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.

Where is the justice? AZ court gives HOA a “do over”

In Pinnacle v. Derailed (CA_CV 10-0604, Ariz. App. Div. 1, May 31, 2011) , the HOA objected to a sculpture because the homeowner didn’t get ACC approval. As we’ve seen many times before, the homeowner replies, “Show me where I must get to ACC approval when the governing documents are silent on the issue?”

The HOA attorney, CAI member and “defender of the faithful,” Scott Carpenter, made the following arguments, among others,

The [HOA] letter asserted without elucidation that the “governing documents prohibit this type of sculpture.” (Emphasis added.) Derailed responded that if the sculpture constituted a violation, many other violations were visible on neighboring properties and declined to remove the sculpture. . . . counsel cited Article 1, § 15 of the CC&Rs, which requires Committee approval of “all landscaping plans.”

The trial court, having reviewed the definitions of “landscaping, and in the absence of a “redefinition” of landscaping in the governing documents, held that sculptures are not part of the meaning of landscaping. The court, siding with the homeowner, wrote

the governing documents did not either require Derailed to seek approval for a sculpture or prohibit a sculpture. The court also found that the sculpture was neither “landscaping” nor a “structure or dwelling” and that the Association had not argued that it was an unsightly object.

The appellate court refused to “read tea leaves” and divine meanings not set forth in the governing documents, “we also “should not give a covenant a broader than intended application.” Carpenter then tried to argue that a sculpture was a structure, and that it failed to meet architectural designs. Both rejected. But, Carpenter failed to argue that the sculpture was unsightly, perhaps, if true, would have been a grounds to not allow the sculpture. “The Association did not characterize the sculpture as “an unsightly object.”

However, the court became activist and wanted a “do over” as it felt some issues weren’t considered by the trial court and it wanted the court to consider them.. A “do over”, a second “grab at the apple.” On legal “technicalities”, once again, the appellate argued that Derailed failed to object to Carpenter’s raising the issue of “unsightly” and claiming that Carpenter had “waived” this argument. Consequently, the issue of “unsightly” can be considered by the appellate court. In other words, Derailed did not argue that it was not an issue before the trial court and cannot now be considered at the appellate level. (I can’t count the number of times I mentioned that the homeowner must respond to all charges and claims made by the HOA, otherwise it might come back and bite them in the ass, like now.)

It should be noted that when the court asked at oral argument “which provision of the governing documents authorized regulation of sculptures”, Carpenter “cited Article 1, § 15 of the CC&Rs” and made no reference to Rule 2.28 of the ACC that pertained to “unsightly object.”What happened to“we also should not give a covenant a broader than intended application?” I guess the denial of the motion for reconsideration amounted to a bona fide trial court argument. And the court wanted an answer to the “unsightly object” issue that was not brought before the trial court,but apparently brought before the appellate court.

It seems that the court has leaned backwards to compensate for the failure of the HOA to specifically raise the question of “unsightly” at the trial level. How many times have I wondered what if these judges really sought to do justice and interjected themselves on behalf of the homeowner and said, in effect, “Hey boy, ya’ didn’t raise this valid and potentially winning issue of … So I’m sending it back to the trial court. Got my drift?”

As an aside, In March 2010 I spoke with the owner and, anticipating the HOA’s defense, I asked about the sculpture, “Was it acceptable”? He replied that it was the work of a known sculptor. I wonder how the trial court would decide? How much would it cost the HOA for Carpenter to pursue this uphill fight on “unsightly objects”?

As a second thoughtdid the court issue a memorandum and a restriction on the case being published and made a precedent? Generally, this occurs when the court feels no new opinions were made to serve to guide future cases.

CAI already spreading the fear of raised DFBLS fees for HOA disputes

In Scott Carpenter’s video seminar on 2011 Changes in the law for Arizona, May 23, 2011, Carpenter speaks of the possibility of raising the “steep” fees at DFBLS. He states that “in speaking with the people at DFBLS, they are considering changes in the fees” to meet the requires of the law that HOA adjudication fee would cover all costs.

 

The DFBLS website already has wording, “Filing fee amounts are to be determined.”

See more at  AZ DFBLS seeking to raise HOA fees already??

AZ Supreme Court denied hearing the Gelb Petition to restore ALJ adjudication of HOA disputes

Yesterday, May 24th, the Arizona Supreme Court simply DENIED hearing this Petition to vacate the lower court ruling that the Arizona agency, DFBLS, had violated the separation of powers doctrine when hearing  HOA disputes .  Disappointing, but not surprising given the new laws to take effect on July 20th, that addressed the separation of powers opinion. It still allows DFBLS to deny accepting complaints since ARS 41-2198(3), the statute authorizing DFBLS, was not vacated. It still stands.

Consequently, in the event that a complaint is filed on or after July 20th and DFBLS denies accepting the complaint, another challenge to the constitutionality of the law would be necessary. If DFLS accepts the complaint, rest assured that Darth Vader is ready with another challenge.

Why is this possible? Doesn’t the appellate court opinion serve as precedent and that’s that? NO, the door was opened by the Court! The Court in addition to its regular fashion of terse announcements, DENIED or ACCEPTED, added an order under its powers to do so, AZ Supreme Court Rule 111(g), that the Gelb decision was not to be published. Not being published means that it is not binding authority, or precedent. It seems then that the door is open and res judicata – already decided – doesn’t apply.

