HOA reforms needed to guarantee U.S. Constitutional protections

Letter to the Arizona Capitol Times, Nov. 25, 2005

Replacing democratic local governments with authoritarian private governments: Is this good public policy?

With another Legislative session soon to start, homeowner rights advocates are again seeking the substantive reforms to correct long-term problems with planned community governance. At the heart of the matter is the continued replacement of democratic local government, governments subject to the U.S. Constitution and 14th Amendment prohibitions, with contractual, authoritarian private governments that are not subject to the prohibitions of the 14th Amendment.

The two broad prohibitions within this amendment are the equal application of the law and the due process clauses that are not applicable to private agreements. Or are they?

I ask the legislators, the public interest organizations and policy makers to consider the following questions:

1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

3. When did “whatever the people privately contract” dominate the protections of the U.S. Constitution?

4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?

George K. Staropoli

In every stage of these oppressions ...

Below is a copy of an email sent to an inquiring Arizona homeowner:

Unfortunately, the "system" and powers that be do not see your problems, and those of other homeowners, as requiring the legislature to step in and protect homeowner rights.

Your voice needs to be heard at the legislature that will begin in January. We are again attempting to get enforcement on the agenda, licensing of HOAs and management firms, rather than an ineffective "complaint desk" ombudsman. We need enforcement of those laws that are still being ignored by HOAs and management firms, because there is no penalty to make them think twice.

We can require that HOAs post all infractions to the rules and the corresponding penalties, so, like with criminal law, homeowners can have proper notice. We can use an independent tribunal to hear and judge alleged violations of the rules, such as is available with the Office of Admin. Hearings for certain state agencies, but not for unlicensed HOAs.

We must remove the right of a foreclosure penalty that represents an unconstitutional cruel and unusual punishment of the homeowner who cannot meet their obligations to the HOA. The HOA is not at risk as is the mortgage company, and to take away a $200,000 home for a $200 debt obligation is, by anyone's standards, excessive punishment. If the HOA were a de jure government, this could not occur.

Each and every state legislature should be reminded of the words of the Declaration of Independence:

In every stage of these oppressions we have petitioned for redress in the most humble terms; our repeated petitions have been answered only by repeated injury.

Why the Hands-Off HOAs?

In Contracting Communities(1), the author makes a blunt statement of what really has occurred with respect to the alleged preference for planned communities:

Those seeking to secure premium ambience [the planned development concept] . . . may be motivated by the belief that this local public good will be capitalized into the resale price of their homes. . . . Residents in private developments purchase premium ambience by ceding property rights of their own, both directly through acceptance of reciprocal restrictions on their own land, and indirectly through the installation of a governance regime with the power to alter and enforce the prevailing land use controls.

But this is only one part of the reality that is promoted by the planned community special interests - the developers, the real estate agents, the Community Associations Institute (CAI), the Urban Land Institute (ULI), and almost every state legislator across the country. What has been kept hidden are

1. the questions of informed consent and misrepresentation in the advertising and selling processes,
2. the state's role in not protecting consumers by warning of the extremely prohibitive governing documents that contain very little homeowner rights protections,
3. the fact that this private contract permits these authoritarian private govenments to bypass the Constitutional protections that would apply if the HOA were a municipal government, a state agency or a state actor.
4. the court rulings that these type contracts have been found to be unconscionable adhesion contracts, and
5. the special interest promotion of the Uniform Comon Intrest Ownership Act (UCIOA), and its various state versions, recognize in Section 1.112 that the governing documents may indeed be found to be an unconscionable adhesion contract, and sets forth limitations as to how the court may proceed and what factors it may consider. (See 2005 NJ bill S2344, page, line 13 et seq.; 1994 draft model at Consumers for Housing Choice, http://www.consumersforhousingchoice.org/UCIOA%2094.htm).

What is the legitimate government interest that would justifiy this treatment of the public? What is the overriding necessity, not convenience,in support of this "hands off HOAs" position by the legislatures?


1. Contracting Communities, Lee Anne Fennell, 2004 U. Ill. L. Rev. 829 (2004)

HOA Bill of Rights misstated in Private Neighborhoods

On p. 102, Part 1, Ch. 4, of Robert Nelson's book, Private Neighborhoods, the author quotes my 2000 address to the Arizona Legislature's Interim HOA Committee, the "jump-off" event for the following 5 years of homeowner rights advocacy in Arizona.

The author also refers to HOANET as "a group of dissaffected unit owners", while stating'

"George Staropoli called on the state legislature to adopt a 'homeowner's bill of rights' that would be incorporated automatically in the founding documents of every neighborhood association and provide for 'legal sanctions against the abuse of these rights by the board of directors'".

The author then misstates my proposal as if it were a matter of consumer choice for individual associations to choose as they please. He then offers: "Many Americans have in effect chosen a dictatorship."

Below is an excerpt from my statement of Sept. 7, 2000:

Statement Prepared for presentation to the
Homeowners Association Study Committee Of the Arizona State Legislature
September 7, 2000


Good morning Mr. Chairman. Good morning ladies and gentlemen of the Committee. Once more I reluctantly find myself before the committee to speak against my neighbors and other citizens of Arizona. I don’t relish being here; however, circumstances and events have brought me here.

As in the times of 1776, a small, principled and dedicated group of citizens are seeking a redress of their grievances. They first looked to the existing government, the HOA Board, and having failed to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association and its controlling document, the CC&Rs. What is needed is an inclusion of a homeowners Bill of Rights and the removal of such onerous provisions that make the homeowner nothing more than an indentured servant, living at the suffrage of the board – pleased if the board is benevolent; living in fear if the board is oppressive. To quote from the Declaration of Independence,

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

“That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government . . .”

Continuing my quote,

“In every stage of these oppressions we have petitioned for redress in the most humble of terms; our repeated petitions have been answered only by repeated injury”.

The people of Arizona only wish to be able to present their case before this Committee in a fair and just manner. However, sadly I feel that, because of the composition of the committee they are being asked to justify their grievances before their oppressors; they are being put directly into a trial situation with their “oppressors” sitting in judgment. The homeowners, Arizona citizens in good standing, who find these truths to be self-evident, are being called to justify their complaints without the committee calling for the perpetrators to answer for these repeated acts against them.


Today we seek the replacement of the homeowners association form of totalitarian government as set forth in the CC&Rs. We seek, among other changes to the CC&Rs, the inclusion of a homeowners’ bill of rights, restoring those rights that every American is entitled to and should enjoy in today’s society.