What should HOA Federal Regulation look like?  

By Deborah Goonan

We have a huge, systemic problem in the US. It used to be that regulation was enacted and enforced to protect the People, the taxpaying constituents of government. The purpose of regulation was to uphold individual rights and to honor our federal and state Constitutions.

Over the years, that original purpose has been perverted by pervasively symbiotic public-private partnerships between large corporations and every level of government. Unfortunately, many of America’s elected public servants have sold out to special business interests that contribute heavily to campaigns and pay lobbyists to create and promote self-perpetuating legislation. Even some of our elected judges have shifted their loyalties to corporate and government cronies instead of individual Americans.

The great citizens’ challenge presented to us in the 21st century is restoring America’s values to upholding the inalienable rights of its people. American government’s focus must shift away from protecting profits and revenue of power players, to the detriment of We the People.

In the HOA realm, the current power players are Developers, NAHB, CAI, NAR, FHA, Freddie Mac, Fannie Mae, HUD, ULI, and local governments that benefit from increased property tax revenues. Forgive me if I might have missed a few.

It is a daunting problem. Where to begin?

I have observed that there are a few instances where the HOA almost always loses in court: discrimination based upon federally protected-class status like race and disability are two that come to mind. But most rights to freedom of speech and expression, access to due process, and use of personal property are significantly limited under the cover of so-called contractual agreements written by the power players.

The disturbing truth is that corporate real estate interests have gained excessive control and nearly free reign to exploit HOA owners and residents because laissez faire government policy and practices aid and abet their efforts. But We the People have elected these so-called leaders! (Or have chosen not to vote)

So the first order of business is for individual Americans to reassert our inalienable rights. That starts with becoming educated constituents and voting for public servants based upon their personal character, and not upon false rhetoric supported by wealthy corporations. We need to elect men and women that truly serve the interests of Americans as individuals.

The second order of business is to push for HOA legislation that upholds the Constitutional rights of owners and residents. The overall goal is to limit the power HOAs exert over owners and residents – to get HOA de facto government out of the way! It may sound contradictory, but Federal regulation of HOAs must result in fewer, less complicated laws governing their operation.

Federal Regulation would start by stripping HOA Boards – private corporate entities – of their authority to enact rules, to fine homeowners, and to lien and foreclose on property. All of these matters would be deferred to local code enforcement and the court system on a very limited basis, with a strict litmus test: does the transgression of the owner or resident rise to the level of causing significant harm to fellow citizens? And significant harm must not be defined as “anything that might potentially harm property values,” because intrinsic human values must trump values of non-living things and possessions.

Because of the perverted nature of regulation in America, where corporations often create legislation to regulate themselves, in my opinion, a global approach is necessary.

Federal legislation, therefore, must be viewed as the next generation of Civil Rights in America.

  • No entity, public or private, must be permitted to unduly limit or alter the inalienable rights of any American, as they are spelled out in the Constitution and the Bill of Rights.
  • Any contract that limits the rights of either party must be set forth in plain language, and explicitly acknowledged by all parties – and the terms of the original contract cannot be subject to modification after the fact, without the express written consent of each individual party.
  • Furthermore, the government shall have the absolute duty to uphold individual Constitutional rights, and to enforce appropriate penalties against individuals or entities, public or private, that violate those rights, including, in the case of elected officials, removal from office.

Those three sentences alone clearly limit the power and authority of corporate or government entities over Americans.

The end result would be the automatic invalidation of the majority of offensive and trivial provisions in CC&Rs, just as previously enacted federal Fair Housing legislation has invalidated overtly discriminatory deed restrictions in real estate sales and leasing practices.

No complex, lengthy regulatory manuals required. Less truly is more.

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