This demand for a homeowners bill of rights by homeowner rights advocates had its play back in the 1997 – 2008 period, some 10 years ago. There was:
- the AHRC’s 1997 bill,
- Lois and Samuel Pratt’s 1999 bill,
- my 2000 address to the AZ Legislature,
- the 2006 AARP bill of rights,
- and my 2008 “Members Bill of Rights” amendment to CLRC.
And there are undoubtedly others that I missed. Deborah Goonan recently re-posted a 2015 article speaking of no Bill of Rights and constitutional violations of the 14th Amendment. In 2017 the California Legislature adopted a limited bill of rights dealing with member political free speech.
A new look at homeowner rights is needed, one that takes a down-to-earth approach and focuses on the common CC&Rs covenants and bylaws that read like,
- If there are conflicts between the provisions of Arizona law, the Articles, the Declaration, and these By-Laws, the provisions of Arizona law, the Articles, and the By-Laws (in that order) shall prevail.
- these By-Laws [Declaration] may be amended only by the affirmative vote or written consent, or any combination thereof of Members representing at least 51% [67%] of the . . . votes in the Association.
- no amendment may remove, revoke, or modify any right or privilege of Declarant . . . without the written consent of Declarant
Over the years I’ve discovered that the courts have universally upheld the broad amendment covenant as generically stated in (2) above. The basis of their decisions is the very dangerous and overly broad interpretation that homeowners agreed to be bound by the CC&Rs and bylaws. Note that (3) above carves out an exception for the Declarant that requires his explicit consent, while accepting the majority rule principle in regard to the members. But, this “acceptance” to be bound by majority rule violates a fundamental right of citizens in regard a governmental “taking” or eminent domain action.
In many instances the courts have required 100% consent when the amendment adds new covenants, covenants not found in the CC&Rs, the most notable being changing from a voluntary HOA to a mandatory HOA. This would be inconsistent with (1) above that holds that the law of the land prevails, and which of course, the buyer also agreed to. But, CAI comes to the rescue and prevails in the courts that the CC&Rs and bylaws contain valid waivers and surrenders of fundamental rights, even to the extent of accepting implicit (not stated but presumed consent) waivers and surrenders as valid.
Hold on! It is long held legal doctrine that the surrender and waiver of these rights must be explicit, one by one. And that, under contract law, there must be a meeting of the minds with full consent and no misrepresentation in the buying process. I have concluded that,
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.
The point I wish to make is that the absence of any meaningful bill of rights that genuinely protects the rights of HOA members is ab initio (from the beginning) a rejection of democratic norms and institutions. The HOA cannot, therefore, be considered democratic by any means regardless of the propaganda by CAI and other pro-HOA supporters.
Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis.
. . . .
The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable.
Simply unbelievable! (In face of subsequent advocate criticisms, CAI began speaking of HOAs as a business, and we are seeing more and more statements that when a homebuyer signed his real estate contract, he was actually investing in a business. Unbelievable! Shades of George Orwell’s NewSpeak from his novel, 1984, where people are indoctrinated to hold 2 opposing views at the same time, and be at peace.)
What is intentionally absent — yes, intentionally otherwise the renowned CAI layers would have to claim incompetency regarding the law – is a Homeowners Bill of Rights. Can you imagine that if the HOA framers, those stakeholders, of the HOA concept had actually met and discussed with knowledgeable and informed public that there would be protections for homeowners? Can you imagine?
What the absent, yet informed public, would have added was a Preamble to an Amendment to the CC&R that would have been like that found in the Bill of Rights:
Preamble to the US Bill of Rights
“THE Conventions of a number of States, having at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution:”
The basis for the BOR was a distrust of government and the need to further protect the people. Regarding the HOA documents, the 9th and 10th Amendments, as applied to the HOA legal scheme, would prevent the broad interpretations that have been and are continuing being held by the courts. No more generalities, except in favor of the members. If it was good for America over 230 years, it must be good for HOA-Land!
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The 9th Amendment simply says that if it ain’t specified – enumerated — in the governing documents, it belongs to the membership. No more broad interpretations of waivers and surrenders of rights. The 10th Amendment simply says that if the members did not explicitly agree to certain HOA powers (delegated to), it belongs to the membership.
This is the argument and approach needed to get a Homeowners Bill of Rights accepted by state legislatures. It should be a national campaign by all advocate groups in all states for their next legislative session. There is time to organize and prepare.
 Supra, n. 1. “CLRC” is the California Law Review Commission.
 For a summary of the issues regarding the agreement to be bound position, see “Consent to be governed, No. 4”, HOA Common Sense: rejecting private government. The notes contain very important authorities on this issue. (In only one case did a court reject this position because it felt that the amendment exceeded the reasonable expectations of the homeowner. For example, having part of their assessments go toward a private entity unrelated to the HOA).
 CAI CEO Skiba in his April 2, 2008 Ungated blog entry.