.  Oceania had introduced methods and techniques designed to protect the government at all costs:  Big Brother is Watching You; Thought Police (don’t speak out or question, or else); Doublethink, creating the ability of the people to hold and accept two contradictory thoughts at the same time; Newspeak, the official language, replacing English, that redefines words and concepts; Ministry of Truth, the agency of propaganda and historic revisionism; and the Ministry of Love, the agency of regulations and enforcement.

Many can see the parallels and extensions of Orwell’s 1984 in the real 1984, and current world, of homeowner associations (HOAs) — authoritarian private governments.  Let’s take a look.

The principles of 1984 can be identified within the HOA regime: Ministries of Love, the boards and HOA managers, coerce compliance with outrageous fines and claims of violations.  The Thought Police, through1984_big brother the HOA vender organizations and lobbyists, use Doublethink and Newspeak to redefine everyday usage and meanings of words. Newspeak, or simply propaganda — lies and half-truths — to advance one’s interests, is extensively employed to defend the HOA regime. And, of course, there is the ever present all seeing eyes of the HOA — Big Brother is Watching You.

Of course, there are benefits to the state, the community and the residents, including the alleviation of irrational fears of the loss of property values.  But at what price?  At what cost?  At the cost of leaving the American Zone (as expressed by Shu Bartholomew in On the commons.com) and the loss of member rights, freedoms, privileges and immunities protected by the US Constitution and Bill of Rights.

The influence and acceptance of Doublethink has people believing that HOAs are democratic and not authoritarian regimes, because residents can vote – like in Cuba and China. That de facto HOA governments are businesses and not quasi-governments, because it is so declared.  That it’s the members’ fault for not making desired reforms to the HOA legal structure, which contains a very high bar to effective member participation in HOA governance. That the members’ are expressing their individual rights and freedoms by surrendering them and accepting that the authoritarian board speaks for them. However, the board is legally responsible to speak for the HOA corporation in accordance with the CC&Rs that do not recognize the rights of individuals as set forth in the Preamble to the US Constitution.

 Welcome to the New America of HOA-Land

I want you

I want YOU to

Join the HOA-Land Nation, today!

Read the complete paper at 1984

CAI attorney stalwart defends HOA Land private constitutions and so-called bill of rights

The CAI stalwarts once again responding to my challenge to defend the constitutionality and legal status of the HOA legal scheme, including the highly questionable assertion of a “consent to agree” under the constructive notice doctrine.  This time, dedicated CAI stalwart Beth Grimm enters the arena with her August 2012 e-newsletter, What’s new in HOA Land . . .  The topic is, “Homeowners Bill of Rights.”

From the very start she informs her readers, in a round-about way, that there are no federal or state constitutions applicable to HOA private agreements.  I’ve been saying that for years!  And she points out that, “Without A Constitution What Is a Bill of Rights Worth?”  Grimm continues in what must be taken as a joke, in full agreement with the comment by Bill Davis, with a quote from Thomas Jefferson about the need for a bill of rights after admitting there is no HOA constitution.  

It appears that the reader is entering the realm of the attorney “word-game,”  where long established concepts and meanings are distorted to suit the attorney’s private agenda.  It’s an indoctrination and propaganda tactic. Welcome to Newspeak.

In strict legal terms, the assertion by Grimm that the governing documents are the HOA’s constitution is not correct.   But the courts have upheld the CC&RS as if they were just like a political constitution and interpreted them as a de facto constitution.  And as I have tried to explain, state laws like the California Davis-Stirling Act, the UCIOA acts, and other state HOA “Acts” serve as a parallel code of public laws applicable at the local government level to the class of nonprofit private governments called HOAs. 

The courts have also applied public government attributes, conditions and rights to these private contracts that are not contained in the explicit CC&RS covenants, and have applied overly broad interpretations as to what the members have agreed to without their signature – just by simply taking their deed in hand.  In other words, the activist courts are imputing a “consent to agree” that does not exist in the CC&RS. And nobody warns the unsuspecting homeowner of the consequences of reaching out for that deed. Nobody!

