HOAs cannot be viewed as a property interest only
Excerpts from my July 6, 2005 email letter to the California Law Review Commission relating to Memorandum 2005-25.
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Should public policy uphold the current doctrine that equitable servitudes are binding contracts that are agreed to by a purchaser when title to his home is accepted? Shouldn’t there be legislation to protect average citizens, home buyers and not experienced real estate investors, from this constructive notice binding of a waiver and surrender of rights enjoyed by other home buyers? Shouldn’t there be legislation that calls for an explicit waiver of such rights after being fully informed of the consequences and impact of buying in a CID? Current disclosure laws fall far short of a comprehensive “red herring” warning to perspective buyers.
A waiver of constitutional rights must be voluntary and intelligent, it must have been made knowingly, and with sufficient awareness of the relevant circumstances and likely consequences. Stated otherwise, a valid waiver connotes an intentional relinquishment or abandonment of a known right or privilege. Certainly, a waiver may not rest on mistake or ignorance. 16 C.J.S. Constitutional Law § 82.
“[A]nd upon analysis of the association's functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government. As a 'mini-government,' the association provides to its members, in almost every case, utility services, road maintenance, street and common area lighting, and refuse removal.”
. . .
With power, of course, comes the potential for abuse. Therefore, the Association must be held to a high standard of responsibility: "The business and governmental aspects of the association and the association's relationship to its members clearly give rise to a special sense of responsibility upon the officers and directors.... This special responsibility is manifested in the requirements of fiduciary duties and the requirements of due process, equal protection, and fair dealing." (Id at p. 921.) (See Raven's Cove Townhomes, Inc. v. Knuppe Development Co.,supra, 114 Cal.App.3d 783, 792-799.) [142 Cal.App.3d 652] Cohen v. Kite Hill Community Assn. 142 Cal.App.3d 642 , 191 Cal.Rptr. 209 (1983) (citing Hyatt and Rhodes, Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations 12 Wake Forest Law Review at page 915 (1976)).
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The complete letter can be viewed at Property .
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Should public policy uphold the current doctrine that equitable servitudes are binding contracts that are agreed to by a purchaser when title to his home is accepted? Shouldn’t there be legislation to protect average citizens, home buyers and not experienced real estate investors, from this constructive notice binding of a waiver and surrender of rights enjoyed by other home buyers? Shouldn’t there be legislation that calls for an explicit waiver of such rights after being fully informed of the consequences and impact of buying in a CID? Current disclosure laws fall far short of a comprehensive “red herring” warning to perspective buyers.
A waiver of constitutional rights must be voluntary and intelligent, it must have been made knowingly, and with sufficient awareness of the relevant circumstances and likely consequences. Stated otherwise, a valid waiver connotes an intentional relinquishment or abandonment of a known right or privilege. Certainly, a waiver may not rest on mistake or ignorance. 16 C.J.S. Constitutional Law § 82.
“[A]nd upon analysis of the association's functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government. As a 'mini-government,' the association provides to its members, in almost every case, utility services, road maintenance, street and common area lighting, and refuse removal.”
. . .
With power, of course, comes the potential for abuse. Therefore, the Association must be held to a high standard of responsibility: "The business and governmental aspects of the association and the association's relationship to its members clearly give rise to a special sense of responsibility upon the officers and directors.... This special responsibility is manifested in the requirements of fiduciary duties and the requirements of due process, equal protection, and fair dealing." (Id at p. 921.) (See Raven's Cove Townhomes, Inc. v. Knuppe Development Co.,supra, 114 Cal.App.3d 783, 792-799.) [142 Cal.App.3d 652] Cohen v. Kite Hill Community Assn. 142 Cal.App.3d 642 , 191 Cal.Rptr. 209 (1983) (citing Hyatt and Rhodes, Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations 12 Wake Forest Law Review at page 915 (1976)).
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The complete letter can be viewed at Property .
posted by Citizens for Constitutional Local Government | 10:30 AM
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