|BUYING AWAY YOUR CONSTITUTIONAL RIGHTS|
October 31, 2001
Orange County, CA - There are those
who would say that when you buy into a homeowners association (HOA) you
sign away your Constitutional rights. On the other hand, the HOA housing
industry (lawyers, property managers, builders, contractors and other vendors)
will say you agreed to those terms by virtue of having purchased a home
in an HOA. If you live in an HOA or are considering buying into an HOA,
take a look at those covenants, conditions and restrictions (CCR's). Even
read the fine print. You might be hard pressed to find a disclosure like:
1. Because of the
inherently flawed and unchecked HOA corporate "government", HOA's
2. Year after year, you are always only one election away from disaster.
3. Year after year, you are always only one board member away from tyranny.
4. HOA "elections" are not public and can be wrought with fraud.
5. There is likely no requirement that HOA candidates provide a resume.
6. You may never really know just who is in charge of the money.
7. Past performance is no guarantee of future performance.
8. You will be
controlled by a handful of "elected" neighbors who have been granted police
9. You will be
controlled by a handful of "elected" neighbors who, in tangent with these
10. CONSTITUTIONAL PROTECTIONS MAY NOT APPLY.
While we battle and defend our homeland from foreign terrorists, we are overlooking the domestic terrorists that are waging a war on the home front and the American Dream of Home Ownership. The HOA housing industry has control of millions of American's homes and are pillaging that most sacrosanct of places and our absolute last bastion of freedom - home sweet home. Right down to the shades of beige you can paint your home, the HOA industry seeks to control lives, claiming to retain property values, which has never been proven. But at what cost? The sacrificing of freedoms and equal protections under the law?
For those who are not familiar with the HOA "government" - it is a system without checks and balances. That alone destroys any foundation for a "Just" government. It can be wrought with fraud and has no built in penalties. It literally gives handfuls of so-called "elected" neighbors, police powers to assess, fine, lien and non-judicially foreclose (meaning without one's day in court) on their fellow neighbors while they simultaneously act as judge, jury and executioner when determining the fate of one's home. An outrage you say? Sadly, this outrage is supported by politicians who vote to pass legislation that reaffirms it.
Following are excerpts from the Declaration
of Independence. While reading them, keep in mind the concept of the HOA
corporate "government" and how it relates to the former King's regime.
And then ask yourself this question - are homebuyers knowingly and willfully
choosing HOA life over Traditional life?
"He has refused his assent to laws, the most wholesome and necessary for the public good."
"He has called together Legislative Bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures."
"He has dissolved representative houses repeatedly, for opposing with manly firmness, his invasions on the rights of the people."
"He has refused for a long time, after such dissolution's, to cause others to be elected..."
"He has obstructed the administration of Justice, by refusing his assent to laws for establishing judiciary powers."
"He has made Judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries."
"He has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance."
"He has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our Laws, giving his assent to their acts of pretended legislation."
"For imposing Taxes on us without our consent."
"For depriving us, in many cases of the benefits of trial by jury."
"For abolishing the fire system of English laws in a neighbouring Province, establishing therein an arbitrary Government and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies."
"For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments."
"For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever."
"He has abdicated Government here by declaring us out of his protection and waging war against us."
"He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people."
"In every stage of these Oppressions we
have petitioned for redress in the most humble terms: our repeated petitions
have been answered only by repeated injury. A prince, whose character is
thus marked by every act which may define a tyrant, is unfit to be the
ruler of a free people."
So to that end, The Constitution of the United states was established to, "form a more perfect Union, establish Justice, insure Domestic Tranquility, provide for the Common Defence, promote the General Welfare and Secure the Blessings of Liberty to Ourselves and Our Posterity..."
How important are your Constitutional rights to you, your children and their children? Alexander Hamilton in 1775 said it best when he wrote that , "They are written, as with a sun beam in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power."
The concerns of Homeowner Advocates across America of the obfuscation of our Constitutional protections by mere mortals is being tested by Rutgers Constitutional Litigation Clinic and the ACLU of New Jersey. Together, they seek to question the authority of some CCR's based on Constitutional protections in a lawsuit filed against Twin Rivers Homeowners Association on behalf of the Committee For a Better Twin Rivers - Case # C-121-2000, in New Jersey.
It is unreasonable and unrealistic to claim that homebuyers willfully and knowingly give up their rights by virtue of a purchase into HOA housing. The HOA industry has a vested interest in making such a ludicrous claim...their paychecks.
If you currently own or have ever owned in an HOA, was that your intent? Did your "constitution" of CCR's spell out for you which Constitutional protections would not apply? Were the CCR's properly and timely disclosed to you? Was there a requirement that you sign for and initial every page of the CCR's, applicable civil and corporate codes and then notarize that you have "read and understood" all related controlling documents?
