The HOA Principality

A few years ago I made the comparison that HOAs were a modern version of the independent city-states of ancient Greece and medieval times. I was wrong. I was wrong because these city-states had no higher-level government, no king or emperor, to whom they were answerable. That's why they were independent city-states.

The more accurate comparison would be to principalities that exist in small numbers today in Europe; such as, the Principality of Monaco. They exist within the boundaries of a larger political body, the country or nation, and are essentially self-governing with their own laws. They are governed by an almost absolute ruler, the Prince. They are protected, a "protectorate" you might say, by their surrounding nations and exist by this "higher" government choosing to honor the principality in accordance with its laws.

Today, in the United States of America, the federal and state political bodies have issued "charters" to private individuals, granting them the status equivalent to a principality, much as the kings and emperors of the 16th - 18th centuries handed out charters to loyal followers. These modern charters are known as homeowners associations and are issued without requiring a republican form of government or subjecting all of its citizen-members to the privileges and immunities that apply to all citizens of the US.

If you follow the arguments of the longtime promoter of HOAs, the Community Associations Institute, CAI, you will find that its justification for this state of affairs and private government does not address the US or state constitutions, but the lesser laws of the land, the real estate common laws of servitudes. These opposing views is quite apparent when you follow the arguments by the Frank Askin of the Rutgers Constitutional Law Clinic and CAI in the Twin Rivers New Jersey case on HOA constitutionality questions.

I am not arguing against the right for communities to set their own special ordinances and special taxes for community amenities, but for the guarantees of life, liberty and the pursuit of happiness to all people. If we are to remain true to that contract between the federal and state governments, embodied in their respective constitutions, then the era of the HOA principality must come to a swift and decisive end.

See CAI’s Amicus Brief

PEACE IN THE VALLEY: PROPERTY VALUES VS. CONSTITUTIONAL LAW

I'm coming closer to the realization that the "battle" has been, and will continue to be, centered on the decay and erosion of private property rights versus the communal objective to maintain property values in homeowners associations. The above reflects public policy and the decision that maintaining property values outweighs your private property rights.

The industry lobbyists have succeeded in convincing the public that planned communities are the only way to go and that the undemocratic, corporate form of HOA governance is necessary to achieve that goal. They are right, because HOAs would not be able to get away with their present actions if they came under the municipal government laws! This has been said by others more qualified that I -- McKenzie, Dilger, Barton & Silverman, to name a few. Any genuine democratic governance with its protections of homeowner rights would not allow for arbitrary and capricious decisions of HOA boards or for the circumvention of constitutional protections that trespass on those values that made America great.

"Communal" is the correct term – for the greater glory of the state, or community in our case. And with the equivalent of “state laws” that promote property values over our unalienable rights and freedoms, comes the inclusion of the neighborhood "thought police” enforcers who report back to the communal government about the rotten or nonconforming attitudes of homeowners, who are then subjected to scorn, ridicule and harassment by the HOA government press – the letters from the president and the association newsletters.

I wrote a few months ago about the myth of private property rights in an HOA. They have been emasculated by those nonnegotiable restrictive covenants to become almost meaningless. Today, and upheld many times in the courts under covenants running with the land, written by short-term profit seeking developers, the communal interest rises above your unalienable rights.

The public must take a good look at the meaning of private property rights. When the courts, through their rulings, make it clear that the homeowner just about surrenders most of those cherished rights that permit the classification of “private property”. Prof. Askin, of the Rutgers University Constitutional Law Clinic, in his appeal of the Twin Rivers (NJ) HOA decision, argues against this view that holds common law over constitutional law,

"Twin Rivers must be recognized as a constitutional actor under the state Constitution required to accommodate the rights of its residents/members to exercise the fundamental prerogatives of citizenship in the operation and governance of the community. Twin Rivers homeowners do not waive their constitutional rights by signing contracts containing non-negotiable deed restrictions. This argument [that homeowners voluntarily waived their constitutional rights] ignores the doctrine of 'constitutional conditions', which forbids a constitutional actor such as Twin Rivers from conditioning a right to own property on a waiver of constitutional rights."

There can be peace in the valley. Planned communities with their private “ordinances” and private amenities for “members only” can exist within the framework of special taxing districts. These districts can easily come into existence by reclassifying, in furtherance of legitimate government ends, existing associations and holding them to be municipal entities under the existing state laws. As we proudly proclaim ourselves to be a nation of laws, all communities will now be subject to the same laws of the land and these private ”constitutions” will be eliminated.