Author: HOAGOV

The implication (Restatement Third, Property, § 3.1) is that a servitude can be consistent with public policy if it reasonably violates a fundamental constitutional right, and is therefore valid.   An attempt to find a clarification brings the reader to “comment h”, which reads in part, “The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law.”

    How can a covenant, a servitude, that violates the US and state constitution not be illegal and invalid? It cannot, unless the courts adopt the position that servitudes are the supreme law of the land.  The courts have allowed amendments to the CC&Rs to deprive a homeowner of his property without compensation, and have validated ex post facto amendments.

Read complete eEditorial at Supreme Law.

Pursuant to statute, a request was made for an agency review of the fee to file a complaint against HOAs.  Last year, a new law allowed complaints to be filed against HOAs and  heard by the Arizona Office of Administrative Hearings (OAH). This was an effort to level the playing field so homeowners can have complaints heard without having the HOA attorney utilize the Rules of Court against the less informed homeowner.

The basis for the request to the Director of the AZ Dept. of Fire, Building and Life Safety (DFBLS) (that receives the complaint filing), included,

There have been no amendments by the legislature to alter this amount, nor bills passed into law. In fact, on November 15, 2006, pursuant to Sec. 12 of Sess. L. ch. 324 (2006) a review was held by JLBC whereby it was decided not to change the fee amount,

While 2198.01(B) allows DFBLS to charge a fee, the specific amount is not set in the statute: “The petitioner shall file a petition with the department and pay a nonrefundable filing fee in an amount to be established by the director.” It is unreasonable to believe that it was the intention of the legislature to allow the director of DFBLS an open-ended freedom to “pick any amount” he may so decide.

Setting a fee is considered a Rule under ARS §41-1001, paragraph 17, and consequently, is subject to the rulemaking procedures of APA under ARS §41-1030(A). A review of the Administrative Registers from November 15^th to date shows no notice or preamble filings for a change in this fee amount.

In short, the statute permits the Director to set fees, but the APA rulemaking statutes tells him how to do it – public notice and hearings.

Statements made by the Director refer to a few cases taking longer than anticipated, raising the cost of the administration of justice. This position has no bearing on the authority of the Director to set a fee, since the statutes were established to permit public notice and input to the setting of any agency rule or fee.

OAH heard some 7,360 cases last year with a budget of $1,165,900, or $158.41 per case, far below the original fee of  $550 and making the new $2,000 fee outlandish – a “poll tax”.  There were only 22 HOA cases, all filed by homeowners seeking justice, when this fee increase was put into effect.  Agencies that account for 78% of OAH adjudications pay no fees!

Advocates see this increase as another effort to silence the problems with HOA private governments.  Advocates continue to hope that the HOA mess would be cleaned up by legislators at the insistence of public interest organizations demanding a return to good government.

Quite unexpectedly, as of this morning, the Arizona Dept. of Building, Fire and Safety increased the non-refundable filing fee from $550 to $2,000, effective until April when it will once again be reviewed. This is outrageous, and an attempt to stifle homeowner justice as revealed by my case summaries. It reminds me of the 1950s Poll Tax in the South to prevent blacks from registering to vote.

Word is from BFS that, out of some 7,000 – 8,000 a year heard by OAH (Office of Administrative Hearings), the 22 cases to date in the first 5 months during which OAH could hear HOA disputes are overburdening the judges, who need to spend extraordinary amounts of time finding out how to make a decision on HOA disputes. So, these 22 cases require a 400% increase in order to provide justice to homeowners against HOAs, while all other civil complaints can be funded out the state coffers. This is outrageous! This is an attempt to coverup problems created by pro-HOA legislation and unconscionable adhesion contracts known as CC&Rs.

In 2004, when a bill was proposed to have JP courts decide the disputes, fears of outlandish costs that would overpower the JPs caused the bill to be defeated. Well, it turns out to be just some 50 cases for the year. I guess HOAs are just to much for our system of justice to handle, whether JP or OAH, and we should just let HOAs continue to be independent principalities operating outside the Constitution and state laws.

OAH adjudication has been working to bring justice to homeowners against abusive HOAs. OAH has had the additional benefit to expose the types of injustice, and attitudes of HOA boards and attorneys that are quite contrary to their pronouncements before the legislature and the media of a democratic community working to create vibrant, harmonious communities.

This filing fee increase should and must be paid for from state coffers to remove this scandalous bar to justice.

(Originally posted February 16, 2007).

Ever wonder how a territory was granted authority from the federal government to be a state?  Here’s how Colorado got its authority. Contrast this to CCIOA  (UCIOA), CRS 38-33.3.101 et seq, that reflects the state’s entwinement in the operation, the encouragement and support of planned communities, and its coercion of the homeowners (See Brentwood citation below).  In other words, how Colorado establishes authoritarian, private governments that are treated as independent principalities. Let’s look at the misleading and somewhat defiant and arrogant Annotation to CCIOA.

Over 100 years ago, at the turn of the 20^th century, the unregulated abuses of corporate America became the focus of the Progressive Movement.  Essentially, government intervention was found to be necessary to protect Americans from corporate excesses – sweat shops, health concerns in meat processing plants, child labor laws, etc.  Without regulation, corporate America was acting as Adam Smith said it would: in their own self- interests. 

Today, with respect to planned community and homeowner association abuse, including the loss of constitutional protections, the cry of the special interest corporate America of “no government interference” is a misplaced ideological argument to avoid the same necessary reforms that created the Progressive Movement.  Current public policy and state laws are biased to protect the legal structure of HOAs that deprive Americans of their constitutional protections against such abuse.  The most glaring being the refusal to subject HOAs to the same restrictions as are all other municipalities, including subjecting HOA directors and officers to the same laws that govern our public officials.  None of these private constitutions, the CC&Rs, have ever included a provision that the HOA was subject to the 14^th Amendment of the US Constitution, or included a Bill of Rights. 

Some examples:  the current state of affairs permit substantial financial penalties against homeowners who violate the CC&Rs, yet are silent when it comes to violations by HOA directors and officers, and their agents, the management firms.  The punishment with respect to foreclosure is equivalent to excessive punishment in violation of the US Constitution.  And, the acceptance of ex post facto HOA “laws”, amendments to CC&Rs, that render the initial CC&Rs a meaningless protection for homeowners.

Where are the reformers today?  Sen. McCain, in an address before The Federalist Society, said:  “that government should do only those things individuals cannot do for themselves, and do them efficiently.”  Since political correctness is in vogue lately, is it not politically correct to seek government intervention where it is necessary and warranted?   Or, is it morally and ethically correct for our government to protect those who are abused by the powerful corporate special interests?

Where are the progressive reformers?