What Americans believe, but don't understand about Homeowner Associations

July 19, 2004

By George K. Staropoli (View author info)
Copyright Citizens for Constituitonal Local Government 2004

The average American believes that

* he lives in a democracy,
* he has certain Constitutional rights and enjoys the same rights as all other Americans,
* the government is here to serve the people and to protect their rights,
and these rights cannot be taken away from him without his express consent,
* the privacy of his home is protected,
* the government will enforce the laws against any violator of the laws,
* contracts require his signature and informed consent,
* when he entered into an HOA controlled community that he was primarily buying a home with external amenities and maintenance requirements,
* the homeowners association is answerable to the Constitution and to state laws,
and will be held to the same standards of justice, of democractic and fair election procedures, of access to HOA records and to meetings of the governing board as found with public agencies,
* the HOA board has a fiduciary duty to protect his rights foremost and to abide by the laws of the land,
* the HOA attorney works for the benefit of the members of the HOA.


This is what the average American believes because no one has told him any differently when he bought his home in an HOA controlled planned community. Not the state or city, not the seller, not the real estate agent, not the developer, not the news media, not the Attorney General, not his attorney, not the real estate department, nor any other government agency.


The average American does not understand that

* he entered into a private agreement, the CC&Rs contract, that binds him to obedience to the restrictive covenants,
* he is viewed as having willingly agreed to be bound by this contract and to all the consequences and future impacts on his lifestyle and finances relating to this contract resulting from amendments to the CC&Rs,
* he has surrendered his rights and does not not retain them, even though he still lives in America,
* he no longer is protected by expost facto laws, and therefore, there is no need for grandfathering clauses to protect him,
* the HOA can take his property without compensation,
* the HOA can obligate him financially without his consent,
* he lives at the suffrage of the board,
* his signature is not necessary to be bound to these covenants nor does he have to view or read them because, upon notification that there are restrictive covenants, just filing them with the county clerk's office legally binds him,
* the courts continue to make rulings with consequences far beyond what he could have ever imagined when he bought his home,
* and that these rulings appear puzzling and conflicting,
* he has granted broad powers to the HOA board without any protections,
* the HOA is not regulated by the state nor has it approved the governing documents nor sets any standards or "bill of rights" requirements to protect him,
* the state will not interfere with the broad powers and goals of the HOA even if the HOA acts in an unjust or unfair manner, or denies him rights that he had under public governance,
* he lives in a communal society that requires the participation of a sufficient number of neighbors to effect any changes or to right any wrongs, a level set above the norms for our society in general,
* the courts will rule in favor of the greater benefit to the community, and that the maintenance of property values is given a primacy above the protection of his rights.

No, the average Amercan doesn't understand these things, nor the legislators who make these laws as a result of special interest lobbying, nor the media either. But the special interest attorneys understand, and have for a very long time.