The Rise of the HOA Regime and the end of Democracy in America: the move to reduce member voting rights in HOAs
Developments concerning HOA reforms in three state legislatures portend an end to the 222 year American Experiment in democratic self-rule. The California Law Review Commission had recommended a total rewrite of California’s HOA (CID) act with a blank “Member Bill of Rights.” The bill was withdrawn not because of the absence of this empty chapter, but because the special interests had some “technical concerns.” The Commonwealth of Virginia Senate has before it a bill, SB1489, to remove the voting rights of members, rights specified in the binding agreement of the declarations. The Arizona House has before it a bill, HB2434, that will impose a uniform quorum requirement that will permit only 20% of those voting, not of the total membership, to amendment the declaration. What happened to CAI’s repeated cries that the “will of the majority” is the democratic way?
And behind each one of these bills is the hand of the national lobbying organization, Community Associations Institute (CAI), a tax exempt business trade organization whose objective is to support its members, the vendors of services to HOAs. It does not have, nor is allowed to have a business trade group, homeowner associations as members! Yet it dares to declare that it represents the homeowners as well as HOAs before governmental bodies. The majority of its members and those on the ruling Board of Trustees are attorneys and management firms. Attorneys do not make money from happy, harmonious, and vibrant communities. Management firms do not make money from educated, knowledgeable and competent boards of directors.
Yet, state legislatures do not see any problems with this harsh reality. In fact, Florida and Virginia have chosen CAI to educate HOA property managers as part of their certification requirements. CAI lawyers hold seminars on how to live under unjust pro-HOA laws and CC&Rs that deny the people their rights and freedoms, and CAI trained management firms run the HOA as the de facto board of directors. CAI has legislative action committees (LAC) in almost every one of its state chapters to influence legislation, as indicated above. These LACs will argue that HOAs are a business; that they are private contractual arrangements; that they have been freely agreed to with full knowledge by the homebuyers; and yet demand and seek the same privileges and immunities of public government without the restrictions on and penalties for violations to which public government is held. The particular argument that is made depends on the intent of the CAI legislation at hand.
Those who have been involved in homeowner rights reforms over the years well understand that CAI has failed to attain its goals to educate HOA boards over its 36 years of existence. It was formed to make the planned community legal scheme, with its mandatory membership and compulsory dues, work without serious problems. However, in 1992 it abandoned this mission for one of self-preservation and became a business trade organization for the income benefit of its membership. (See Part II, The Foundations of Homeowners Associations and the New America). CAI has opposed the extension of constitutional protections for members (see its amicus brief to the NJ appellate court in the Twin Rivers free speech case of 2007).
This current movement against the rights of members to vote stands out as a stark about-face to CAI’s repeated argument that HOAs are democratic because the members can vote. Has CAI suddenly forsaken its one and only claim that HOAs are democratic because the declarations contain a right to vote covenant? Perhaps CAI has never really believed in local democracy and HOAs as the voice of the people. This current movement reflects its stated Public Policy position that supports the imposition of top-down uniform laws, pure government regulation, regardless of individual community preferences and the will of the membership. As I suggest, in The Foundations of Homeowners Associations, CAI sees itself as the national super-agency regulating planned communities as a parallel, undemocratic shadow government with its own laws not subject to the Constitution, since the HOAs are intentionally created as equitable servitudes under private contracts.
I explore this failure of the American Experiment and the rise of independent HOA principalities in Establishing the New America of independent HOA principalities (see New America). This current movement by CAI to deny member voting rights, to allow a minority to control the majority, is just another effort to establish authoritarian regimes, and reminds me of statements made by WWII fascist dictator, Benito Mussolini,
Fascism combats the whole complex system of democratic ideology, and repudiates it, whether in its theoretical premises or in its practical application. Fascism denies that the majority, by the simple fact that it is a majority, can direct human society; it denies that numbers alone can govern by means of a periodical consultation . . . which can never be . . . universal suffrage…. (Benito Mussolini: What is Fascism, 1932).
Thus understood, Fascism is totalitarian, and the Fascist State . . . interprets, develops, and potentiates the whole life of a people. (Benito Mussolini, 1935, The Doctrine of Fascism, Firenze: Vallecchi Editore, p.14, http://www.publiceye.org/ fascist/corporatism.html).
The continued spread of independent HOAs promoted by the CAI special interest trade group, and accepted by legislators in every state, is relegating the America of our Founding Fathers to a myth. There are other existing legal means to attain a manicured, landscaped America that subjects a taxing district alternative to the supreme laws of the land. Inquiries to my web sites from interested persons in other countries, including third-world countries, have been increasing. The silence on the part state agencies responsible for consumer protection, state attorney generals, and from the legislators themselves, only serves to support the legitimacy of the homeowner rights arguments. One can ask: If all is on the up-and-up with the HOA legal scheme, then why are government entities afraid to tell the public what is going on by publishing advisories, warnings and public information pamphlets? Where is the “transparency to the public”?
Americans have a choice to make. Legislators have a choice to make. Which America lies in our future? Shall the America of the people, by the people and for the people perish from this earth, replaced by the top-down imposed separate and unequal laws of the fascist leaning HOA? I hope not!