Preface to HOA Common Sense

PREFACE

The title of this pamphlet, “Common Sense,” was chosen to identify and relate to the aims and purposes of the original 1776 pamphlet by Thomas Paine, Common Sense. Prior to the American Revolution it was Paine who provided the reasons and justifications for overthrowing the oppression government of King George III. He raised the consciousness of the colonists as to their second-class citizenship with respect to the British Empire, and something had to be done about. It was widely read by the Founding Fathers who did do something about it.

With a similar object in regard to oppressive, authoritarian HOA regimes, I present a summary of the essential issues that must be similarly remedied to bring about substantive changes to planned community/condo private governance.

Clarifications of meanings and concepts

A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region. The common, binding element of HOAs is its organic law foundation, from which flow all state laws and the declarations of CC&Rs boilerplate, is based on The Homes Association Handbook of 1964.


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.

An organic law is a law, or system of laws, that form the foundation of a government, corporation or any other organization’s body of rules. A constitution is a particular form of organic law for a sovereign state. The US has indeed a set of documents constituting its organic law.

Definition of HOA-LAND: 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.

Read the book: HOA Common Sense: rejecting private government, a summary of 6 constitutional defects.

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

What the Lost HOA Constitution webinar will reveal

Veritas para Justitia  (Truth for Justice)

May 22, 2020 11:00 AM PDT

To receive an invitation please respond to gks256@NYU.edu with “webinar” as the subject and the email address that you will use to participate

The 1964 Homes Association Handbook is the HOA “bible.” Here’s an example of the objectives of the origins of HOA-Land:

The last paragraph of the Foreword by the then ULI (Urban Land Institute) President reads:

“It is our firm belief that the information and recommendations contained in the handbook will be of major value to land developers, planners, home builders, appraisers, mortgage lenders, realtors, attorneys, association officers, and public officials concerned with the planning, development, and operation of stable and attractive residential areas for the home owner and the community.”

Reads like a money-making venture with a social value attached. Like selling a business product for the backers. The Handbook has no references to questions of local government or constitutional validity. But over the course of years HOAs have been sold as protecting property values, the greatest form of democracy, and “care-free living” among other “community” connotations. All purchased under a real estate contract and not under a commercial business or stock contract. Is this misrepresentation?

More can be found in the webinar.

 

Restoring the lost Constitution to HOA-Land

Some 23% of Americans live in HOA-Land, that collection of fragmented independent principalities known, in general, as HOAs. Overwhelmingly their members swear by the HOA as the next best thing to Mom’s apple pie. It is hard to accept this undying loyalty to the HOA and its board of directors in view of the fact that their acceptance of HOAs is the result of an intentional indoctrination by national lobbying, business trade group that, in my mind, does not know how to spell “constitution.. Obviously then, those CAI surveys are suspect.

HOAs are separate, local private governments not subject to the constitution, and collectively constitute a nation within a defined geographical region known as the United States. “A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.”

“Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

To provide the ignored but important and substantial aspects of the HOA legal scheme I have designated three books by StarMan Group under the collection, “Restoring the Lost Constitution to HOA-Land.” They are 1) HOA Common Sense: rejecting private government, a summary of 6 constitutional defects, 2) The HOA-Land Nation Within America, presenting the scope of outlaw private governments that deny constitutional protections to HOA members, and 3) The Plan to Restructure the Model of HOA Governance that advances a plan to restore the Constitution to HOAs while keeping the desired benefits of the “real estate package.” (All the above can be found on Amazon.com).

For a historical perspective of HOA-Land, see:

  • The Homes Associations Handbook (ULI, 1964). Not publicly available but I have a copy of the 434 page document).
  • Privatopia: Homeowner Associations and the Rise of Residential Private Government (1994), Evan McKenzie.
  • Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing (2000), Donald R. Stable. (ULI and CAI production).

(All the above, except for the Handbook,  can be found on Amazon.com).

Reorienting the HOA board: business judgment rule

Mentoring: Reorienting HOA board – business judgment

consulting SIG image1HOAs love business judgment rule (BJR) that can be found in too many court opinions including, as a prime example, the infamous NJ Supreme court opinion in Twin Rivers.

