An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

Published May 25, 2007


We always talk about our Constitutional Rights in the " Land Of The Free ."  We even send our troops overseas in order to protect other nations' freedom.


But how well does our Constitution serve owners living in our mandatory associations?

Let's make it very clear: NOT AT ALL!


Our legislators have to sign the OATH OF OFFICE of the STATE OF FLORIDA starting with these words (quote): "I, DO SOLEMNLY SWEAR (OR AFFIRM) that I will support, protect and defend the Constitution and Government of the United States and of the State of Florida."


But then these same legislators protect special interests that infringe on our constitutional rights and even allow specialized attorneys to publicly declare that the U.S. Constitution doesn't apply in mandatory associations. 


In the infamous case of the TUDOR CAY CONDOMINIUM regarding the distribution of a flyer in Tampa, attorney Steven Mezer from the law firm of Bush Ross  P.A. argued that association rules even supersede constitutional rights. "He has a right to push the First Amendment, but the law doesn't apply here," Mezer said.


In the nationwide publicized case dubbed "BATTLE AT TWIN RIVERS" in New Jersey, which is in the moment pending in front of the NJ Supreme Court, the CAI (Community Associations Institute),  trade-organization of specialized lawyers and association service providers, filed an AMICUS BRIEF that heavily defends the presumption that our communities are not protected by constitutional rights, but are private corporations governed by the business judgment rule.  (CAI is a trade organization of specialized lawyers and association service providers.) 


In other words: These service providers would like to see that our communities forget about "neighborly" and protection of private property rights.  They would rather see communities turned into profitable corporations -- profitable for the service providers, not the property owners. It's much easier to fleece people that are unprotected and that don't have the finances to fight for their rights in court!



In an opposing AMICUS BRIEF the AARP, fighting for the rights of the consumers, defends the constitutional rights of the owners. Quote: "There is no more reason to depriving these people of the liberties guaranteed by the First Amendment than there is in curtailing these freedoms with respect to any other citizen [in a public municipality].”


For the same reason -- to protect the rights of homeowners in mandatory associations -- the AARP published a Sample Model Statute under the title "A BILL of RIGHTS for HOMEOWNERS in ASSOCIATIONS" --  Principles of Consumer Protection! Nationally renowned attorney and consumer advocate, David Kahne from Houston , authored this document with the goal to grant broad protection for homeowners’ rights as recognized by the United States Supreme Court (quote), “Special respect for individual liberty in the home has long been part of our culture and our law.”


Frank Askin, a Rutgers Law School professor and lawyer for the plaintiffs, said the case "involves fundamental freedom of speech and communication and also the right to due process and a hearing. Property rights do not trump individual rights under the law!"

If the attorneys of the CAI get their way, all owners in mandatory associations would live in a corporate world, unprotected by our CONSTITUTION.  Obviously much to the joy of these attorneys, these private governments could be quickly turned into dictatorships without governmental oversight -- not even talking about CONSTITUTIONAL RIGHTS!

These same service providers, who consider these associations their private cash cow, always claim that the owners voluntarily sign their rights away when they buy property in a mandatory association. I would strongly suggest that many owners would refrain from buying in associations if they were told -- before the purchase -- that they are buying property in a community that is a "private government" without enforcement of the rules, no accountability of the people in charge, and that they will be stripped of their constitutional rights! Even the fact that nearly all newer homes are built within the boundaries of a mandatory association would scare quite a lot of buyers away. Who wants to risk his life savings in a community ruled not by our Constitution but by the business judgment rule?

Greedy for taxes, most counties and cities make sure that all new developments come with a mandatory association attached. Ever heard of DOUBLE-TAXATION?

Counties and cities receive the full property taxes, but don't have to provide a lot of the regular services normally funded by these government entities. These services – such as street lights, road repairs, retention ponds, etc. -- are already paid by owners’ association dues.  This leaves the local governments with a much bigger piece of the pie -- called property taxes!


Robert Metcalf, author of a recently published Position Statement On Common Interest Developments, leaves no doubt in his opening statement that much is wrong in these "private governments" governed by the business judgment rule. Quote: "The purpose of this paper is to illustrate and provide some possible remedies to what I perceive as the greatest injustice perpetrated upon the American citizen in history."

In very strong words Metcalf explains why these "Common Interest Developments" do not serve the good of the owners and shouldn't even be allowed to exist in this form. Quote: "Don’t you think it’s time we rid the country of these patently un-American institutions and replace them with a true democratic system, one designed to preserve the resident’s rights as opposed to denying the same?"

When will our legislators finally realize that their oath of office clearly asks them to defend the constitutional rights of our citizens? When will they stop enacting statutes that seriously infringe on our constitutional rights?

When will we see our constitutional rights restored by our legislators -- constitutional rights that were stripped from us by these same legislators when they enacted statutes that allow the lawyers from the Community Associations Institute to claim that we lost our constitutional rights?

How can our legislators presume to claim that owners who buy into mandatory associations must sign away their constitutional rights at the gate?