The Effort To Create Constitutional HOAs

An effort to re-charter HOAs across the wonderful nation has begun and I am wondering what others think about it. I am its founder and seek feedback.

FOR DETAILS: http://recharterhoas.wordpress.com/introduction
RESOURCES: http://recharterhoas.wordpress.com/resources
BENEFITS: http://recharterhoas.wordpress.com/after-rechartering

BRIEF: It is believed that HOAs operate under legal authority which cannot supersede moral authority granted by the U.S. Constitution as civil rights. Yet through CC&Rs HOAs assume authority to control and manipulate residents’ moral authority over private property. Without going to court on a case-by-case basis this re-chartering effort simply redefines HOA authority within their charters, ensuring they understand and follow their constitutional limits. These limits already exist, of course, but have been obfuscated by laws that have come since then. This re-chartering effort clarifies their authority and illuminates limits on government interference with sovereign citizens’ rights.

BENEFITS OF A RE-CHARTERED HOA
* Basic HOA responsibilities do not change
* US Constitutional limits are explicitly defined
* HOA must encourage and convince rather than use force
* Officers will care more about people than property
* A firm handshake between friends is an agreement
* Revenue collected is available for the defense of civil rights

If a person signs a paper placing themselves into slavery there is no question that the agreement must be considered illegal, and the receiver would have no right to gain or benefit from such an agreement or the severance thereof. Since it is so clear that a person cannot sign away their God-given right of liberty how can they be allowed to sign away their rights to private property as in an HOA agreement? What about the freedom of speech, can that be signed away? Which are rights that can be signed away and which are given by God and cannot be signed away?

Your comments, questions and concerns are of significant interest so please post them.

certainly, you can give up any of your freedoms. the wonderful thing about our country is, you have the right to do so.

You cannot be bought/sold against your will. You can, however, agree to serve another person or institution for a period of time, for whatever recompense you desire: money, fame, food, or just because you want to, for nothing more than the mental good vibrations you get from doing it. Are you saying that people should not be allowed to join the priesthood, or become a nun, a monk, or dedicate themselves to helping others, or living a spiritual life? If someone wants to give up all material things, and live simply, should we forbid them?

People can, and do, take vows of silence. They voluntarily give up their rights to speak. Nothing unconstitutional about that. IN fact, the constitution simply exists to prevent the GOVERNMENT from doing certain things. The Government cannot take away your rights to speech (in general, exemptions do apply), however, you can give it up, sell it, trade it, etc., all you want.

To me, the easiest way to solve the HOA "problem" is to simply not enter into a BUSINESS CONTRACT with an HOA unless you agree to the terms and conditions. I received a credit card offer once, I didn't like the company, I didn't like their late fee policy, I didn't care for how they billed. So, rather than rant and rave and ask the government to make the credit card company be nicer, better, and institute more laws so I wouldn't have to do something I didn't want to, I tore their offer up, and tossed it in the trash. I don't use their credit card. I read the contract, I didn't agree with it, so I didn't sign up with them.

If people would only do something just as simple when they buy a home, when they buy (likely) the most expensive decision they are ever going to make in their lives (aside, perhaps from getting married), everyone would be a lot happier. People will spend $50,000 to $500,000 (or more) on a home purchase, and be too damn lazy to even bother to read the contract they are agreeing to.

The world doesn't need better HOA's.. .the world needs smarter people. Because you can strip an HOA of all power, all responsibility, all everything, and stupid people will still do stupid things, and then go blame others for it, and as others to help fix their mistakes. You can't fix stupid.

Jason,

Welcome to the forum.

First, lets define Liberty. Per USLegal.com, liberty is defined as "the right to exercise the rights enumerated by the constitution or available or under natural law."

Question, have you ever served in the military or looked at a contract to serve in the military?

You have literally signed away your right to liberty.
The receiver, those who are back home, do gain benefit and, in my opinion, should gain benefit of such an agreement.