First, the business judgment rule protects members from arbitrary decision-making. . . . Our Appellate Division has uniformly invoked the business judgment rule in cases involving homeowners’ associations.[1]

In CAI’s amicus brief in the above case, argued that “the settled legal principles” of the business judgment rule

permit community association trustees to fulfill their fiduciary duties and to exercise judgment in balancing the needs and obligations of the community as a whole with those of individual homeowners and residents, without undue judicial interference.[2]

As can be noted, the CAI brief equates the HOA interests with the members’ interests and that it is acting in the best interests of the members subject to “the needs and obligations of the community.” Sort of confusing doubletalk me thinks.

Wayne Hyatt is quoted (p. 9) that the business judgment rule

defends the procedure under which the board has acted and the right of the board to be the sole arbiter of the issue involved. The result is that if the procedure is valid, the court will not second guess the substance of a board’s action. Consequently, the court upholds the decision without subjecting the wisdom of the board’s action to judicial scrutiny.[3]

In California’s Lamden v. La Jolla,

[A] hallmark of the business judgment rule is that, when the rule’s requirements are met, a court will not substitute its judgment for that of the corporation’s board of directors. . . . [A]nyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts ‘the risk that the power may be used in a way that benefits the commonality but harms the individual.’ “[4]

I cannot overstate the profound damaging effect by the courts as they continue to ignore HOAs as de facto governments and treat them as a pure real estate corporation. The School has performed an excellent job in creating a supportive mindset. Their demonstrable ignorance can only stem from the thorough indoctrination by the CAI School of HOA Governance that flows from the HOA “bible,” The Homes Association Handbook (cover page link).[5]

The BJR serves to protect the BOD from member lawsuits where the issues center on the BOD’s broad discretionary powers. Essentially the basis of BJR presumes that the BOD knows better about managing the HOA than the judge and, after all, the members chose the directors. In a cop-out not me attitude the judge simply goes along with the BOD’s position. YOU LOSE!

It is a very effective argument, tactic, because the homeowner and his attorney do not challenge this view that the BOD knows best. There is no rebuttal arguing that the BOD is practicing bad management, or is acting inconsistent with their obligation to act in members best interest – not in the best interest of the HOA. There is the presumption that the members’ interests are totally found in the governing documents and none other exist. It is an attitude in contrast to our Bill of Rights, Amendments 9 (enumeration clause) and 10 (rights delegated to the people).   Under the HOA “constitution,” any non- specified prohibitions or rights belong to the HOA and not its members.

Once again I’m touching upon a defect in the HOA legal scheme. Under corporation law the BOD is responsible to the HOA association. True! But the CC&Rs override that law. Why?  Let’s not forget that we have a PRIVATE contract agreed to by the members requiring the BOD to function in the best interest of the members.[6]  The private contract defense works for the members and not the BOD What’s fair is fair! Right?

In order to move past many of the persistent HOA problems and issues the BOD, as well as the legislators and courts, must adjust their views and mindset with respect to the HOA scheme. To restore equality before the law HOAs must be viewed as another form of local public government. The reorientation of the BOD comes first. There are ample materials, courses, seminars and public education, a substantial precedents and history on how to function as a public government and still protect and retain the private nature HOA community.

Notes

[1] CBTR v. Twin Rivers, 929 A.2d 1060, II, (N.J. 2007).

[2] CAI amicus brief, CBTR v. Twin Rivers (N.J. Super. App. Div. Docket C-121-00 2004).

[3] Id.

[4] Lamden v. La Jolla, 980 P.2d 940, Calif. 1999).

[5] The Homes Association Handbook, MARYJO CORNISH, Editor, Urban Land Institute, TB#50 (1964). Its Foreword omits any concern about the homeowners or constitutional government. See cover pages that provide evidence of lack of local government concern as part of the purpose of TB50. See Analysis of The Homes Association Handbook.

[6] See “HOA contractual mission” in Restructuring HOAs – intents and purposes.