Failing to achieve substantive HOA reforms

Is there a way out?  Definitely yes!

It is not by going to state legislatures to be repeatedly rejected, or given token reforms but with no substantive redress of grievances. It is not by repeatedly expecting the courts to do homeowner justice in spite of the strong stare decisis precedent of pro-HOA laws and public policy favoring HOA-Land. It is not by expecting law colleges to provide a balanced educational program in law for students that includes HOA constitutionality.

And it is not by hoping that the media — granted special 1st Amendment protections to inform and educate the citizens on political matters — will measure up and so present the whole HOA truth that has been so long hidden from the public.

As a result of my 21 years of activism and advocacy for HOA constitutionality, and my education and detailed research, I have come to understand the greater social and political forces at work. These forces that have led to the current culture and environment surrounding the HOA legal scheme and structure. They are detailed in my “The HOA-Land Culture.”

Read more at Cult behavior within HOA-Land and Plan to Restructure HOA model.

The “end of denial” of unconstitutional HOAs

Ibram X. Kendi’s article, “The End of Denial,” appears in the September 2020 Atlantic Monthly. While Kendi argues that the upsurge in the denial of racism is a major step to ending racism in America, I can expand upon this mindset shift, this reorientation,  to ending the denial of the unconstitutionality of the HOA legal scheme and model of local government. This mindset shift will produce the broad, substantial reforms to the current prejudicial view favoring authoritarian,  private government HOAs.

Applying Kendi’s view to HOA constitutionality, Kendi urged “The American people [to] give policy makers an ultimatum: Use your power to radically reduce inequity and injustice, or be voted out”; and that “the American people [must] demand equitable results, not speeches that make them feel good about themselves and their country.”[1]

I have proposed a plan to accomplish this HOA mindset shift,

“Restructuring the HOA-Land Nation  requires a cultural change in in the way of life of members; and an appropriate change in attitude by  state legislatures, the people and the home buying public.”[2]

and describe the underlying HOA social and political culture,[3]

“This HOA-Land Nation Within America white paper challenges, confronts, and exposes the self-interest bias by pro-HOA stalwarts, and contains authoritative documentation and evidence as well as statements used in this indoctrination process.”

The question that I posed to the policymakers, the constitutional pundits, and Arizona Legislature as far back as 2006 remains long unanswered:

“Can private parties enter into contractual arrangements, using adhesion contracts and a constructive notice consent, that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?”

Following Kendi’s lead, it is well beyond time for the denial of unconstitutional HOAs to end. It remains in the hands of Americans to demand that the state and local governments, the policymakers, and the constitutional pundits restore full citizenship to Americans living in authoritarian, private governments functioning outside the Constitution.

References


[1] “Ibram X. Kendi on ‘The End of Denial’”, Press Room, The Atlantic Monthly, August 5, 2020.

[2] George K. Staropoli,  A Plan Toward Restoring the HOA Model of Governance, StarMan Publishing (2019). Amazon.com: https://www.amazon.com/dp/b089yvpcwp.

[3] George K. Staropoli, The HOA-Land Nation Within America, StarMan Publishing (2019). Amazon.com: https://www.amazon.com/dp/b07r6xc1yt.                               

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).

Goldwater Institute ignores HOA unconstitutionality

Reading through the highly respected Christina Sandefur’s paper in the Harvard Law Journal,[1] I was deeply disturbed by the absence of any discussion of similar conduct by homeowners associations (HOAs). Her paper criticized city ordinance prohibitions on short-term home rentals. “These cities treat home sharing itself as the crime.” It is a dangerous proposition that government . . . [to] be able to criminalize violations of that judgment” [“on how to use their properties”].

Yet, in her one single sentence, Sanderfur holds HOAs harmless that, by means of the governing documents, use their “police powers” to prohibit short-term rentals and from criminalizing such acts by their members. While that may be the role of a homeowner association when people contract to determine to how to use their properties, a city government should not have that power.”

Sanderfur’s arguments against government statutory prohibitions, include in part,

  • “Cities look at this as a way to increase revenues” by imposition of fines,
  • “They get to outlaw the activity,”
  • Intimidate residents [of the city] into giving up their property rights”,
  • “This is not only abhorrent public policy, and
  • “It is also unconstitutional”.

It seems that these arguments apply to HOAs also, but it appears that nobody is listening. I do not understand and cannot understand this blindness to the constitutional issues surrounding HOAs, especially from the prestigious, defending the Constitution, public interest Goldwater Institute.

What is the rationale behind this blindness when there is substantial legal authority in support of unconstitutionality, from the basic outlaw government of independent principalities that reject the US Constitution,[2] to placing the doctrine of equitable servitudes property law over constitutional law and contract law;[3] to gross misrepresentation in the selling and marketing of HOAs that invalidate and thought of a bona fide consent to be bound.[4]

When will Goldwater question the constitutionality of the HOA model of government? Why is Goldwater viewing an HOA just as a real estate subdivision package of amenities, landscaping, homes and not as a distinct form of local government[5] functioning outside the laws of the land as an outlaw government.

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.” (George K. Staropoli).

 CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local governments.[6]

There is no compelling and necessary justification for HOA special treatment. It’s time to end these outlaw private governments that violate even the most liberal home rule, self-governing provisions of state laws and constitutions.[7]

I do not see Goldwater’s name on the list of Arizona’s Request to Speak positions on SB 1412,[8] a bill prohibiting HOAs from restricting the political free speech rights of homeowners in regard to political issues within the HOA community. California just passed SB 323, a progressive bill supporting homeowner rights, and Florida has SB 623 in the works also seeking homeowner rights and freedoms within the HOA legal structure.[9] This a very good time for Goldwater to speak out on this bill and HOA member rights, freedoms and privileges and immunities as US citizens.

