Author: HOAGOV

1.   MYTH:   The HOA attorney represents you, and will assist you in your claims of wrongdoing against the board.

REALITY:  The attorney represents the HOA as reflected by the board. He defends the board.

2.  MYTH:          In spite of your contractual CC&Rs, your civil and fundamental rights are still protected by the Constitution. 

     REALITY:    As a private contract, your CC&Rs have priority over the Bill of Rights, unless those particular rights are so enumerated by the US Supreme Court, such as the Fair Housing Act.  People have the freedom to contract and can surrender their rights as happens, many times unexpectedly, as stated by the CC&Rs.

Read all the Myths

A bill of attainder, prohibited along with ex post facto laws by the US Constitution, has its counterpart in HOAs, those independent principalities operating outside the Constitution.  A bill of attainder is a special legisaltive act prescribing capital punishment, without a trial, for a guilty person.Here’s an example of the unchecked power and lawlessness within HOAs: 

The Arizona experiment in HOA justice for homeowners, using the Office of Administrative Hearings (OAH) to adjudicate disputes, is a rousing success!  The ALJs are treating homeowners with respect, and allowing homeowners to present their complaints under OAH rules —  a far cry from the hostile attitude in the civil courts.   

By my count, there have been 12 decisions as follows, giving the homeowners an unprecedented 50% success ratio!! 

HOA win:  5

HO  win:   5

spilt:          2

These first results of ALJ decisions clearly refute CAI’s argument that homeowners who cry about abuse are just touble makers who don’t know how to get along! 

We need OAH to continue its good work bringing a more level playing field to HOA adjudication at an attainable cost of $550. The fee increase, to $2,000 to file a complaint, by the agency, DFBLS, amounts to a poll tax to prevent justice and to stifle complaints against HOAs. OAH has exposed the HOA abuse that advocates have long been attempting to stop.  The reasons are obvious from the results of this rendering of due procees by impartial OAH tribunals.

In a historical first, the newly instituted Arizona law that allows HOA complaints to be adjudicated by the Office of Administrative Hearings (OAH) resulted in a penalty order against the HOA for the intimidation of the homeowner. In OAH case # 07F-H067006-BFS, the ALJ decision included:

Many homeowners will tell about HOAs and their attorneys giving dire warnings about the cost of litigation and the payment of attorney fees to scare off complaints against the HOA.  Last year in Arizona, an HOA attorney was given an informal sanction for his attempt to stop a Bar complaint by reducing the fees that he would charge as the HOA attorney. The judge hearing the HOA complaint wrote,

After the Court indicated that there would likely be no award of fees in this case, Defendant was billed approximately $6,000 for Plaintiff’s fees. Though this billing was retracted after Ms. M brought the matter to the Court’s attention, Mr. S continued to demand that she “settle” the case for $2,000.00 – more than 400% of the amount actually owed. Coupled with this monetary demand (which counsel could not justify at today’s hearing) was a demand that Defendant drop complaints that she had filed with the State Bar of Arizona against Mr. S and with the State Board of Accountancy against a member of the Association.

It is unfortunate, however, that homeowner justice and the ability to obtain a fair adjudication by OAH has been threatened by the recent requirement of an unheard of $2,000 filing fee, which is being challenged pursuant to APA statutes.  It appears that the HOA special interests are afraid of the truth getting out about HOA abuse, as has been repeatedly charged by homeowners. 

As James Madison wrote in The Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, no internal or external controls on government would be necessary. “

Preamble to the US Bill of Rights

“THE Conventions of a number of States, having at the time of 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 insure the beneficent ends of its institution:”

PVTGOV Proposed Homeowners Bill of Rights

1.      The HOA is subject to the Fourteenth Amendment to the US Constitution as are all over government entities subject.

2.      The HOA, and HOA directors, officers and committee chairs are subject to the municipality and state laws wherein the HOA resides.

3.      No “ex post facto” amendments to the governing documents shall be permitted without the consent of all homeowners.

4.      The taking of a homeowner’s property rights by the HOA as a result of an amendment to the governing documents or rules and regulations, if any, without a judicial order and without fair compensation is prohibited.

5.      The HOA right to foreclose on a homeowner as a result of failure to pay any fines, penalties, costs or other charges not a bona fide assessment is prohibited.

6.      Recognizing that the HOA does not stand in the same position as a mortgagor that has a substantial monetary investment in the home, or in the case of a mechanic’s lien where the homeowner possesses greater powers over the mechanic, foreclosure shall not be permitted for amounts less than 80% of the fair market value of the home, with the balance of the sale proceeds belonging to the homeowner.

7.      The directors, officers and committee chairs shall be residents and members of the HOA community.

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