HOAs: Unrecognized De Facto Local Political Governments

This is an important question that, like many other questions of substance concerning private governments,, continues to escape the serious attention it deserves. In my previous Blogcritics article, "Who Lives in Homeowners Associations," I showed that 20% of the population currently lives under these private local governments, and that percentage continues to increase. This question must be addressed and answered in the positive: Yes, they are unconstitutional local governments under private, contractual constitutions,(CC&Rs), not owing allegiance to the US Constitution, or any state constitution.

This is an involved and complicated issue, made so by the arguments of the special interests, in particular, the national lobbying trade group for homeowners associations, Community Associations Institute (CAI). To put the HOA legal scheme in proper perspective, devoid of CAI and developer propaganda, we need to go back to the very beginnings of the current incarnation of the legal concept of a Utopian community. Please understand the difference between a subdivision's real estate "package," the amenities, landscaping, rules, etc. from the entity governing the residents, which is the board of directors as the personification of association.

In the beginning, that's 1964, the FHA went along with real estate interests and funded The Homes Association Handbook, which, as I have written in Part I of The Foundations of Homeowners Associations and the New America, was the bible for the mass merchandising for "the emergence and acceptance of a quiet innovation in housing" (taken from a historical recounting, Community Associations, the printing of which was funded by both CAI and ULI).

The Handbook had something for everyone who would be involved in making this incarnation work as a widely accepted mode of housing: the builder, the local municipality, the mortgage companies, and even the consumer/homebuyer, to whom it promoted "carefree living," "affordable housing," and "maintaining property values," among other benefits. No negatives were given.and no mention, in this 433-page Handbook, of creating a governing body in accordance with public government statutes (see your state's municipality laws on incorporated towns or even on home rule). No mention either, of the requirement to be a public entity and therefore to be subject to the Constitution, nor that the Fourteenth Amendment applied to the HOA. The only hint at providing for a democratic form of government came from the promoter's concern for the legal justification for the HOA to have authority over the private property interests of the homeowners and to impose compulsory assessments: allowing the owners to vote.

Article Author: HOAGOV

George Staropoli has been active as a homeowners rights advocate since April 2000. He has appeared before several state committees on HOA reform matters, including Florida, Nevada and Arizona. His opinions and views have appeared in the national …

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