Why allow another shot” at constitutionality? Maybe, as I have argued, the arguments in support of the law relied on the same two cases, Cactus Wren and Hancock, accepted as controlling in both Gelb and in Waugaman (in the only other case that involved a decision, the superior court decision Troon v. DFBLS, Waugaman, LC2007-000598, Maricopa County), left something to be desired. Like the entire body of constitutional law and on the administrative procedures act concerning the acceptance of quasi-judicial authority of executive agencies. Yes, sharing does occur, and none of the applicable rulings were based on the extent of the agency’s regulatory functions, as the DFBLS cases were, (Gelb essentially followed the arguments in Waugaman).

July 20th will be the next phase of the fight by homeowner rights advocates for due process and the equal protection of the laws. The AZ Supreme Court just “punted.”

See AZ Supreme Court to decide whether  or not to proceed on Gelb and HOA adjudication

Before the HOA Syndrome there was The Milgram Experiment

The Milgram Obedience Experiment, The Perils of Obedience, By Kendra Cherry, About.com Guide

Why did so many of the participants in this experiment perform a seemingly sadistic act on the instruction of an authority figure? According to Milgram, there are a number of situational factors that can explain such high levels of obedience:

  • The physical presence of an authority figure dramatically increased compliance.
  • The fact that the study was sponsored by a trusted and authoritative academic institution led many participants to believe that the experiment must be safe.
  • The selection of teacher and learner status seemed random. [no vengeance factor]
  • Participants assumed that the experimenter was a competent expert.
  • The shocks were said to be painful, not dangerous.

Milgram wrote, “Ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a terrible destructive process. Moreover, even when the destructive effects of their work become patently clear, and they are asked to carry out actions incompatible with fundamental standards of morality, relatively few people have the resources needed to resist authority” (Milgram, 1974).

Milgram’s experiment has become a classic in psychology, demonstrating the dangers of obedience.

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The Milgram Experiment of 1961 was conducted to answer another question regarding the rise of Hitler and the Nazis (They Thought They Were Free, Milton Mayer, 1955). Milgram had “teachers”, authority figures, inflict electric shock on”students” who gave the wrong answers. The students, part of the experiment, did not receive any shocks but responded in greater and greater degrees of mock pain. The teachers were acting on instructions of the experimenter, the “authority” figure.

The experimenter issued a series of commands to prod the participant along:

  1. “Please continue.”
  2. “The experiment requires that you continue.”
  3. “It is absolutely essential that you continue.”
  4. “You have no other choice, you must go on.”

In other words, the experimenters wanted top know, “If a person in a position of authority ordered you to deliver a 400-volt electrical shock to another person, would you follow orders?”

“When Milgram posed this question to a group of Yale University students, it was predicted that no more than 3 out of 100 participants would deliver the maximum shock. In reality, 65% of the participants in Milgram’s study delivered the maximum shocks.”

Jump to today and the New America of HOA-Lands. Translate the experimenter as the HOA attorney or dictatorial HOA president or manager; the students as the homeowners; and the teachers as the go along board, ACC and the non-dictator presidents. These “go alongs” act on the “advice”, instructions or urgings of the above  authority figures,  the  “experimenters.”

It is important for advocates to know that, “Later experiments conducted by Milgram indicated that the presence of rebellious peers dramatically reduced obedience levels. When other people refused to go along with the experimenters orders, 36 out of 40 participants refused to deliver the maximum shocks.”

That’s a resounding,

STAND UP AND FIGHT FOR YOUR RIGHTS! SPEAK OUT! CREATE REFORM GROUPS!

HOA Syndrome survey: YES, it exists!

The CBS TV Phoenix affiliate, KPHO reporter asked in its HOA Syndrome coverage, What could someone do to escape the HOA Syndrome? The only answer provided as to “move out”.

That was a completely unsatisfactory solution! In a hearing on HOA reform bills in this past session, a legislator stated that 94% of all new homes was in an HOA. A completely unsound solution not based on the facts.

Furthermore, it rewards the guilty parties. The government was not called upon to do something to stop this disgraceful condition in what the government continues to tout as “the next best thing to Mom’s apple pie.” There was no call for the immediate adoption of a consumer advisory like a Truth in HOAs Disclosure Agreement. There was no call for ADRE, the real estate department, to enforce its rule on material disclosure, R4-28-1101. There was no call for the Legislature to enforce HOA laws and to hold the HOA accountable under the laws, so homeowners can feel that there was someone on their side. That there was a viable method to ease the pain. KPHO offered no such call except to “move out.”

HOA SYndrome survey

KPHO’s internet survey, “Question of the Day,” asking whether the Syndrome does really exist has received, after 24 hours, a steady 67% YES replies from respondents. Perhaps this will be an awakening call that the legitimate grievances of homeowner rights advocates over the years are valid! And the only reply from the national pro-HOA trade lobbying group, CAI was a faint, “But, it’s not officially recognized.” Not even a word that something has to be done to make its claims of happiness and harmony a reality. Not a word!

As I wrote about not moving to Arizona, “You are on your own!”