 

The Goldwater Institute, including Sanderfur, has been on my distribution list for some time as well as Victor Riches, President & CEO, whom I met and discussed HOA problems as far back as the early 2000s when he was an Arizona legislative staff analyst. I also met with and discussed HOAs with Clint Bolick, now AZ Supreme Court Justice, who in 2013 accepted my request for legal assistance to sue the State of Arizona. He was preempted by Tim Hogan of ACLPI.[10] It was with Nick Dranias that I had a pleasant Arizona Capital Times exchange on HOA issues.[11] He offered, privately, some advice that I have incorporated into my Truth In HOAs position and Homeowner Declaration.

 

Notes

[1] Christina Sandefur, “Turning Entrepreneurs into Outlaws,” p. 45 et seq., Harv. J.L. & Policy, Winter 2020. Sanderfur is an Exec. VP, Goldwater Institute.

[2] See The HOA Principality (2005); HOA-Land: the product of the decline in democratic institutions in America. (2018).

[3] The Restatement advises judges — and is regarded as precedent — that its collection of laws known as HOA law dominates all others.   Section 6.13, comment a, states: “The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law”. Section 3.1, comment h, states: “in the event of a conflict between servitudes law and the law applicable to the association form, servitudes law should control.” See CC&Rs are a devise for de facto HOA governments to escape constitutional government (2015).

[4] See HOA consent to agree vs. “the will of the majority”. (2019).

[5] The four recognized types of local government are : commission, and council-manager, the most prevalent. See in general, Roger L. Kemp, “Forms of Governance,” Managing America’s Cities: A Handbook for Local Government Productivity, McFarland & Co., (2007).

[6] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[7] See in general, HOAs violate local home rule doctrine and are outlaw governments, concluding paragraph. (2014).

[8] AZ RTS positions as of today, March 4, 2020.

[9] See Toward a democratic HOA subject to the Constitution (2020).

[10] See AZ Attorney General admits SB 1454 HOA to be invalid and without effect (2013).

[11] See Goldwater Institute: regulating HOAs “stands Constitution on its head” (2008).

Rigged HOA elections create a false democracy

Long ago in 1994 Professor McKenzie wrote, “HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[i]  There is no better example of HOA independence than prejudiced HOA election procedures.  In 2013 I wrote,

“HOA members have been repeatedly told that they can change things in their HOA by voting for board members and even by changing the governing documents; that HOAs are democratic because members can vote to make these changes happen. . . . 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.[ii]

CAI, on the other hand, maintains in its Public Policy statement that,

“Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community.[iii]

Let me give a prime example of far these pro-HOA procedures can go to deny members a fair and just voting process, one that subtly favors the HOA Board.  In this large scale HOA in Arizona with over 9,000 homes and some $20 million in revenues, amendments to the CC&RS and bylaws are needed to be approved by 67% of the membership.

The governing documents have an unusual, non-standard voting procedure that allows for “consent” by the members, in addition to an actual vote, which constituts a vote and are counted in the approval requirement. Members just have to fill out a form and submit it.  Surprisingly, in contrast to the public voting procedures, this procedure contains

  • no mention of a “cutoff date,” the date that the Consent Form needed to be received by the election committee. A start date, date form first distributed, is mentioned and currently is 5 months ago.
  • no opportunity for a “no” vote, just the wording that not submitting the form would be seen as choosing “ not to consenting to the documents.”
  • A biased, pro-HOA “advertising” on the form itself without any mention of opposing views. “ Moving Forward to the Future.” Other advocacy by the Board is prominent.
  • An annual membership meeting scheduled some 6 months after the ability to submit a Consent Form, but the agenda was silent on actual voting for these amendments instead of submitting a Consent Form, or announcing the results of the “vote.”

This method of voting by the HOA would not pass muster in the public realm.  So much for democracy in action. This election process is rigged in favor of approval, is unjust and negates any choice by the members who may wish to submit a NO vote.  It’s a no-lose approach for the Board since the Form does not allow for NO votes!  It would never fly under the public realm’s fair elections requirements.

In Wittenburg v. Beachwalk HOA,[iv] the California appellate court held that a board is engaged in advocacy when it supported and  urged an approval vote in its materials and communications. The Court’s view was that opposing parties must be given equal opportunity to advocate against the proposition, which is being denied in the above instance, by not allowing a no vote and the open-ended voting process of form submissions with only YES votes.

The Court held that the relevant statute was in the public interest and it sought to

“provide substantial new voting protections” to members of homeowner associations designed to “guarantee that basic democratic principles are in place during elections,” which had previously been “contaminated by manipulation, oppression and intimidation of members, as well as outright fraud.”[v]

Yet, overwhelmingly, according to the CAI surveys, HOA members standby their HOA even though it operates outside of constitutional protections and the laws of the land.  They seem to believe that, like a King, their board can do  no wrong; that, contrary to James Madison’s view that “If angels were to gvern men, neither internal  nor external controls on government would be necessary,” their board must consist of angels.

The HOA legal scheme as set forth in the governing documents and pro-HOA state laws, does not contain a fundamental principle of our constitutional system of government:  checks and balances. The HOA board basically has, for all practical purposes, a free hand to function as an authoritarian government.

By: George K. Staropoli

 

References

[i] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[ii]Democratic Elections No. 5,” George K. Staropoli, HOA Common Sense: rejecting private government.

[iii] Section 8 in An Introduction to Community Association Living (2006).

[iv] Wittenburg v. Beachwalk HOA,  217 Cal.App.4th 654 (2013).

[v] Id.