CAI: THE UNWISE EXTENSION OF CONSTITUTIONAL RIGHTS IN HOAS

CAI has adopted its main thrust to defend the legalities of homeowners associations with arguments based on statutory and contractual laws, and  a view that using a constitutional standard of judicial review of HOA operations would constitute "the promotion of inefficient and costly judicial review into the minutiae of community association operations"(1).   In other words, contractual and state statutes must prevail over and replace the US Constitution as the supreme law of the land.

In Arizona we saw CAI use this argument that justice would be too costly because the 95% good associations would still result in a such a flood of complaints to the courts that it would drive up the costs to administer justice. The HOA private government is independent of the US Constitution.

CAI goes on to say that the business judgment rule is sufficient for the judicial review of HOA operations that deny due process and the equal protection of the laws. This argument from CAI seems to ignore the basis of the appeal. The issues for review by the appeals Court include 1) the fundamental rights guaranteed by the constitution must be upheld; 2) free speech and the display of political signs; 3) waiving constitutional rights under non-negotiable contracts; 3) free speech violations relating to HOA prohibitions from using its newsletter; 4) unconstitutional voting system in use by the HOA; and 5) the disenfranchisement of homeowners as a result of debts to the HOA.

CAI concludes its introduction with, "This Court must balance the [homeowner's] claims that focus on their perceived 'rights' versus the rights and legitimate economic expectations of other homeowners". Funny, I thought that any and ALL activities must be subject to the US Constitution, the supreme law of the land, and that communal economic interests are no exception.

Skipping the details for now, CAI concludes this amicus brief with,

"In the context of community associations, the unwise extension of constitutional rights to the use of private property by members [...] raises the likelihood that judicial intervention will become the norm, and serve as the preferred mechanism for decision-making, rather than members effectuating change through the democratic process ".

First, it appears that CAI believes that private property still exists with the extensive restrictions placed on those rights and given to the HOA by the CC&Rs. Members no longer enjoy that bundle of private property rights as does a person living outside a planned community. Second, it admits that HOAs have removed constitutional rights from members when it cautions "the unwise extension of constitutional rights". Third, it insists that all is well, fair and just with the election process as it currently exists, and with the lack of a separation of powers within planned communities, to allow it to argue that members can effectuate "change through democratic processes".

Please see The HOA Principality

Notes:

1. Based on CAI's Dec. 2004 Amicus Curiae brief concerning the Committee for the Betterment of Twin Rivers Homeowners Association appeal to the NJ Appeals Court, C-121-0002.

Jan. 17, 2005

Citizens for Constitutional Local Government

"HOA citizens are US citizens first!"

George K. Staropoli

http://pvtgov.org