A host of reputed rights are then examined by Grimm, but they read more like the documents of the Rights and Responsibilities of members (a document first used to explain what a democracy is all about and how citizens are to act;[i] and a publication of CAI Central). It is in stark contrast to the preamble to the US Bill of Rights, emphasis added,

THE Conventions of a number of the States, having at the time of their 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 ensure the beneficent ends of its institution.

This long time CAI stalwart attorney does not address the constitutional concerns raised in my The Truth in HOAs Disclosure Agreement, nor does she call for CAI to conduct such a poll. There is no support for my Declaration of US and State Citizenship. Grimm’s presentation misses this important point.

Nor does she mention that back in the 2008 – 2009 the California Law Review Commission’s attempt to rewrite the Davis-Stirling Act contained a proposed Chapter 2, Member Bill of Rights.  It was quickly removed and has not been adopted in the new law to become effective in 2014.  Nor does she present the homeowner advocates proposed homeowners bill of Rights published in the now defunct AHRC website and the AARP version written by David Kahne in 2006, among others.

It should be noted that in 2008 the Uniform State Laws Commission adopted a bill of right for UCIOA (UCIOBORA), but did not incorporate it was a part of UCIOA.  Rather, they created a separate version so that states can choose to adopt its so-called bill of rights or leave them out.  To date, no state has adopted this bill of rights.  It reads like your CC&Rs and pro-HOA state laws.  Nothing at all like the US Bill of Rights or the state Declarations of rights.

If HOA Land is to join the union and lose its independent principality status, thereby providing constitutional protections to the homeowners,  then Beth Grimm and all other CAI legal-academic aristocrats should be demanding the amendments to the Declaration  and state laws as proposed in my Declaration above,

The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.

Why aren’t they?  The above state law and mandatory Declaration amendments will put an end to the jokes and word games that attempt to hide the fact that HOAs are de facto but unrecognized governments operating outside the Constitution. And there will be a bona fide Bill of rights!

 


[i] The Rights of Man, Thomas Paine, 1791; The Declaration of the Rights of Man and of the Citizen, 1793, French revolution origins)

The HOA apathy affliction: a political dynamic

Everyone is unhappy with the pronounced apathy among those living in HOA-Land, where the lack of homeowner protections works for the power-elite, the board and its attorney.  CAI has complained many times about apathy when homeowners complain about the conduct of their boards.  CAI also complains how it can’t make “necessary” changes to the CC&Rs to bring them current with the laws.

Because of this apathy, homeowner advocates who are aware of the inequities of their HOA predicament cannot get their good neighbors — those who pay their dues and obey the rules — to support them in their efforts to obtain justice for all members. 

A recent approach being used by CAI in Arizona is to call for the complete rewrite of the CC&Rs to make the HOA a better place, the ostentatious reason, while including even more oppressive covenants and covenants that are highly favorable to the HOA attorney and its income stream.  In order to accomplish this, recourse is made to playing loosey-goosey with the strict Arizona laws for amending the CC&Rs. 

The law requires a written explanation of each and every change being made, which can be cumbersome, but the law is there to protect the homeowners. It’s a cost of making sweeping amendments all at once.  But the homeowners say and do nothing except to sign away their rights as good team players.

The political impact of these sweeping changes is made real by the apathy of the majority of the homeowners to agree to whatever the board proposes with the blessings of the HOA attorney, who wrote the revised CC&RS.  They can affect your pocketbook, your property rights, and your already weak voting rights.

A common change, minority control, was defeated in the 2011 legislative session that permitted minority control of the amendment process, thereby giving the political machine in power basically complete control of the HOA and over its apathetic members.  This political tactic relies on homeowner apathy to succeed.  It removes a vote of all the members and the long held doctrine of a supermajority vote, usually 67%, and replaces it with a majority vote of only those voting. 

Even with a 50% quorum as little as a 25% approval can affect the rights of ALL members, whether they agree or not.  And with the pro-HOA laws and unconscionable adhesion CC&Rs contract, the members will be just pawns in the hands of the board – just pay your dues and shut up, or else!

