Author: HOAGOV

"The Voice for HOA Constitutionality". I have been a long-term homeowner rights authority, advocate and author of "The HOA-Land Nation Within America" (2019) and" Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

HOA liability: respondeat superior and agents as in Trayvon case

Orlando attorney W. Jeff Earnshaw, Esq. of Taylor & Carls, P.A. wrote in its Blog about, What the Trayvon Martin Case Can Teach Associations.  Some excerpts from this very informative article.

The case of Trayvon Martin demonstrates how something as seemingly innocuous as labeling a member of an association as the “Captain” of the neighborhood watch can open an association to possible liability.

Understanding how this designation in the association’s newsletter could ultimately lead to liability for the association can help HOA’s and Condominium Association’s limit their own potential liability for actions of others. . . . A well-established legal concept is respondeat superior, which literally means “let the master answer”. Respondeat superior provides the basis for a principal to be held responsible for the wrongful acts of their agent when those acts are performed within the scope of the agent’s duties.

While an employer-employee is the most common principal-agent relationship, with the employer being the principal and the employee their agent, an agency relationship can exist whenever someone acts on behalf of another. . . . The third element; the principal’s control over the actions of the agent, should not be overlooked. The general concept behind respondeat superior liability is that a principal generally controls their agent’s behavior, and therefore the principal should be responsible to the public for the agent’s actions while the agent is under the employer’s control.

See also What is an HOA’s duty of care liability to its members and to all others?

AZ class action against HOA management firms for unauthorized practice of law

A class action suit was filed in Maricopa County, AZ against numerous HOA management firms for the unauthorized practice of law resulting from their attempts to collect HOA debts.  The two plaintiffs allege against some 30 management firms, among other things,

Upon information and belief, the Defendants represented to the public and to members of the Class that they were acting with the full measure of authority reserved for licensed legal counsel for Defendants by negotiating debt on behalf of a third party, drafting, filing and/or preparing legal papers, including liens, debt collection letters, complaints, default judgment, judgments, and other debt collections activities which require the appearance of a licensed and authorized attorney; and charging fees for the foregoing activities. . . . Defendants actions directed at these Class Members constitute the unauthorized practice of law and are clear violations of the Fair Debt Collections Practices Act and Arizona law.

 

Crame v. 360 Management (Maricopa County Superior Court, CV 2012-095288, Sept. 10, 2012). The case has been moved to Federal Court.

A class action is undertaken when the number of victims is so numerous and who have basically the same allegations of wrongdoing. The two plaintiffs represent the class of homeowners who meet the following criteria,

 

All persons or entities who, at any time from August 1, 2006 to the present (the “Class Period”), were members of a Homeowners’ Association or like entity and who were pursued for an alleged debt owed to that Homeowners’ Association or like entity by any of the Defendants or other Community Management Companies who purported to pursue collections against said persons or entities without proper legal representation and/or on behalf of their third party HOA/Condo customers and/or who improperly held themselves out to be an attorney.

  

Related information

Class Action Filed Against AZ HOA Management Companies (Attorney Roger Wood blog)

UPL 12-01 – Scope of Legal Services to HOA’s (March 2012) (State Bar Advisory Opinion)

Final Order: HOA management firm engaged in unauthorized practice of law (AAM, LLC  was the defendant.  Still not made public info on the Supreme Court or State Bar web pages.)

 

PLEASE pass this on to others who may have claims against the HOA management firms.

HOA principalities: To bee or not to bee one government under the Constitution

As a result of a conflict over bees and whether local ordinances or HOA CC&Rs governing beekeeping prevail, the Tennessee Attorney General is being asked his opinion on HOAs as public entities.  Rep. Glen Casada has sought a clarification from Tennessee Attorney General Robert Cooper “for an opinion on whether or not the HOA is considered a political subdivision of the state.”  (The AG was appointed by the TN Supreme Court, and is an officer of the court and not the Executive branch).

How shall the AG decide?   Take a very narrow view and simply declare that the HOA is a nonprofit corporation under corporation laws and not a municipal corporation; therefore it not a state entity. If so, how does he address the fact that “if it looks like a duck, quacks like a duck, and walks like a duck, it is a duck?”  “A rose by any other name is a rose.”  A tax by any other name, assessments, is a tax.  A law by any other name, regulations or covenants, is a law.  In fact, British municipal law equates the term law with by-law. “3. British . an ordinance of a municipality or community.”

Let us assume that the AG takes a firm stand and enters into the foray.   The safest approach is to turn to the ancient public functions test of 1946 with respect to a company town and free speech. His decision would deny that the HOA is a public entity, probably, since the HOA doesn’t meet the public functions test. 

This view has always disturbed me when I examine the state’s municipality laws on incorporation of towns and villages. They ain’t got no such tests, yet they are declared public entities if they declare their allegiance to the Constitution and are approved by the state.   I guess it’s OK to use double standards when it comes to HOA governments. 

Are there any other criteria that bear on whether or not an entity is a public entity, or that it is a state actor acting as if it were indeed a state entity?  The law is rather extensive on state actors and state action. In today’s environment with the attitude of “no government interference,” applying state actor designations to HOAs will be a difficult task since it would extend the reaches of “big government.”  But, when dogma prevails over facts we must fight for “truth, justice and the American way.”

US Supreme Court holding in TN state actor case

The US Supreme Court has set several criteria for state actions and state actors, among them: a “close nexus,” a “symbiotic” relationship, “state’s exercise of coercive power”, “entwined with governmental policies”, and “significant encouragement, either overt or covert.”  They are discussed, in of all cases, in Brentwood v. Tennessee Secondary Schools, 531 U.S. 288 (2001).

