Authoritarianism in America; authoritarianism in HOA-Land

Some 23% of Americans live in HOA-Land, that collection of fragmented independent principalities known, in general, as HOAs. 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.”

Jonathan Chait  (Nymag.com, Jan. 3, 2022), wrote last week,  “You can’t stop authoritarianism unless you understand it.” Consequently, my continued effort to reorient and reeducate HOA BODS and its followers.

The HOA is truly a totalitarian democracy.  In 2019 I wrote, “Authoritarianism in the HOA-Land Nation”

“A totalitarian democracy . . . retains full power of . . .  the right of control over everything and everyone. Maintenance of such power, in the absence of full support of the citizenry, requires the forceful suppression of any dissenting element except what the government purposely permits or organizes.”

The authoritarianism of HOA-Land  is masked by a thorough indoctrination that the real estate subdivision is a democratic community because the members are allowed to vote, as meaningless as it is. It seems that the more predisposed to authoritarian control the more the member acts as a diehard, dogmatic, true-believer in the BOD.

Read more Cult behavior within HOA-Land.

HOAs are not a club; they are legally binding agreements

HOAs are not a club.  They are legally binding adhesion agreements in favor of the HOA government, the BOD, and seriously detrimental to homeowner property interests and member fundamental rights.   Members are at risk because the private “contractual” CC&Rs have been held superior to the US Constitution by the courts.  The facts are there in the public records and state HOA statutes known as “Acts.”

It is in the best interest of the members not to obediently agree to all the BOD says they should, but to get educated and discover the truth for themselves. If they can handle the truth. Discover for yourselves.

My seminal book, The HOA-Land Nation Within America  describes the collection of HOAs throughout America as “HOA-Land.” It identifies HOA-Land as a nation within America based on its culture, beliefs, values, and commonality of contractual CC&Rs acting as its constitution.

My sequel to HOA-Land Nation, A Plan Toward Restructuring the HOA Model of Governance, another seminal work,  presents the case for the restructuring of the HOA model of governance. It seeks to bring the private government HOA into compliance with and subject to the Constitution as required of all local governments.

For important information, please see HOA board education in constitutionality

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).

The future form of HOA-Land

A little earlier I had commented that HOAs are here to stay, but face strong reforms. It was an appeal for all to get their voices heard and take the HOA-Public Attitude Survey. Allow me to clarify my position.

“HOA” has 2 common connotations: as a model of authoritarian private local government or as the real estate “package” of amenities, landscaping, and certain infrastructure. I have long maintained that the real estate package represents the end but the HOA government model is not the best means to achieve that end. And that state legislators have treated HOAs as independent principalities with their pro-HOA laws and support of de facto governments devoid of constitutional protections for HOA members.

The overwhelming reform legislation across the country presumes and accepts the validity of the governing documents and state laws. This is a loser position!

It implies the acceptance of the legitimacy of legal arguments supporting the governing documents and pro-HOA statutes. Advocates should be denying their validity and constitutionality; by failing to oppose these defensive arguments homeowners have put themselves in the weaker position of, Please sir, can I have some more justice? An example of reform legislation that challenges fundamental wrongs has been summarized in HOA Common Sense and the HOA-Land culture is presented in The HOA-Land Nation Within America .

Example: not only demanding the licensing HOA managers but holding them to the same statutes and rules   –  not CAI’s standards — as required of city/town manager; holding the BOD to the same standards as city/town councilmen. The constitutional arguments to use include: a violation of the equal protection of the law, holding the HOA as a state actor, or an unconstitutional special “franchise” of the state relating to these real estate “packages.” (“franchise: an authorization granted by a government or company to an individual or group enabling them to carry out specified commercial activities, e.g., providing a broadcasting service or acting as an agent for a company’s products.”

Advocates must not ignore these broad, constitutional arguments but educate themselves to understand them. I am urging advocates and homeowners to follow the path of the Founding Fathers who stopped toying with the Articles of Confederation as unworkable. Rather than continue to make the Articles work, they did away with them and created the Constitution of the United States.

HOA-Land will still be here but which form will it take? Spend another 30 years as before or go for fundamental reforms?