To my knowledge, no court has ruled a military contract illegal.

Therefore, I do believe that your statement isn't a true and accurate statement.


Actually, I do think I just pointed out one area that allows you to sign away your liberty.
Therefore, if one can contractually sign away liberty, one would likely also be able to sign away rights to private property. Actually, I think that signing away your right to private property is called a selling your property.

Perhaps you could better define what rights to private property you are discussing?


We actually had a discussion about this earlier. See this thread (click link)


I believe others have given their opinions on this.

What rights do you believe are given by God and can't be signed away?

> BENEFITS OF A RE-CHARTERED HOA

Totally uninterested. (Me, that is).

Challenges to the status quo seem as American to me as "mom, apple pie and Chevrolet." Given the information posted, I see no harm in this process. Just the fact that HOAs know that people will constantly challenge how they are governed should, and IMO does, help Boards stay focused on representing the true interests of the majority, again IMO. Just as activist shareholders have brought positive changes to corporate governance, a good chance of making helpful contributions to HOA governance exists IMO with steps such as what Jason is attempting.

This ain't Egypt, so have at it and keep us posted. Best wishes!

Jon,

I am concerned that you post people's full names such as what you just did with Jason. I believe you might have done this with Mike as well regarding his court cases? I have not been here long enough to know if you are a moderator or not? But rule 3 states:

"(3) No Mention of Community/Company/Person Names: In order to fairly enforce (2) and prevent liability, we do not allow the mentioning of any community name, company name or product. Please also do not post the full name of any person."

Does this rule apply to all? I know when I registered here I provided my accurate information. When people start posting others' names I think it not only discourages participation, but encourages false registrations.

Further, I believe you have stated you are/was your Board president. I question when someone does not appear to follow simple rules, what else do they justify themselves doing?

If I am incorrect about this, I will apologize after receiving an explanation. Thank you.

Frank

I believe once someone posts a link or whatever that does divulge their "real" name, then they are fair play to be named. They did it themselves.

Jason,

I've taken a look at your introduction page. From what I see, your whole premise for HOAs is on one statement:

HOAs operate under legal authority which cannot supersede moral authority

Actually, I believe that we will have to agree to disagree. Our Nation was founded on a nation of laws. Yes, it's typical for morality to be part of laws. However, as has always been the source of most conflict within the world, who is to determine what is considered moral? You definition of morality may not be my definition of morality. Therefore, to further this discussion, lets see if we can agree on the definition of each term so we know that we are comparing apples to apples.

Per Merriam-Webster, legal is "conforming to or permitted by law or established rules"

Per Merriam-Webster, moral is "of or relating to principles of right and wrong in behavior"

Per Merriam-Webster, ethical is "conforming to accepted standards of conduct"

If we go with these definitions we still run into the issue of who determines what is moral, what is ethical and what is legal? As I understand it, this is decided by the majority at the time. It is not and, honestly, can not be decided any other way. This is because everyone had a different upbringing, different experiences, cultural differences and it has been my experience that you simply can't turn those off and on as needed.

Therefore, with all of stuff called life out there, it really boils down to this:
an Association should do what is ethical but must do what is legal.

The legality an Association must comply with is based on what is written within the contract (the CC&Rs) and additional governing documents along with applicable Federal, State and local laws.

I also noticed, per your blog, that you give the general guidelines of a "re-chartered HOA".
These are:

1) A formal definition of the difference between legal and moral authority and the source of each.

I don't think that this is needed. As I said earlier, an Association should do what is ethical but must do what is legal. Therefore, you would need to get into far more specifics than that simple statement. I would also ask again, who determines what is moral and what isn't.

For example:

One might say that the story of the tower of Babel in the old testament is Gods way of saying we should be culturally separate. Please understand, I DO NOT support such an interpretation but some might. Would this mean that the moral authority would support segregation even though such action is illegal? Yes, I know that this is an extreme example. However, it demonstrates my point rather well.

