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HOAs: Exchanging individual property rights for property values

By       Message George Staropoli     Permalink
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The implicit exchange of individual property rights for not even promises or guarantees of maintaining property values has been accepted by most homeowners in homeowners associations. 

Many people accept the terms and conditions of the HOA governing documents, as many accept the rigors of military life.  They do not mind being told what to do, when to do it, and how to do it.  Others adhere to the belief, even after 44 years of contrary evidence, that true democratic reforms will still take place. They are faced with the harsh reality that their strong beliefs are not real, and that, in fact, their government doesn’t intend to make them a reality.  And that is indeed a very harsh pill to swallow.  

Others do not accept this privatization of government — this delegation of government powers.  A privatization defended by those sworn to uphold the Constitution.  A privatization by virtue of a questionable private contractual agreement that is a devise by real estate special interests to bypass constitutional government with its protections of the rights and freedoms of the people.  This article takes just one look into why these Americans feel as they do. 

The Founding Fathers realized the fallacy of the “will of the people” as the guiding principle of a democracy and established controls on our government making government responsible to the people.  That is why we have checks and balances, and a separation of powers, and a bill of rights.   The Preamble to the US Bill of Rights reads,  

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution. 

None of these protections for the people against the power of government is present in HOA constitutions, those developer written CC&Rs.  While speaking of the will of the local community, CAI, the leading national lobbying organization, is promoting top-down state laws controlling and regulating how these so-called democratic local communities are to function.  Your CC&RS and state laws, especially the UCIOA model, are derived from the seminal publication on the mass marketing, legal status and defining structure of planned communities and HOAs — the 1964 Urban Land Institute’s Holmes Association Handbook, TB #50.  It establishes not a democracy in action, but a private organization, secure from the constitutional restrictions imposed on public government, and imposes by means of state laws an authoritarian governance over what was once a free and independent people under our Constitution.   

This subversion of democratic principles, this establishment of a New America, has come about  as a result of the courts and legislatures ignoring, reinterpreting and reinventing our constitution.  As an example, in a free speech complaint against a NJ HOA, the NJ Supreme Court wrote, in an attempt to reassure the American people (emphasis added), 

Finally, residents are protected under traditional principles of property law . . . One owning a tract of land may convey a portion of it, and by appropriate covenant or agreement may lawfully restrict the use of the part conveyed for the benefit of the unsold portion, providing that the nature of the restricted use is not contrary to principles of public policy. . . . that “[r]estrictions in a master deed” should be enforced “unless those provisions ‘are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right’ 

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Our holding does not suggest, however, that residents of a homeowners’ association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights. 

 (Committee for a Better Twin Rivers v. Twin Rivers, 929 A.2d 1060; July 2007 opinion that the HOA regulations “do not violate the New Jersey constitutional guarantees of free expression” ). 

And homeowners are offered even less assurance against the loss of their fundamental rights and freedoms by the common law authority for equitable servitudes (covenants) that governs homeowners associations, The Restatement of Laws (Third) Property, Servitudes.  Comment h of sec. 3.1, relating to the validity of covenants, states (emphasis added), 

The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law.”  

Only the people can stop this authoritarian, regimented, communal form of living under HOA governments.  Wake up America and see the Emperor’s New Clothes for what they really are – a calculated scheme for a New America.
  

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George K. Staropoli is president and founder of Citizens for Constiutional Local Government, Inc, and author of "Establishing the New America of independent HOA principalities." He has appeared before and has made presentations to several state (more...)
 

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