HOA Survival Kit

HOA SURVIVAL GUIDELINES UNDER ACCOUNTABILITY LAWS


As more and more state legislatures realize that they cannot continue to protect homeowner associations that deny citizens their fundamental rights and freedoms, and that the grievances repeatedly brought before them are legitimate and well grounded in law, the existing un-American form of HOA government and the way of life promulgated under these authoritarian regimes will cease to exist. The HOA, as with the Anti-Bellum South, will be gone, Gone with the Wind.

State legislatures will impose more and more stringent and necessary laws and regulations on these regimes as has been warranted by the failure of and repeated resistance to self-reform. The HOA will be held accountable under the laws of the state and country, as is required of every other level of government in these United States of America.

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Do Americans prefer an authoritarian form of government?

Comments on CAI's Common Ground, Jan-Feb 2006 article, Quality of Life, relating to CAI's 2005 survey of HOA satisfaction. (See http://pvtgov.blogspot.com/2005/12/analysis-of-2005-cai-hoa-survey.html for a detailed analysis of the survey).

Common Ground
It's enough to make you wonder about all those screaming headlines regarding abusive, out-of-control HOAs. "Having gone to a lot of [association board] meetings where there is some unhappiness with communities," says Howard A. Goldklang, CPA, the current president of the Foundation, "I was a little surprised that there wasn't some negativism" reflected in the survey.

But Jordan thinks association unrest has been deeply exaggerated. "I think there's a lot of great stuff we know instinctively is true, but it's nice to have it backed up," says Jordan, a partner with the law firm of Powers Phillips, in Denver. "The horror stories we hear are the 2 or 3 percent minority. It just happens to be a loud minority." Likewise, Goldklang calls the satisfaction rate the survey's "most significant" finding. "I've always felt this way without a study-that association living is very positive," says Goldklang, who is president of Goldklang, Cavanaugh & Associates, in Fairfax, Virginia, and also a Common Ground contributing editor. "It provides a lot of structure and it provides a lot of areas where it takes concerns away from the homeowners and provides leadership."

Const. Gov.
Here we go again, the majority is allowed to abuse the rights of the minority in violation of all the principles of the American system of government. The private, authoritarian HOA government has no place for the protection of individual rights as mandatory under the Constitution, nor attempts to establish a separation of powers, or checks and balances doctrine to insure against the tyranny of the government, and to provide for due process of the law.

The survey does not ask those questions of a voluntary surrender of rights, if the homeowners do indeed realize that they surrendered these rights, or that they are not subject to the same protections of homeowner rights as all municipal governments are subject.

A violation of the law is a violation of the law, no matter if just a handful of people are abused. That's a fundamental principle of our system of government, and any deviation for a legitimate de jure government interest, not a private government interest, must be justified under judicial scrutiny. HOAs represent an un-American, controlled from the top, form of government where all the residents must conform and obey the rules/laws for the benefit of the state -- the HOA.


Common Ground
Either way, Nelson(1) thinks the Zogby results offer a striking contrast to political schisms at the national level. "If you take the United States right now [and ask people,] 'Do you think we're headed in the right direction right now?,' half the people would say no," Nelson says. "But a lot more people seem to think their associations are working out pretty well right now than think the United States is working out. People are a lot more happy locally than they are nationally."

Const. Gov.
Nelson also argue for the succession of HOAs from local municipal government, because the privatized HOA will replace the services and functions of municipal governments in the future (See Chapter 20, Neighborhood Succession, in this book).

Note 1. Author of Private Neighborhoods and the Transformation of Local Government

California Joint Commission on HOA Ombudsman given the facts

Excerpts from page 8 of the November 17, 2005 Background Paper to the California Joint Commission discussing a CID Ombudsman are well worth repeating:

It is extremely hard for a homeowner to challenge the rules under which they live, if they have been approved by the HOA, and the stakes for every homeowner can be very high.

CID boards of directors have the ability to limit a freedom which no counterpart for nearly any other kind of government authority – the liberty of an individual homeowner to use his own property.

While most people who get involved in political activity at the local level, state or federal level do so as an individual choice—and many decide not to make that choice – participation in an HOA [the governmental body of the CID] is a necessity of ownership in CIDs.

[I]t is clear that a substantial number of CID owners do not fully comprehend how powerful the terms in the CC&Rs, the HOA and its board of directors can be – and how critical it can be to them to be an active member.

My commentary can be found at: CA-Ombudsman

The complete Background paper can be found at CA_background

"After notice and an opportunity to be heard"

Arizona statutes ARS 33-1803 and 33-1247 state that "after notice and an opportunity to be heard" the HOA/condo board may impose monetary penalties. This wording, in itself, is insufficient to pass the Supreme Court's opinion on due process requirements.

In the landmark case, Goldberg v. Kelly, 397 U.S. 254 (1970), the court had to rule on whether or not NYC welfare benefits adjudicated by a NYC agency met the criteria of due process protections. A welfare recipient was entitled, under the NY statutes, to a "fair hearing", meaning an opportunity to appear personally before an independent tribunal, which was equivalent to Arizona's Off. of Admin. Hearings, offer oral evidence, confront and cross-examine witnesses before judgment on his welfare status.

To provide a lesser protection of due process rights, the government must show an overwhelming justification of its interests. Here, with HOAs, we never get an answer to the question as to what the state's overwhelming interest in allowing a private organization to deprive people of their property interests, as well as money. Here, the government is permitting private organizations to adhere to a lower standard than what the Constitution imposes on the government itself.

This is the basis of charges of the unequal protection of the laws, of governmental state actions involving the active support, cooperation with and coercion to accept HOAs; of the entwinement of the government in private affairs; and the symbiotic relationship where both the government and private entity are involved in mutually supportive actions. State actions subject the private organization to the prohibitions of the 14th Amendment. All are Supreme Court test for state action -- Brentwood Academy v. Tennessee School Athletic Assn, 531 U.S. 228 (2001).

The false and misleading argument often heard that the CC&Rs is a private contract and therefore people can hide behind the contract to do whatever they please. We all know that this argument is bogus, because there are so many instances where the government has not only the right but obligation not to enforce contracts that violate the law or are contrary to the best interests of the public. Yet, proponents of the status quo don't seem to have a problem with this, and demand their "sacrosanct" status.

I repeat, Arizona fails to provide proper due process protections for allegations of violations of HOA governing documents that permit the HOA to deprive the homeowner of his property rights that also include monetary penalties.