While I can understand why CAI wishes to keep the current focus that HOAS
are contractual and therefore not a government, I do not understand why
some advocates insist HOAs are not governments. How do we correct the
problems that exist within the very structure and concept of the HOA form
of governance? (Please see my post on legitmacy of HOA governance).
I believe that any attempt to get equality and justice, as they proclaim
they are for, and CAI says exists in HOAs, cannot be accomplished by a private
adhesion contract in favor of moneymaking developers, without a bill of
right and without the protection of the US Constitution.
What's their point? How can it do that? They, themselves, even have
argued that its an adhesion contract. CAI even admits that CC&RS can
be judged as adhesion contracts by the courts. Why? Because they don't want
government interference? Because they want to set their own rules and
choose who will live in their neighborhood? Well, that's acceptable, if
as they argue, home buyers had full access to all information and made an
informed choice? Maybe that's why there's little support for a full written
disclosure about living in an HOA.
Yes, courts have ruled that HOAs are contractual and in some cases did
not contain elements it thought constituted a government. Yes, there have
ben cases denying state actor stauts to HOAs, but there has been many cases
declaring cetain actions as state actions, and even a clear avenue to a favorable
ruling that HOAs are state actors (agents of the government).
But guess what folks, the USSC or state courts haven't defined what a government is
, other than a procedural one -- an organization formed under the state municipality/city
laws that governs a territory or subdivision. Why not? CAI and the courts
take the argument that, well, many nonprofits have some of these functions
too, so the HOA is not a government.
I can argue the reverse, that a government under the laws of the land
do have the same functions as any organization that must have a GOVERNING
body. Whether called a Council, a Legislature, a board of supervisors,
board of trustees, a board of directors, etc. And, guess what, some of these
governments have certain powers and others don't, but they are still a government.
Let's go beyond the arguments of what the laws are and the laws say
and look for just and legitimate laws and you begin to see the motives behind
CAI to keep HOAs as private and not public. (Obviously, it's to their advantage
to keep everybody focused on the current unjust
laws). Could it be as I have argued that they need repressive CC&Rs
with mandatory membership and compulsory dues in order to survive? Read
the history of planned communities and you will find the answer a definite
And that's why they do not want it public that living in an HOA makes
you a second class citizen. As Professor McKenzie said long ago in Privatopia, "CIDS [HOAS] currently engage in many activities that would be viewed by the courts as the equivalent of local governments".
We are here to change the laws and make them just and fair! And if
that's truly one's objective, then you cannot get more fair and more just
than as others are subject to under our system of government. Anything else
is a private government for a select few, an attempt at utopian ideals which
history has shown to have all failed except for a smattering of small groups.
What's wrong with our system of government? Are there any viable and practicing
government alternatives? What are they like? Are they democratic?
Again I ask, what are the reasons for advocates to say they are not
governments in every sense except for being formed under the state municipality
Well, as posted earlier, what is a government? Here are some answers.
Note: The term "political unit" means the same as a territory or area
with boundaries; such as, country, state, province, county, city, town, village,
district, etc. "politics", the decison-making process of a group of people.
NOLO.com -- nothing
Columbia Encyclopedia --
system of social control under which the right to make laws, and the right
to enforce them, is vested in a particular group in society.
local - political administration of the smallest subdivisions of a country’s territory and population.
Law.com -- nothing
Roget's -- Authoritative control over the affairs of others
American Heritage -- Exercise of authority in a political unit; rule
OneLookDictionary -- A government is an organization that has
the power to make and enforce laws for a certain territory. There are several
definitions on what exactly constitutes a government.
Merriam-Webster -- the continuous exercise of authority over and the performance of functions for a political unit;
Cambridge -- he system used for controlling a country, city, or group of people:
Wikipedia -- A government is an organization that has the power to make and enforce laws for a certain territory.
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Citizens Against Private Government HOAs
"Hoa citizens are US citizens first!"
George K. Staropoli
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