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.

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.

What does “HOA” really mean?

What are we talking about when we hear “I live in an HOA” or “what are my HOA fees?” Allow me to clarify some important concepts and definitions that I have employed to help in understanding what we are really talking about.

  • The term “HOA” is commonly used in 2 different aspects.
    • While commonly used to refer to the alleged community, in reality the “community” is a real estate “package” of homes, landscaping, amenities, and rules.
    • “HOA” more aptly applies to the association itself, which is the de facto – in fact – political governing body of the subdivision or real estate “package.”
  • “Government,” meaning political government, is defined in its general sense as “the person or group that controls and regulates the people within a territory.” Since your subdivision is a territory, that makes the HOA a truly political government.
  • “Private government” is a de facto government as defined above not incorporated under municipal statutes but under nonprofit corporation statutes. As such, it is a functioning government unrecognized by the state as Cuba had been for years.
  • “Quasi-government” simply means for all intents and purposes having all the attributes of a municipal government, except the names have been changed to mislead the innocent public.
  • “HOA-Land” is my descriptive term for “the 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.”
  • “Structured tribalism.” Tribalism is a term currently in vogue to describe divisiveness in America. “Structured tribalism” extends that view to describe the intentionally planned policy for the acceptance and control of HOA-Land.[1] It views the fragmented HOA-Land as distinct villages and clans.

When I speak of restructuring the HOA, I am referring to the authoritarian, undemocratic body functioning outside of constitutional protections, and making it a democratic government subject to homeowner constitutional protections.

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).