2) An acknowledgment that the HOA receives only legal authority from residents thus it has no authority to limit or coerce residents since such actions require moral authority.

Oh, so you are advocating that Associations no longer follow the laws of the United States. That is what your statement says to me. We should ignore the Constitution with it's bill of rights. The Civil Liberties Act, the Housing for Older Persons Act, the fair housing laws? Are you advocating that OTARD (over the air receiving devices) be ignored? Bye bye satellite dishes.

Honestly, I don't think you are advocating that. In fact, since you live in VA, you know that most of VA law defers back to the CC&Rs - thereby making that contract the main legal authority for Associations. Therefore, I do believe that this point has already been achieved.

3) Recognition that its primary obligation is a moral one which is to protect and defend residents and their sovereign rights in all of its duties and that to fulfill this responsibility it may use lawfully collected revenue.

Excuse me. The primary obligation of an Association is to maintain the common areas. When Associations get into protecting residents (who by the way might only be renters and not members of the Association) you run the risk of having the same issues that happened in FL. Police and Military are to protect and defend.

No, it's better that the Association should maintain the common area and pay the electric bill. Often, because individuals don't want to become involved but still want things to happen will use the Association as an enforcement arm to the contract they agreed to live by. However, that authority could be removed if enough members thought it should.

4) Finally, its charter should record that because of its primary obligation it is required to get involved, according to its ability, to defend residents in cases where other government powers may be seizing citizens’ rights.

Of course, you now have to define what a citizen right is and which ones will be defended.

Being politically active will require the Association from being a non-profit corporation and the tax benefits that go with it. Having given up that benefit, you will have to pay taxes on all Assessments. I suppose you are willing to pay higher assessments to have this happen. Well, you must be willing because legal costs of defending others will likely be expensive. Exactly how many vacations are you willing to forfeit so the Association could defend the person on the next block?

Jason,

You talk well in generalities. However, the devil is in the details. As I often say on this site, trust but verify. As I pointed out, general terms like morality can mean many different things to different people. Of course, I think you know this and have purposely chosen general terms so more people will support you without verifying what it is you really want to do. I honestly haven't figured that out yet. However, I'm pretty sure I don't really want to support it the way it's currently described.

That said, I do applaud your efforts of becoming involved and wanting to change your governing documents. I wish you luck in your endeavor.

Tim

Jason,

So what do you think? Have you ever heard such obtuse, sophistic crap in your life? (see above)

It is almost as if you are talking to the very group of "service providers" to associations that profit from the

complete lack of oversight and consumer protections to homeowners in HOAs.

HOAs routinely violate their own governing documents, the general laws of the state, and fundemental prinicples of democracy.

And that is when they are being good.

Out right theft and embezzelment is rampant to the tune of millions of dollars.

The only recourse homeowners have is a very expensive and time consuming foreay in the civil courts.

Guess who wins (even when they lose)?

Why the lawyers who specialize in HOA law!

What a ridiculous scam it all is, easily solved by laws and ENFORCEMENT of the laws.

Which at the present time, does not exist.

It is almost like buying a home in a perpetual carnival....where the barkers are always egging you on to play their rigged games!

I did buy a home in an HOA.

And the current board has changed the CCRs without a vote 11 times now.

They invented the power to fine by fraudulently manipulating the ballot, and thankfully (unbelievably) recording the whole thingin their minutes.

Are you seriously suggesting that "I" leave because the BOD has violated the law and governing documents?

Yes I have written proof...quite a bit of it...and don't count on me having "lost" just yet.

But here is a sample of THEIR own recorded minutes, taken verbatum from showing the fraudulent manipulation of ballots when they held a yes/no "vote" of homeowners to empower themselves with the ability to fine.