CAI maintains HOAs are protected by and do not violate the Constitution — not so!

Much to my surprise and astonishment I stumbled upon CAI’s press release on its website.[1] It informs the reader that all is well with the HOA legal scheme and there are no waivers of constitutional rights or other constitutionality problems. In fact, CAI claims that the Constitution protects the CC&Rs’ contract.

Contrary to conventional wisdom, Americans do not waive their constitutional rights when they move into a community association. In fact, courts have found that community association residents, by enacting reasonable rules for their own communities, are actually exercising their constitutional rights of association, contract, expression and assembly. . . . By purchasing homes in association-governed communities, buyers enter into constitutionally protected agreements with their neighbors.

The U.S. Constitution gives community association residents the right to govern their own communities without the need to get government’s permission to adopt rules. This prerogative is at the core of individual property rights and is a tradition that dates to the very founding of our nation.

I am not surprised at CAI’s failure to mention yours truly by name, the only outspoken advocate on HOA constitutional violations[2] that emphatically objects to and challenges CAI’s simplified arguments that misrepresent the law.

 

First paragraph fallacies:

Apparently agreeing to  free speech restrictions on displaying signs or flying the flag and due process protections are not considered a waiver or surrender of rights by CAI. CAI’s position that the right to associate and to enter into private contracts is protected by the Constitution is a false and naïve argument. Can you and I privately agree to violate the Constitution, and to associate in community where its government is not subject to the same restrictions as public government?

There are conditions for a voluntary waiver and surrender of constitutional rights that the CC&Rs agreement fails to meet, especially when it comes to implied waivers — those not specifically stated. But somehow the courts enforce the CC&Rs as if they met the requirements for constitutional waivers, like the Twin Rivers[3] case that CAI is relying on. CAI doesn’t mention its amicus curiae that argued “In the context of community associations, the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) raises the likelihood that judicial intervention will become the norm . . . .” If no rights were waived, why then is CAI so concerned about restoring them?

I have raised the valid argument of misrepresentation in the selling process and that the buyer was misled and not fully informed as to the consequences of his entering HOA-Land. No one, who firmly believes that HOAs are good for America, has stepped forward and publically signed the Homeowner Association Consent to be Governed Agreement: A Model Act[4] that a sign-off of explicit waivers and surrenders of constitutional rights (in paragraph 3), including a waiver of the equal protection of the laws.

Second paragraph fallacies

I explain in “HOAs violate local home rule doctrine” (see note 2 below) that HOAs are allowed operate far beyond state laws relating to home rule statutes, granting HOAs independent political government powers are denied to legitimate home rule communities. Consequently, HOAs are being treated with special laws for special entities in violation of the Constitution, federal and state.

The question that I have raised, and ignored by CAI in its release and in other communications, is summed up in the following statement: “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.” In essence, HOAs have been allowed to operate outside the Constitution as authoritarian independent principalities, violating the fundamental principles and values underlying our American way of life.

While CAI publicizes its claims to be working for productive, healthy and desirable communities, it is apparent that these communities are not part the American system of democratic government. It advertises that it is an educational organization, yet conducts surveys to promote its view of what is good for HOA-Land.

References

[1] https://www.caionline.org/PressReleases/_layouts/15/WopiFrame.aspx? sourcedoc=/PressReleases/Media%20Statements/Homeowners%20and%20Constitutional%20Rights.doc&action=default. October 7, 2015. (I don’t know how long this has been there, but CAI has revised its website recently.)

[2] See in general, CC&Rs are a devise for de facto HOA governments to escape constitutional government; Unconstitutional delegation of power to HOAs; HOAs violate local home rule doctrine and are outlaw governments.

[3] CBTW v. Twin Rivers, 929 A.2d 1060 (2007).

[4] An example: “d). I understand that the association, as a private entity and not an arm of the state, is not subject to the restrictions and prohibitions of the 14th Amendment to the US Constitution that otherwise protects the rights of the people against actions by public government entities; (g) that there are no equivalent clean or fair elections procedures to protect the integrity of the HOA election process as found in public government elections.” http://pvtgov.org/pvtgov/agree-disclose-license.pdf.