America’s homeland: HOA law vs. Home rule law

Why are there private HOA governments when there are home rule, charter governments?

Getting down to the issues of state laws relating to local governments, let’s examine the doctrine of home rule. Under the home rule doctrine local communities are permitted a large degree of independence even to the extent that state legislative action is not necessary. What is home rule? In simple terms, it is a grant of authority and power — of independence — from the legislature to local communities.  (See HOAs violate local home rule doctrine and are outlaw governments; AZ Supreme Court, Tucson v. Arizona, CV-11-0150-PR (2011).)

 All the states have a version of home rule that varies in the degree of independence granted to a local governments and under what terms. Check your state laws under home rule or charter government. Strict states treat the home rule powers strictly as set forth in the statutes, like agency enabling acts. Most states have allowed for wider freedoms to local home rule governments, with some allowing for local government charters functioning as a local constitutions.  In all cases it’s a grant of independent governance from the legislature on local matters.

As an example, Arizona’s Constitution allows for home rule charter governments.

 “The purpose of the home rule charter provision of the Constitution was to render the cities adopting such charter provisions as nearly independent of state legislation as was possible. . . .  ‘[A] home rule city deriving its powers from the Constitution is independent of the state Legislature as to all subjects of strictly local municipal Concern.’”

The masquerade

Given this existing legal mechanism for strong, independent  local control, why was there a need for the creation and approval of, and the support for, private government HOAs?  Could it be as Prof. McKenzie stated in his 1994 book, Privatopia? “CIDs [HOAs/POAs/RCAs] currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent to local governments.”

It’s obvious that it was not to create healthy, productive communities.  Was it a business venture from the start to make profits for the originators masquerading as a public serve and benefit?? Was it for the real estate agents and the home builders, and to cut state government costs?

HOA associations are political bodies

The effective management of a political community, as are HOAs, and remain part of the greater political communities of their state and federal government, necessitates a rejection of the HOA legal scheme and its protectives laws.    There are no legitimate reasons why HOA governed communities cannot exercise effective and productive self-government while  being subject to constitutional law under home rule statutes.

Home rule doctrine existed long before the advent of the HOA legal structure in 1964. That is not to say that it would have solved all problems and be a perfect government, but it would be a government under the Constitution, part of the Union,  like all other forms of local government.  

If the initial 1964 HOA concept had included home rule provisions, then there would be no need for a restructuring.

Preface to Restructure HOA Supplement

Preface

People could care less about the truth. People buy promises and dreams. They’ll do anything to avoid reality” (anonymous)

The above quote, reflecting human nature,  gets to the very heart of the HOA-Land problem. It applies not only to SCG but to all HOA members throughout America.  In a sarcastic Nextdoor  post, the writer expressed his feelings that my posts were, in my words too cute, and that he didn’t want “to be in an association that George had anything to do with . . . and take his trouble making rhetoric to other lucky people.” I responded:

“My HOA right or wrong! So what if it has violated state laws and the governing documents, and refuses to defend itself. So what! As long as the amenities keep coming and assessments stay low, I guess all is OK.”

I have high hopes that all HOA members will follow their conscience and do what is right for their community, their state, and for America.  The alternative is a rejection of our democratic institutions, our constitutional government,  and the principles and values that we, as Americans, stand for.  The alternative is an acceptance of the HOA-Land Nation Within America.

* * * *

For this case study, my objective was to unveil the truth and advise the BOD of a $22 million revenues, 9,500 unit, active-adult community in Arizona as to its conduct in deciding difficult and controversial  issues.  I put my management/BOD skills to work and began the study. It is very important in the learning process to share recommendations with others, and to accept their constructive criticism. Readers can reject, modify, or remove recommendations. This approach sharpens one’s thinking and helps to make a more solid case for HOA reforms.

In regard to the SCG members at large — apathy evidenced by silence or perhaps fear — prevailed as commonly found in HOA-Land. The vast majority of comments  to my posts on social media and elsewhere were irrelevant and without merit. They failed to address my messages concerning  violations of the laws and governing documents by boards of directors.   Rather, they focused on my HOA right or wrong, take it or leave it, and move out

 The necessary first step for democratic reforms, as proposed in A Plan Toward Restructuring the HOA Model of Governance, is the reorientation and reeducation of the pubic and especially boards of directors. Based on my experience I presumed that  they are uninformed and many prefer to remain uninformed; wrongly believing, and being led to believe,  that their HOA is  a wonderful country club instead of a legally binding contract between them and their HOA. 

The findings from this research reaffirmed this view of HOA directors and members regardless of income or education levels — they are highly uninformed about the legal and governmental issues of an HOA association. It seems that the  boards of directors over the years were and are heavily influenced by the Community Associations Institute’s teachings and programs.

Collectively referenced as the CAI School of HOA Governance  stemming from its focus on “large-scale associations,” such as SCG. Some 13 SCG members served as CAI members, including CAI presidents or directors, while serving as SCG’s presidents, directors, and committee chairs.  Its impact is devastating and cannot be underestimated.

This finding was very disappointing!  The behavior and conduct by the leadership displayed false and misleading information, an illusion of “no problems here,” and for the most part, silence. It supported the position of authoritarian and cult followers as maintained in the Plan’s view of the HOA Culture, and its description of the social and political dynamics at work in HOA-Land.

