The following is a model bill that would place all homeowners associations under the 14th Amendment and state laws, thereby bring the equal application of the law to all citizens within the state living or not living in an HOA. This model bill would go a long way to removing the second form of local political government in this country, while retaining the beneficial features of planned communities.
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“It is the intent of the Legislature that planned community and condominium associations, being private, contractual de facto governments, be subject to the same public laws governing local public governments and entities as all legitimate government entities are so required. These associations would be subject to, including but not limited to, fair elections processes, due process protections by means of independent tribunals, and with respect to its officers and directors, to the equivalent laws and penalties as are mayors, council members, and agency/department heads. The Legislature affirms, for all to know and understand, that the US Constitution is the supreme law of the land.
“A municipal planning agency or other agency responsible for the approval of the development of a residential subdivision may approve a subdivision development that imposes a homeowners association, provided that the Declaration of Covenants, Conditions and Restrictions contains the following:
“Association as a public entity.
“Anything in the governing documents to the contrary notwithstanding,
“1. it is understood and irrevocably agreed to by the Declarant and members of the Association that, for the purposes of the application of the Fourteenth Amendment to the US Constitution, the Association is a public entity, and is subject to the US and Arizona Constitutions and to the laws of the State of Arizona governing public entities.
“2. that the Association may exercise the powers granted to it in the governing documents provided that any such powers are consistent with applicable public law.
“3. That the members of the Association may waive or surrender their rights, privileges and immunities that they possess as citizens of the State of Arizona, provided that such waiver or surrender is consistent with the public laws of the municipality and with the constitutional laws governing the legitimate surrender or waiver of these rights.
“4. Until such time as state agency consumer warning and/or advisories are provided to prospective buyers, as the equivalent of the securities “red herring” documents since buying a home is similar to the purchase of a privately held business, an implied surrender or waiver of the rights indicated in (3) above shall not be construed as a surrender or waiver of any such rights, privileges and immunities.”
HOA Constitutional Government 