The how and why of “boss” HOA presidents

This commentary is a follow up on my review of Kelly G. Richardsons’ article (Dictatorial HOA presidents and silent directors are at risk).

With all due respect to Richardson, his discussion of the role of HOA “boss” presidents and silent boards of directors makes no references to the causes of this common defect in the management of HOAs, or the more relevant, in ruling a community.  As an important CAI (Community Associations) lawyer advising and educating BODs on how to rule a community, we should expect not only answers but solutions as well.  His article does neither.

Richardson does  inform his readers about the makeup of good presidents: “Good HOA presidents understand the boundaries . . . . Good presidents are key . . . .”  He closes with the advice, “So, keep the good ones!”  He fails to address the legal structure of an adhesion contract and the CC&Rs that grant the BOD broad powers and authority. As such, the legal structure would not stand up to constitutional judicial scrutiny if the HOA were an arm of the state and not a private, contractual arrangement.

The legal structure prevents active, meaningful, democratic participation by members in board  elections and in amendments to the governing documents as found with public government. For example, members cannot file a petition, equivalent to a public domain initiative, requiring the BOD to hold a vote of the members on an issue, removing the absolute power to do as it pleases when contrary to the will of the  majority. The members would be able to contest the BOD’s position. Ihe absence of constitutional protections promotes the formation of power cliques that function as authoritarian governments. And so, we have “boss” presidents and silent boards of directors.

As a good lawyer, Richardson would probably say that this is the law, this is the way it is, and if you don’t like it change the laws. And who helped create and shape these pro-HOA laws?   For example, CAI has been involved since the beginning in 1964 in creating those Uniform Common Interest Ownership Acts (known as UCIOA) and adopted  with some modifications by a handful of states.

It’s up to YOU, as it has always been.

“It does not  help the sheep to blame the wolf. The sheep must not fall into the clutches of the wolf “ (Mahama Gandhi, fighting the imperialist British Empire).

Uniform Law Commission rejects subjecting HOAs to Constitution

Today I received a telephone rejection from ULC on my proposal for an HOA Members Bill of Rights.  It comes a day after my Commentary on ASU Law silence containing a statement that there has not been a ULC response, some 3 weeks after ULC’s Oct. 29 meeting.

“I am waiting for a response from The Uniform Law Commission (ULC) that is drafting updates to UCIOA. Its Scope Committee is reviewing my request for ULC study of my proposal for an HOA Member Bill of Rights; it will meet again in January.”

Nothing in writing, nothing formal, just a phone call. The essentials of the call, after a short debate where we could not reach an eye-to-eye understanding of what my point was, is very disappointing.

“I appreciate your call and our discussion on my rejected proposal.  I think we are too far apart at this time: ‘not functionally useful for lawyers,’ and ‘not workable.’”   The Scope Committee and editorial board “had difficulty in seeing HOAs as a government.”

In this call I stressed my proposed statute that would mandate HOAs to be subject to the Constitution like any other local government; the response was, “they didn’t see how that would help.

Long ago The Founding Fathers rejected the patchwork approach to modifying the Articles of Confederation and replaced it with a complete rewrite — The US Constitution and the Bill of Rights. It’s well beyond time that the HOA “constitution,” the CC&Rs, be replaced in its entirety as proposed in A Plan Toward Restructuring the HOA Model of Governance.

ULC apparently doesn’t believe so!

ASU Law ignores content-neutral free speech for HOAs

Much to my disappointment, the ASU Law library has not responded to my 3 emails[i] requesting an HOA advocate resource listing on its Homeowner Associations resource webpage. Under Books CAI attorney member Scott Carpenter is listed (reference is to an AZ Bar Assn booklet on HOA law, and under Websites AACM (community manager association) is listed.

Both of these listings carry the lobbying view found in the CAI School of HOA Governance.[ii] Neither address constitutional issues nor do they contain the views of constitutional lawyers. There is a constitutional issue at play as I informed the librarian and the Law School Dean  — the illegal bias toward one party’s content while denying another party’s material content. The law requires content-neutral free speech which I believe is being violated by ASU. So, as I proposed, remove these listings, or add my books and web pages or those of other homeowner rights advocates.

How can law students from the prestigious Sandra Day O’Connor School of Law obtain access to material information concerning the long ignored HOA legal scheme that, apparently, ASU does not agree with?  Change cannot occur in the blind! There cannot be change without change!

PS:  I am waiting for a response from The Uniform Law Commission (ULC) that is drafting updates to UCIOA. Its Scope Committee is reviewing my request for ULC study of my proposal for an HOA Member Bill of Rights; it will meet again in January.

NOTES


[i] Copy of email letter

gKS256@nyu.edu

To:  Beth DIFelice (beth.difelice@asu.edu)

CC: ‘douglas.sylvester@asu.edu’; Diana.Bowman@asu.edu

November 11, 2020

Email letter

Beth DiFelice

Director ASU Law Library

Sandra Day O’Connor College of Law

Arizona State University

[ii]  The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

Laws without enforcement are just recommendations

In response to a post by Maria Winlet on the FB page, “HOA Reform – stop the abuse”,  reporting an article by Jessica Boehm of The Arizona Republic, I posted the following on the FB page:

“Want to stop this flagrant abuse and lack of homeowner protection by pro-HOA biased legislation, here in az or in any other state? Let’s hope that the uniform law commission — creator of UCIOA and its failed 2008 bill of rights version — agrees to pursue a legitimate bill of rights focused on limiting HOA government and protecting member rights, as is the intent of the constitution’s bill of rights. Set to decide this Oct. 29th. * * * * the ULC scope committee is handling the review. Timothy Berg is the committee chair. You can send an email to info@uniformlaws.org attn T Berg with a reference to member bill of rights. They have my history of HOA member bill of rights as posted here and on my website. We must offset CAI’s influence.”

All advocates and homeowners need to do their part if substantive reforms are to become real.

Will ULC pursue HOA Member Bill of Rights?

“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?”[1]

In August I commented that I was working with 2 institutions on a Member Bill of Rights.[2]

“Currently, I am working with two leading institutions concerned with state laws and the constitutionality of the HOA legal  structure. Addressing the Bill of Rights issue is relevant to conducting necessary research and studies. A Homeowners Bill of Rights would be a major step toward the equal protection of the laws for members of HOAs.

“As a result of my proposed research by  independent, objective researchers,  the law will be clarified and all parties set straight as to their rights, and on the legitimacy and validity of independent private governments in America.”

The Uniform Law Commission  (ULC) will decide on the 29th whether or not to undertake a study of my proposal for  meaningful revision to its UCIOBORA (2008).  It’s composed of only attorneys appointed by state legislators and are pro bono.  I must call to your attention the long established presence of CAI at ULC and with respect to UCIOA.

I believe that ULC will move ahead and make the Constitution and state laws living documents reflecting the overwhelming evidence for the need to admit that HOAs are invalid ab initio — from the very start — agreements and are unconstitutional.  

Notes

[1] The “end of denial” of unconstitutional HOAs, August 5, 2020.

[1] HOA Bill of Rights redux, August 29, 2020. Updated, HOA bill of rights history updated Sept. 13, 2020