Homeowner apathy is a serious affliction in HOA-Land.  Under the current environment, it is the homeowner who must stand up and fight for his rights, in the HOA and at the legislature to change the laws.

Read about the Fourth Amendment to the Apache Wells CC&Rs, one real example. Just scroll down.

HOA-Land — the failure to democratize

Note: The following is an excerpt from my paper, Are the American people rejecting democracy at the local level?

HOA-Land — the failure to democratize

 Will the acceptance of authoritarian private local governments in the US result in a weakening of democracy in America, and destroy “one nation, indivisible, with liberty and justice for all”?  

“Democratization” describes the processes underlying “the emergence, the deepening, and survival of democracy” in a society.  Democratization is also concerned with the forces that affect the sustainability of a democracy.  And that’s the issue before us:  Has the First American Experiment with representative democracy succumbed to the “emergence and acceptance of a quiet innovation in housing,” the Second American Experiment? This New America of HOA-Land?[i] 

In his “Theories of Democratization”,[ii] Christian Welzel presents a case well applicable to HOA societies.  Welzel believes that, “Democratization is sustainable to the extent to which it advances in response to pressures from within a society.”  It appears that HOA-Land dwellers feel no need to pressure for change, just like Mayer discovered with his interviews after WW II.

People power is institutionalized through civic freedoms that entitle people to govern their lives, allowing them to follow their personal preferences in governing their private lives and to make their political preferences count in governing public life.

Since democracy is about people power, it originates in conditions that place resources of power in the hands of wider parts of the populace, such that authorities cannot access these resources without making concessions to their beholders. But when rulers gain access to a source of revenue they can bring under their control without anyone’s consent, they have the means to finance tools of coercion.

 The above amply defines the dynamics of political machines and power cliques that operate, more or less, within all HOAs from benevolent dictatorships to rogue boards. And with respect to voting as the sole indicator of a democracy, it is well known that HOAs are woefully deficient in fair and just elections, with no “fair elections” laws in effect. Welzel goes on to say,

Many new democracies have successfully installed competitive electoral regimes but their elites are corrupt and lack a commitment to the rule of law that is needed to enforce the civic freedoms that define democracy. These deficiencies render democracy ineffective. The installation of electoral democracy can be triggered by external forces and incentives. But whether electoral democracy becomes effective in respecting and protecting people’s civic freedoms depends on domestic factors. Democracies have become effective only where the masses put the elites under pressure to respect their freedoms.

 Once again we are told that there’s a need for pressure from within, from those living in HOAs, to uphold their Constitutional protections.  Even if state governments decide to enforce constitutional protections and the equal application of state laws, it remains with the HOA-Land residents to defend our system of government.  Welzel reaffirms this essential requirement, “It is only when people come to find appeal in the freedoms that define democracy that they begin to consider dictatorial powers as illegitimate.”

 Welzel offers a path to victory to stop this erosion of democracy within America that is highly applicable to the social movement for HOA reforms.

 As social movement research has shown, powerful mass movements do not simply emerge from growing resources among the population. Social movements must be inspired by a common cause that motivates their supporters to take costly and risky actions. This requires ideological ‘frames’ that create meaning and grant legitimacy to a common cause so that people follow it with inner conviction.

This is why values are important. To advance democracy, people have not only to be capable to struggle for its advancement; they also have to be willing to do so. And for this to happen, they must value the freedoms that define democracy. This is not always a given, and is subject to changes in the process of value transformation.

 And what about our elected officials?

 However, although Welzel writes that “elites [those in power, the cliques] concede democracy even in the absence of mass pressures”, it is only “when these elites depend on the will of external powers and when these powers are pushing for democracy.”   But, with respect to HOA regimes, Americans cannot accept this state of affairs by state legislatures, especially not with respect to these fundamental issues of democratic governance — the very soul of this country.  The absence of legislative support, sua sponte (on their own), for HOA reforms throughout the country is inexcusable! 

 


[i]Understanding the New America of HOA-Land, George K. Staropoli (StarMan Publishing 2010).

[ii] “Theories of Democratization”, Christian Welzel, Democratization, Christian W. Haerpfer, ed.  (Oxford University Press USA 2009).