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.

Trump Era lessons for HOA Reformers

Before you turnoff not wanting to hear anything involving Donald Trump, that would be  big mistake. A BIG mistake!  Trump is a model of successful power politics at work that have not been adopted by advocates.

There are two important lessons that should be employed if substantial reforms are the object.  First, Trump is noted for attacking his accusers raising the argument of unclean hands.

“The legal term clean hands refers to a defense in a civil lawsuit regarding a contract, which allows a defendant (the person being sued) to claim that the plaintiff (the person suing) has engaged in wrongdoing. If the defendant is successful in proving the plaintiff had unclean hands through bad or illegal behavior, the plaintiff would not be able to obtain a remedy from the court.”

This tactic is so ripe for application against rogue HOA boards and officers, including CAI and the HOA managers.  Easily demonstrated if time is taken in the course of claims to collect this evidence for the court.  And also, when advancing proposed reform bills to your legislature – CAI will be whispering in the halls of the legislature.  Let the legislators know!

Second, and very effective, is to use CAI’s words and documents against it — there is plenty of fodder. Very difficult to explain after exposing a litany of common attitudes and hypocrisy.  Look at what Trump is facing in his numerous indictments.

What are reformers afraid of?  When getting very little anyway there is very little to lose.

Supreme Court finds taking excess foreclosure funds unconstitutional

The Supreme Court landmark decision in Tyler v. Hennepin County (No. 22-166, May 23, 2023), addressed an appeal by a  non-HOA homeowner in Minnesota who was foreclosed on by the state.  She brought “claims under the Takings Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment.” It has an immense impact on the constitutionality of HOA foreclosures. The Takings Clause is applicable to the action of states by means of the 14th Amendment.

(These claims of unconstitutional foreclosures and excess fines as a punished were argued in my 2013 pamphlet, HOA Common Sense: rejecting private government, No. 8, “Draconian punishment and intimidation.”)

In Tyler, the Court maintained that while states have imposed property  taxes,

“Such taxes are not themselves a taking, but are a mandated “contribution from individuals . . . for the support of the government . . . for which they receive compensation in the protection which government affords.”

And it posed, “The question is whether that remaining value is property under the Takings Clause, protected from uncompensated appropriation by the State.”  The Court answered,  “Our precedents have also recognized the principle that a taxpayer is entitled to the surplus in excess of the debt owed.” 

The Court’s reasoning extended the Takings Clause to other arenas beyond taxes,

“Finally, Minnesota law itself recognizes that in other contexts a property owner is entitled to the surplus in excess of her debt. Under state law, a private creditor may enforce a judgment against a debtor by selling her real property, but “[n)o more shall be sold than is sufficient to satisfy” the debt, and the creditor may receive only “so much [of the proceeds) as will satisfy” the debt. . . . Likewise, if a bank forecloses on a home because the homeowner fails to pay the mortgage, the homeowner is entitled to the surplus from the sale.”

The Supreme Cout concluded,

“Because we find that Tyler has plausibly alleged a taking under the Fifth Amendment, and she agrees that relief under “the Takings Clause would fully remedy [her] harm,” we need not decide whether she has also alleged an excessive fine under the Eighth Amendment.”

In a broad, extended view of this decision, one can say that any state law that does not allow excess funds from foreclosure to belong to the debtor, by public or by private foreclosures, would be deemed unconstitutional.  And that goes for HOA foreclosures!  No longer need we address the opposition that HOAs are private contracts and the Constitution and laws of the land do not apply.  This momentous Supreme Court decision has knocked down the doors for homeowners in HIOAs.  

Where is the “community” in a community association?

On the HOA Reform (FB) page a woman in medical distress and need of support wrote, in part, “Home health couldn’t get in, friends couldn’t get in, I live alone, no family here. I tried every local government and legal aid, no help. I wrote the BOD many times, and said at August meeting that I had stroke and need gate open.”

Her situation has occurred countless times — single or elderly woman, not on good health, low-income status, and living alone is the object of HOA board abuse. And she cannot get any support from her neighbors. I responded with:

This is the biggest hypocrisy of the use of the name, community association. There is no healthy, productive community of people and calling it so doesn’t make it so. Where is the good neighbor, help thy neighbor policy, and the compassion and the charity toward your neighbor by those who allegedly sought these values. No, none at all! Trying to call it an investment or a business is laughable when we all signed a real estate contract and not a commercial business (UCC) contract! The public has been conned. And your government believes its none of their business. It supports and encourages a successionist private government allowed to function outside the Constitution.

Welcome to The New America of Independent HOA Principalities.

AZ bill automatically removes BOD if law not followed

Some good news for restoration of homeowner control of the boards failure to act in violation of state law.  Arizona bill HB 2607, Sess. L. Ch. 111 added this subsection regarding the removal of the board of directors.

Section 33-1243 for condos and 33-1813 for PUDs:

“(d) If all of the requirements of this subsection for calling a special meeting are met and the board of directors fails to call, notice and hold a special meeting within thirty days after receipt of the petition, the members of the board of directors are deemed removed from office effective at midnight of the thirty-first day.”

Of course, the homeowners must have a set of directors ready to take over and establish the election/appointment of the new board as party of the BOD’s records.

Thanks to Dennis Legere for his many efforts before the Arizona Legislature.

HOA homeowners are ‘the forgotten man’

HOA homeowners are the “forgotten man” to use FDR’s characterization of the farmers and working-class citizens during the Great Depression of the 1930s. As Governor of NY running for the Presidency, FDR addressed the nation on April 7, 1932. The relevant parts are provided below.

“It has been said that Napoleon lost the battle of Waterloo because he forgotten his infantry . . . . The present administration in Washington provides, I think, a close parallel. It has either forgotten or does not want to remember the infantry of our economic army.  These unhappy times call for the plans of 1917  that build from the bottom and not the top down . . . that puts their faith in the forgotten man at the bottom of the economic pyramid . . . .”

In short, the people count and have been ignored by the rich and powerful people and corporations. The Depression needs to focus on the unemployed people if this country is to survive the Depression.

Today our nation is facing the real possibility of the loss of our democratic principles  as set forth in the US Constitution. Yet, little attention had been paid the  authoritarian private government HOAs that have succeeded from the Union; the HOA legal scheme has become an institution and accepted as “that’s the way it is.”  (See The HOA-Land Nation  Within America).

Are the homeowners in HOAs the forgotten men and women of our times?  I think so.  The evidence is quite clear that today, as occurred some 90 years ago, they have been abandoned by special interest corporations and government posing as friends of the people.  And there is not nor has there been a protector of the people since FDR and JFK.