I hope Attorney General Cooper will uphold the US and Tennessee constitutions, knowing full well that even homeowners living in HOAs are US citizens and citizens of the State of Tennessee, with full rights, privileges and immunities.

A free speech ‘puzzlement’: tattooing vs. HOAs

Echoing the thoughts of Yul Brynner in the 1956 King and I movie (Anna and the King of Siam), I’ve encountered a “puzzlement.”  In the just released 27 page opinion of the Arizona Supreme Court in Coleman v. The City of Mesa, No. CV-11-0351-PR, the Supreme Court ruled that the lower court must allow the tattoo artists to show that tattooing was a protected expression of free speech.  The City of Mesa had a discretionary zoning ordinance against tattooing establishments.  The higher court held that the trial court could not summarily dismiss the complaint as not having a questionable issue of law.

The complaint sufficiently sets forth claims for relief for alleged violations of the Colemans’ rights to free speech, equal protection, and due process. Whether they can prove those claims will depend on the course of proceedings in the trial court.

I will not go into the legal details of the court’s analysis, but allow me to make some comparisons with HOA free speech issues from the point of view of “consent to be governed” (not discussed in the opinion).  I refer to the pro-HOA arguments that continuing to live in your HOA is an implicit agreement to be bound by the ruling private HOA government under its pseudo-constitution and pseudo-laws. That argument, alone, the courts have repeatedly held, controls the homeowner’s consent to agree.

BUT, as we have in this case, shouldn’t operating a tattoo parlor in the City of Mesa be likewise viewed as an implicit consent to agree to city zoning ordinances, among other public laws?  And as such, haven’t the artists waived and/or surrendered their constitutional rights that they are now arguing that they still retain?  Like it is argued against HOA members? Apparently not, for the supreme court there are sufficient grounds to make such a legal argument (helped by the Goldwater Institute).

It’s a puzzlement.  Why two sets of legal doctrines?  One for the public and one for a class of citizens who live in HOAs?  A real puzzlement.

CAI attorney stalwart defends HOA Land private constitutions and so-called bill of rights

The CAI stalwarts once again responding to my challenge to defend the constitutionality and legal status of the HOA legal scheme, including the highly questionable assertion of a “consent to agree” under the constructive notice doctrine.  This time, dedicated CAI stalwart Beth Grimm enters the arena with her August 2012 e-newsletter, What’s new in HOA Land . . .  The topic is, “Homeowners Bill of Rights.”

From the very start she informs her readers, in a round-about way, that there are no federal or state constitutions applicable to HOA private agreements.  I’ve been saying that for years!  And she points out that, “Without A Constitution What Is a Bill of Rights Worth?”  Grimm continues in what must be taken as a joke, in full agreement with the comment by Bill Davis, with a quote from Thomas Jefferson about the need for a bill of rights after admitting there is no HOA constitution.  

It appears that the reader is entering the realm of the attorney “word-game,”  where long established concepts and meanings are distorted to suit the attorney’s private agenda.  It’s an indoctrination and propaganda tactic. Welcome to Newspeak.

In strict legal terms, the assertion by Grimm that the governing documents are the HOA’s constitution is not correct.   But the courts have upheld the CC&RS as if they were just like a political constitution and interpreted them as a de facto constitution.  And as I have tried to explain, state laws like the California Davis-Stirling Act, the UCIOA acts, and other state HOA “Acts” serve as a parallel code of public laws applicable at the local government level to the class of nonprofit private governments called HOAs. 

The courts have also applied public government attributes, conditions and rights to these private contracts that are not contained in the explicit CC&RS covenants, and have applied overly broad interpretations as to what the members have agreed to without their signature – just by simply taking their deed in hand.  In other words, the activist courts are imputing a “consent to agree” that does not exist in the CC&RS. And nobody warns the unsuspecting homeowner of the consequences of reaching out for that deed. Nobody!

A host of reputed rights are then examined by Grimm, but they read more like the documents of the Rights and Responsibilities of members (a document first used to explain what a democracy is all about and how citizens are to act;[i] and a publication of CAI Central). It is in stark contrast to the preamble to the US Bill of Rights, emphasis added,

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

This long time CAI stalwart attorney does not address the constitutional concerns raised in my The Truth in HOAs Disclosure Agreement, nor does she call for CAI to conduct such a poll. There is no support for my Declaration of US and State Citizenship. Grimm’s presentation misses this important point.

Nor does she mention that back in the 2008 – 2009 the California Law Review Commission’s attempt to rewrite the Davis-Stirling Act contained a proposed Chapter 2, Member Bill of Rights.  It was quickly removed and has not been adopted in the new law to become effective in 2014.  Nor does she present the homeowner advocates proposed homeowners bill of Rights published in the now defunct AHRC website and the AARP version written by David Kahne in 2006, among others.

It should be noted that in 2008 the Uniform State Laws Commission adopted a bill of right for UCIOA (UCIOBORA), but did not incorporate it was a part of UCIOA.  Rather, they created a separate version so that states can choose to adopt its so-called bill of rights or leave them out.  To date, no state has adopted this bill of rights.  It reads like your CC&Rs and pro-HOA state laws.  Nothing at all like the US Bill of Rights or the state Declarations of rights.

If HOA Land is to join the union and lose its independent principality status, thereby providing constitutional protections to the homeowners,  then Beth Grimm and all other CAI legal-academic aristocrats should be demanding the amendments to the Declaration  and state laws as proposed in my Declaration above,

The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.

Why aren’t they?  The above state law and mandatory Declaration amendments will put an end to the jokes and word games that attempt to hide the fact that HOAs are de facto but unrecognized governments operating outside the Constitution. And there will be a bona fide Bill of rights!

 

[i] The Rights of Man, Thomas Paine, 1791; The Declaration of the Rights of Man and of the Citizen, 1793, French revolution origins)