July 1, 2002 Board of Directors Meeting:

Bob Brann: I move we add onto the ballot that a no response is a vote for the proposal.
John Garabedian: I second it.
Dave Jablon: And add a date to respond by.
Jack Adams: Why isn’t a “no vote” a NO?
Gary Street: We’re forcing them to vote. I make a motion to end discussion. All in favor?
5 in favor 1 opposed

I mean....you can't make this stuff up!

I should be able to call the AG's office and put these clowns in jail, with law enforcement doing all the work (my tax dollars in other words)!

But instead I have to spend years and my own dollars to get a judge to do something about it.

What a joke!

Jason, in a perfect world your ideas might work but each year that I serve on the board I find that the rules are necessary and they need to be strictly and fairly enforced or all owners and their property values suffer. Unfortunately, it isn't a perfect world .. so dream on.

Right!

And this oversight is to come from the membership being active in their Association.

In general, the CC&Rs (deed restrictions) are considered a civil contract between all owners of the properties that have the same deed restrictions attached. Associations are formed to maintain and/or operate the common area and fulfill any services (trash/recycling, snow removal, street lighting, etc.) required by the CC&Rs. Per the CC&Rs, the Association is also given the authority (in addition to the owners) to enforce the covenants, restrictions and conditions of the deed restrictions (contract). Typically, Associations are incorporated (usually as a nonprofit) as this provides them certain advantages. As a corporation they must comply with corporate laws in addition to any HOA/COA laws.

Sure the State corporation commission may fine for not filing the annual report on time. The IRS will certainly go after the Association for failing to file taxes. The District Attorney will prosecute if criminal laws are broken (example embezzlement). However if the Association doesn't comply with the Bylaws or a civil law, it's up to the membership to hold the Board accountable. The easiest way would be to recall the board or not reelect them to the Board. The more expensive option is to go through the court system.

This is why it's imperative that the members remain active in the development and actually take an interest in how the Association is governed. If apathy sets in (and, unfortunately it does), it becomes that much more difficult to change things when issues are discovered.

No, I am not suggesting you leave. I suggested that people do their homework prior to buying, and to not play the game if they don't want to. Don't buy in an HOA if you don't like HOA's. Or, don't like that one HOA.

However, you did, and it appears, you have a poor one. Now, the game is different. You entered a contract with a business, and you believe they are not abiding the rules. Now, you have to fight, and yes, in general, in a contract dispute between two people, the State is not likely to be involved (at least, for a long time). If you dispute a credit card bill, phone charge, etc., most DA's and AG's are going to laugh you out of the office if you try to invoke them. That's life, the big guns of the state tend to stay out, for better or worse, and let private citizens (and corporations) tend to their own battles.

Now your options are more challenging: get others behind you to throw out the board, get others and replace the board at an election, challenge the board in court, etc..

The EASY option is to not buy into an HOA. The harder option is to do diligence, read the fine print, read the rules and regs, do some research, and only buy into a well run HOA with solid rules you can abide by. The hardest option is when you are in an HOA, and have to fight from the inside. That option requires a lot of time, effort, and usually, money.

That's why I recommend people take the easy option.

Jon,

Sorry I have offended you. I would ask that you read my posts though. I have volunteered more than anyone in this community, and have attended the vast majority of Board meetings. I was elected to the Board by the members, only the Developers were able to keep me off with their 10 votes per unsold lot. This was our last election that took place this past November. I was also elected by a group of members in the early years to represent our concerns to these same Developers. I will be elected the day the Developers relinquish control. I will come back and tell you about it I will accept your apology for accusing me of being someone I am not.

Jon, I pointed out that this is KS where things are not as tightly controlled as in NY. We have not always lived here, several out of state corporate transfers back in the day. From when I was young, graduating from Marine Corps Officer Candidate School, through my life today I have demonstrated an ability to rationally look at the facts, determine which ones are relevant by working with others and asking questions and making solid decisions. I have been successful on a personal level (one wife, 32 years, still in love), a civil level (no record other that 5 tickets for minor speeding infractions), professional level etc. I am sorry that it offends you that I KNOW I will move into a Board position in my neighborhood in KS without little to zero difficulty. Again, I have forced more changes on our Board than I will relate here. You don't know me, so you have no idea whether I speak the truth or not. I have never stated or implied that I am capable of doing this any where but here. I am not that ignorant. I know nothing of the rules/laws of any other location than here.