Or how about to sign and notarize a simpler disclosure like, "By virtue of your purchase into 'HOA Corporate Housing USA, Inc.', you have agreed to forgo Constitutional protections and simple freedoms and understand that Homesteads are not protected and the HOA Corporate Board of Neighbors may seize your home without due process for nonpayment of mandatory dues."?
Because of the heavy hand ($) of the Departments of Real Estate, getting full and proper disclosure laws passed may be nearly impossible. Perhaps they fear it would sink the housing market? On the other hand, if they build enough of these, and at the same time force non-HOA housing into mandatory HOA housing, home buyers may end up with no choice but to live the HOA life.
Think about the simple freedoms and equal rights protections under the law that we sometimes take for granted - including freedom of choice. Contrary to that end, HOA living micromanages homeowners lives and forces them to comply to often times ridiculous minutiae like "House trim must be painted beige, not ivory or eggshell", under threat of foreclosure.
That threat, among other things, is detailed in carefully crafted legalese that may not be clear to "Joe Homeowner". However, it has become clear to the growing Homeowner Advocacy movement working to save homes and who refer to HOA housing as - a legalized housing scam.
Take for example: non tax deductible increasing dues, unlimited special assessments, fines and penalties that can be forced upon you without your vote. And what about taxation without representation? Would threat of foreclosure on one's home for the "crime" of failure to pay as little as a $5.00 late fee on mandatory dues, be classified as unjust, cruel and unusual punishment? Is an HOA homeowner's so called "right" to a hearing before their "elected" board of neighbors to contest any "alleged" crimes really a "right"? This may be the extent of any "rights" you may have in an HOA.
Could you really trust an "electoral" system run by hired property managers of the association whose next paycheck depends upon the board in control at that time? And what about that homeowner that is denied his "right" to vote because he missed a payment? HOA corporate "governance" mandates no accountability to its "constituents", has no penalty for board transgressions or violations of the CCR's, and is not required to abide by any Rules of Order or Public Records Acts. To add insult to injury, it is very likely that the board of neighbors is covered by a multimillion dollar directors and officers "duty to defend" liability insurance policy funded by your dues. Right or wrong, they are covered. You are not.
As your read these Constitutional excerpts,
think long and hard about the ramifications of giving up these time honored
Rights that were "intended to endure for ages to come". (John Marshall)
"Article IV, Section 1. Full faith and credit shall be given in each State to the public Acts, Records and Judicial proceedings of every other State..."
"Article IV, Section 2. The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
"Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the Government for a redress of grievances."
"Amendment IV. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated...."
"Amendment V. ...nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation."
"Amendment VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
"Amendment XIV , Section 1. ....nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws."
"Amendment XV, Section 1. The right of
citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color or previous
condition of servitude."
HB2152 was signed into law by none other than George himself. The once valued tradition and importance of creating culture, history and roots for our children and generations to come, should not be underestimated. It has been rendered meaningless by anti-homeowner and anti-family bills such as Texas' HB2152, California's Gray Davis/Stirling Civil Code, California's AB2289, AB555, and the latest craze, the Uniform Common Interest Ownership Acts, which seeks to "standardize" CCR's across the country.
The concern here-in is that the lawsuit industry will then have full reign and power to mandate and enforce the "Uniform" CCR's across State borders, which may then lead to "federalizing" all housing. In other words, "private property", as we know it today, may no longer exist, or at least it may become untouchable by "Joe Homeowner". The seemingly cozy relationship between HUD, ULI and politicians, with the HOA housing industry, seems to support these claims. Ladies and Gentleman, this is a dangerous precedent.
This brings us to Article VI. "......This Constitution, and the Laws of the United States, which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of these United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby....The Senators and Representatives before mentioned, and the Members of the several State legislatures and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution....." Sadly, they all seem to be failing miserably in this regard.
All of this causes one to pause and wonder, what possible motive could they have for allowing the HOA housing concept to continue being built unabated and unchecked? The only common denominator is money. They are building towns and cities on the backs of "Joe Homeowner", who assumes all costs, risk, and liability, the collateral of which is his "home sweet home". It is also why the local Mayor might turn her head from you when asked about "taxation without representation?" or "double taxation"?
Think about it. Privately held streets, sidewalks, pools, tennis courts and other services no longer have to be provided or maintained by the municipality. Not only do you pay the dues to maintain those privately held liabilities and assume all liability for them, the burden of liability held by only a few hundred homeowners as opposed to potentially tens of thousands of citizens creates risk.
HOA or not, you are still required to pay your lions share of city taxes. In the meantime, city salaries and taxes climb right along with your HOA dues, which can grow unchecked, unverified and under some laws passed by the politicians, could increase as much as 20% per year without your vote. Remember too, HOA dues are not tax deductible
At the conclusion of the Constitutional Convention, Benjamin Franklin was asked , "What have you wrought?" He answered, "....a Republic, if you can keep it." It is a tragedy that Americans in many parts of the country are being forced to, "Buy Away Their Constitutional Rights" and trade in essential Liberties just to put a roof over their heads. And all in the name of the common area "green$".