guest blog by George Staropoli
How dare Susan French (lead ‘editor,’ of the 2000 Restatement of Servitudes, 3rd; co-author of Community Associations Law (1998 & 2008) with Wayne Hyatt, CAI national leader) take the attitude, accepted by the publisher, ALI, that this treatise is geared toward private governments because that’s what the people want. Did any group have her ear? (The Restatement is the common law treatise used by the courts when statutory law is silent.)
“Susan French begins with the assumption that . . . we are willing to pay for private governance because we are unable to pay for these amenities . . . individually. Therefore this Restatement is enabling toward private governance so long as there is full disclosure . . . and so long as decisions are made according to established and fair procedures.” (Foreword, p. IX). (My emphasis).
What part of reality did she miss? That people love HOAs? That there are fair procedures?
The Restatement speaks of private governance, which apparently French really meant as private government without being subject to the US Constitution. Section 3.1(2), Validity of Servitudes: General Rule, declares that the servitude cannot “unreasonably burden a fundamental right” (p. 347). What is a reasonable burden on a fundamental right? Does that control the Constitution? Is this private citizen law? After a long discourse on protecting fundamental rights, comment h makes it clear that,
“The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, not of constitutional law. Constitutional law decisions may be useful, but are not controlling, in determining when a servitude goes too far. When private parties create and enforce servitudes they are not governmental actors.” (p. 359-60).
Well then, what do we need the Constitution for? What do we need legislators for?
George, the people that truly “want” privatization are the relatively few people who are wealthy enough to acquire and develop land (planned developments) and vertical or horizontal property (condominiums).
HOAs (including condos) are corporations that have been granted government powers through Statute. What other corporate entities have these powers?
The few people who own the land and the bulk of “units” control the votes. Those who control the vote control the corporation, and any profit or wealth that can be obtained from its operation.
Amenities and open spaces have historically been the goodies dangled in front of buyers as an enticement to buy into what has been marketed as “democratic” and “care-free, low maintenace” lifestyles. Buyers wanted the perks, but only because the vast majority of them had no idea of the potentail long-term financial liabilities. People had no inkling that their rights would not be honored if the HOA corporation, through its Board, feared any real or imagined threat to property values – and their subjective definition of what creates those values.
But now buyers and owners are beginning to see that amenities and open spaces are not as valuable as property and Constitutional rights, and quality of life.