Jon, you accused me of something that I am not, so please allow me to do the same. You seem like a bully to me, in fact one of the type of Board members that people like Mike get in a fit over. Can we leave it at that and just debate the merits of different positions here? If you look at other threads, I think there are several folks who might share a view different than yours-or mine. My experience has been that strong personalities discourage participation, especially in HOAs. But then again, I have next to zero experience in your opinion.

Not making this personal but:

Sitting in the cheap seats and telling everyone how the game is played.

This expression has many applications.

I'm sure Jason has the most honorable of intentions. But I stopped reading at "moral authority."

I will be the authority...now back to naked......LOL

A MOST INTERESTING COMMENT:

The people around us are the people God gave us. We cannot change that. So it is up to us to lead them in the way that they should go. If you wish to teach wisdom, be wise. If you wish to teach honor, be honorable. If you wish to teach love, love. If you wish to teach freedom, remove chains from their lives to they can experience it. Serve others first by living as you want others to live. Give and when others find you in need they will remember your generosity and give to you. God will make sure of it. The people around you will be better if you first show what “better” looks like.

Wow! You caught that did ya? It’s kind of a MAIN THEME within the entire site. Phew! That was close. The fundamental issue is that HOAs tell residents how they MUST act rather than showing them how to act. By taking away the misunderstanding that they have such authority it returns them to defending the rights of citizens. This is the foundation of the constitution – protecting and defending our rights of life, liberty and property. If you know history you also know that the founders did not use the word property they used the words “pursuit of happiness” because of the slavery issue. They knew the constitution would not have been ratified had “property” been included.

Many pages speak about it. The idea is a foundational principle. Cases in point:
http://recharterhoas.wordpress.com/responsibilities/legal-defense/
http://recharterhoas.wordpress.com/responsibilities/moral-obligations/
http://recharterhoas.wordpress.com/responsibilities/defending-home-owners/
http://recharterhoas.wordpress.com/responsibilities/enhancing-personal-freedoms/

EXERPT: “A citizen’s first obligation in life is a moral one. It is to protect and defend the rights of others as he would himself. Because of this obligation the authority a person extends to organizations such as the HOA carries with it this same obligation. Therefore, the highest moral imperative for HOAs is to defend residents against those acting to take away rights and freedoms – especially against the powers of other levels of government (IE: the EPA, DHS, NSA, etc.).”

Agreed! "You cannot force morality with laws." This is why HOAs must be re-chartered. They attempt to create a civil society using fines and force rather than by being civil. If they are re-chartered without the authority to fine and punish residents; if they are tasked to assist residents rather than to control them, then they will become an example of leadership rather than overlords.

Jason,

You seem to have missed answering this one question.
Can you provide specifics on what procedures you would use?

That is an honest question and I address it online at:

http://recharterhoas.wordpress.com/after-rechartering/
http://recharterhoas.wordpress.com/2013/06/23/offer-to-pay/
http://recharterhoas.wordpress.com/2013/06/18/usurped-authority/

Still, let me clarify here. A person has every right to tell their neighbor their house looks like a dump but that person has no right to demand they fix it. No matter how many neighbors don’t like it they don’t have the moral authority to take away the homeowner’s rights. So what do they do? Simple! If they act neighborly and respectfully they can speak with the owner and offer to defray part of the cost of needed repairs, thus encouraging them. It is the homeowner’s right to refuse but the fact that someone has pointed out a need humbly and even offered to help will often encourage them to make the repairs, even if a bit late.

