Tag Archives: Staropoli

Let Me Vent About The CAI!

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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?

Astute Analysis Of The Virginia HOA Debacle

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guest blog by George Staropoli

I thank Ward for covering the developments at the Virginia Legislature regarding:

1) the right of HOA to fine members even though the sacrosanct CC&Rs contract does not permit them,

2) making fines the same as assessments thereby allowing for foreclosure for the nonpayment of fines, and

3) overriding the Virginia Supreme Court’s holding in Unit Owners v. Gillman (1982) that fines are a government power that cannot be delegated. 

Virginia’s HB 791, the bill in question, makes use of the statutory  mandate word, shall, which can lead to claims of HOAs as state actors because they are obligated to do the bidding of the state.  “The board of directors shall also have the power . . . to (ii) assess charges against any member for any violation of the declaration or rules and regulations,” except if explicitly forbidden in the declaration.  (Sections 55-513(B) and 55-79.80:2(A)).  

Yet in Gillman the Virginia Supreme Court held, 

We do not agree that it was ever the intent of the General Assembly of Virginia that the owners of units in a condominium be a completely autonomous body, or that such would be

permitted under the federal and state constitutions. Admittedly, the Act is designed to and does permit the exercise of wide powers by an association of unit owners. However, these powers are limited by general law and by the Condominium Act itself. 

What HB 791 does is to make HOA fines legal under Virginia’s statutes. Ha!  Take that!  By fiat, by statute, HOAs are permitted to impose a draconian monetary penalty against homeowners – the right to make them homeless through foreclosure. 

The Court in Gillman went on further to say,

“The imposition of a fine is a governmental power. The sovereign cannot be preempted of this power, and the power cannot be delegated or exercised other than in accordance with the provisions of the Constitutions of the United States and of Virginia. Neither can a fine be imposed disguised as an assessment. . . . We think it clear that the Gillmans were being punished, not assessed, and hold the action of the Association to have been impermissible. 

And very importantly from a constitutional point of view (my emphasis), “A condominium restriction or limitation, reasonably related to a legitimate purpose, does not inherently violate a fundamental right and may be enforced if it serves a legitimate purpose and is reasonably applied.”  

What is the genuine government interest to impose draconian monetary penalties for the failure to pay a private organization’s penalty?  

If it is argued, but has not yet been so argued, that HOAs are vital to the welfare of the community in general and to somehow provide for the greater community’s happiness, then what we have is the HOA acting as an arm of the state.  The HOA is then subject to the Constitution as if it were a state government entity.

(UPDATE FROM WEBMASTER: even though the State of Virginia may have modified its proposed legislation, George’s point should be kept in mind because other states may begin going down the same unconstitutional path as Virginia was headed.)