This Supplement is organized in time sequence based on posts made to the HOA Constitutional Government website, including comments,  referencing or alluding to emails, to  the official Sun City Grand website’s News of the Day posts; and to posts and comments to social media websites: NextDoor (Desert Sage); Facebook’s Sun City Grand Members (AZ), closed by Administrator’ opposition; and Members of Sun City Grand AZ.

These exchanges are all reproduced as is, unedited except for  omissions of non-relevant sections.  In this manner, lacking audio-video materials, one can get a feeling of the posters’/commentators’ message tone.

George K. Staropoli

February 14, 2022

Restructure HOAs supplement released; join new website

To the concerned public and HOA members:

I am extending an invitation for the public at large, and in particular to members of HOAs across America, to join this FB group and keep abreast of critical developments and information regarding your membership and property rights in your castle, your home. Information not covered by the establishment, the self-proclaimed HOA educators.

In 2020 I released my 68-page A Plan Toward Restructuring the HOA Model of Governance, after 20 years of HOA reform activism. I also published a FAQ to answer questions regarding concern that a restructuring would damage the highly desirable HOA real estate package. “HOA” can also refer to the de facto local government of the real estate package, the condo or subdivision PUD. I believe that my plan would return HOAs to constitutional government with its protections for the rights and freedoms of citizens, severely lacking under your declaration of CC&Rs.

A detailed 27-page supplement, supporting the positions contained in the Plan and documenting the events and developments of a $22 million HOA in Arizona is now available. 

Just visit the site Restructure HOAs Plan and click on the JOIN button. It’s that easy.

Hope to see you there!

A history of the institutionalization of HOAs

After 58 years, the public, the legislators, the media, and the HOA boards of directors and vast majority of members have remained quietly accepting HOAs as a private form of local government.

People could care less about the truth. People buy promises and dreams. They’ll do anything to avoid reality” (anonymous)

The above quote, reflecting human nature,  gets to the very heart of the HOA-Land problem. It applies to all HOA members throughout America.  In a sarcastic Nextdoor  post, the writer expressed his feelings that my posts presenting justifications for restructuring HOA-Land were, in my words too cute. He didn’t want “to be in an association that George had anything to do with . . . and take his trouble making rhetoric to other lucky people.”

I responded:

My HOA right or wrong! So what if it has violated state laws and the governing documents, and refuses to defend itself. So what! As long as the amenities keep coming and assessments stay low, I guess all is OK.”

I have high hopes that all HOA members will follow their conscience and do what is right for their community, their state, and for America.  The alternative is a rejection of our democratic institutions, our constitutional government,  and the principles and values that we, as Americans, stand for.  The alternative is an acceptance of the HOA-Land Nation Within America.

proposed HOA constitutionality bill

“Now is the time for all good homeowner advocate leaders to come to the aid of member-owners”

 living in HOAs and suffering abuse, financial and emotional distress as a result of BODs being  protected by Arizona laws. These abuses are easy to understand and support! (See HOA Common Sense: rejecting private government and The HOA-Land Nation Within America).

A quick and simple — but highly effective — bill that was proposed in March 2011 and will bring relief to homeowners being treated a second-class citizens by state laws in support of the HOA legal scheme. It was ignored by Arizona advocates and dismissed by the Legislature.

“No provision of any contract or any declaration of covenants, conditions, and restrictions . . . 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 . . . . Any representation or statement offered as clear and convincing evidence . . . shall include a signed statement containing the following, beginning with “I understand that I can ask that the following be read and explained to my satisfaction.”

So reads an excerpt from my proposed “Truth in HOAs” statute that should be made law in each and every state. That is, if indeed the legislature stands by the Declaration of Independence and the US Constitution, which we are hearing so much about in the media nowadays.”

The “The Truth in HOAs Act,” as I called  it,  allows each state to modify the proposal in accordance with its state HOA/condo acts — shown in square brackets [].  Also, subsection (3) contains a list of acknowledgements  that can be tailored to each state’s advocate lobbying efforts.  See Arizona Truth in HOAs statute (pvtgov.org).  The essential bill section is contained in subparagraph (4).

Therefore, in reference to subsection 3(d) above, 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.

 The real estate subdivision or condominium will not be affected by requiring HOAs to join with other forms of local government and be subject to the Constitution as a home rule entity.  See HOAs violate local home rule doctrine and are outlaw governments.

This 2022 legislative session offers a unique, one-time opportunity to get the message across and to educate the legislators. Remaining silent on the issues only plays into the pro-HOA hands of CAI and offers excuses by the media not to cover HOA abuse.  Not only will you find “ammunition” in support of your arguments as contained in the 2 above publications, but also in my Arizona Supreme Court  amicus brief filed and accepted in Tarter v. Bendt (see note (vi) in Can HOA members expect justice in Arizona courts?).

My arguments are summarized in the Commentary.  As is my approach, my arguments are supported by legal authority and hard evidence documents, which CAI ignores and YOU lose!  They must be exposed if the legislators are to be fully informed on the reality of HOA-Land.  As leaders who are internet publishers,  actions speak louder than words!