HOA officers can offer donations to church and community youth groups to have them go around washing homes and fences as a fund-raiser. In many cases the youth groups can go house to house to fund raise while HOA officers encourage them by making it a scheduled community fund-raising activity (fund-raising for the youth groups, not for the HOA).

If the HOA is seen as a positive force in the community it will be much easier for them to ask for and receive donations for special projects. They will be seen as a go-to group of people who honestly care about the people.

As for “convincing members to be in compliance”… The typical assumption is that the HOA has the right to force residents to comply but this assumption is wrong. The HOA is simply a bunch of neighbors who have no such authority over another neighbor regardless of their charter. Only a few core architectural standards regarding the foundations of a home can be rationalized using a moral authority argument; all other standards are simply recommendations. If for instance, a neighbor places a birdbath in the front yard, on their own property but too close for comfort to neighboring drive ways then the HOA has several options. They can politely speak with the homeowner and inform them of the situation then they can ask if they can move it, offer to have it moved, or even offer to landscape the backyard to have it moved there. Alternatively, the driveway of the home with limited driveway space can be modified. Ultimately, however, it is the right of the homeowner to reject moving the birdbath. If this is the case the neighbor with the driveway issue must accept it as a fact. With the freedom to be kind and a good neighbor comes the freedom to be a bad neighbor. And yes, there will be poor neighbors. The issue then is about building standards. Builders should not place people in such tight spaces which make accessing the street from the driveway without driving on the grass a problem. In truth the problem was caused because of spacing, street access and planning. That is what should change.

Actually, I did look through those and I did not see any specifics.
This is why I asked the question.

BTW: no need to keep repeating your blog site. Once is enough for people to know the address.


So your saying that the covenants (i.e. contract) should be ignored?

OR are you simply saying that the enforcement authority an HOA has should be removed (as this would require neighbors to take neighbors to court)?

Are you willing to pay higher assessments to help pay for your neighbors repairs?

Just as you don't believe that someone should be able to force you to make repairs, I believe that no-one should require you to pay for someones repairs through higher assessments, I believe that this should be your choice and you should have the option to offer to help or not. Therefore, If I were in your position, I would simply lobby to remove any covenant enforcement option from the Association.

Am I correct that you believe this concept should only be about enforcement issues?
OR
Do you think it should also apply to members paying their fair share in assessments?

That's the thing. I don't believe rechartering would ever work or be effective.

The example I used before regarding my "HOA" is a perfect example.

The Articles of Incorporation stated that they were created to enforce the C&Rs for a certain area. Plain and simple. My property, as well as about 800 other properties, existed outside of that geographical region. Did that stop them? No. They ignored that fact and insisted they were the HOA for all surrounding properties. They even rewrote some of their articles to allow non-residents be board members (which of course was initiated by non-residents already serving on the board to begin with - they broke a rule to rewrite the rules in their favor).

How about the C&Rs they insisted they enforced? There was a provision that granted a higher authority to a local philanthropic association. If they wanted to make a change they had to go through that organization first. They didn't.

The By-Laws outlined a lot of the operations. Not only did the BoD rewrite them, they violated a lot of the provisions they rewrote to accomplish their goals.

It would make no difference if their charter was rewritten - someone would come along who would either have no problem breaking the rules or have no clue that they are breaking the rules, and as someone stated before that oversight comes from the membership, I think in certain circumstances yes but the nature of HOAs requires greater protections for the property owner when a conflict cannot be resolved in-house. I could have a dispute with a HOA. I could be right 100% of the way but if the HOA refuses to acknowledge that and I would have to fight it, I would have to shell out thousands of dollars while the association could tap the wallets of my neighbors. Not exactly a fair fight. The HOA I mentioned above, when faced with a lawsuit from a homeowner, attempted to make it a war of attrition filing motion after motion, delaying court-ordered requests, and using every tactic in the book to waste the plaintiff's money hoping he would run out and it would return to business as usual.