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.

AZ free speech bill HB 2052 on track

The substantive Arizona homeowner reform bill, HB 2052, has been assigned to the Senate GOV committee. No hearing date has yet been assigned.  In short,

“Overview Stipulates that a unit owner’s association or a planned community association (association) may not prohibit a unit owner or member (member) from peacefully assembling and using private or common elements of the community.”

See Arizona HB 2052 restores homeowner constitutional speech protections

Effective presence in support of legislation requires immediate support to the assigned committee to let the members know before the public hearing. It is this private committee time where decisions are made. This advice can be found in Colorado’s Morgan Carroll’ book and discussed in Colorado senator’s guide to effective HOA legislation.   

Many may not remember Ugenti’s conduct in 2013 but I have the hope that justice will prevail for homeowner with 2052.

“The loss of these perceived benefits lies not in this victory, but in the acts of Rep. Ugenti who is responsible for attaching, at the last legislative session, her defeated HB 2371 to SB 1454.  SB 1454 now became a bill with two subjects in violation of the constitution.”

Here are the committee’s email addresses.  AZ Senate GOV committee 2021

Sonny Borrelli  sborrelli@azleg.gov 
Juan Mendez  jmendez@azleg.gov 
J.D. Mesnard  jmensnard@azleg.gov 
Jamescita Peshlakai  jpeshlakai@azleg.gov 
Warren Petersen  wpetersen@azleg.gov 
Martin Quezada   mquezada@azleg.gov 
Kelly Townsend, Vice-Chairman,  ktownsend@azleg.gov 
Michelle Ugenti-Rita, Chairman   mugenti-rita@azleg.gov 

Arizona HB 2052 restores homeowner constitutional speech protections

The Arizona HB 2052 (2021)  bill (sponsored by Rep. John Kavanagh) is an update to Arizona’s SB 1412[i] which died in Rules last year as a result of postponements due to the COVID-19 virus.  Essentially, its

“Overview Stipulates that a unit owner’s association or a planned community association (association) may not prohibit a unit owner or member (member) from peacefully assembling and using private or common elements of the community.”[ii]

The list of AZ GE committee RTS names against HB 2052 shows only AACM and not CAI, who I believe is hiding from severe criticism of its support for unconstitutional HOA legal scheme.[iii]  However, the long time activist CAI member firm, Carpenter Hazlewood et al.,  with several lawyers also being CAI activists, opposes this bill that seeks to restore political free speech to members in HOAs that was taken away by ab initio  — from the beginning making the agreement null and void from the start — unconstitutional declarations of CC&Rs.

“We encourage our association clients to review HB2052. We encourage all board of directors to contact their representatives to discuss its association’s position on HB2052. If you have any questions for Carpenter Hazlewood about HB2052, please feel free to contact the firm’s Legislative Team.”[iv]

CAI dominates HOA board as a result of its CAI School of HOA Governance[v] indoctrination over the years.  What is your board going to do? Stand by CAI’s opposition or obey its legal duties to do right by the members.[vi]  It can only reject this bill on the grounds that it feels granting its members constitutional rights of free political speech — that all other Americans have —  will harm the HOA government.

WHAT DO YOU SAY?

Do not allow your board to speak for you before government committees without a vote of all the members granting such powers.  I have no doubt, based on my years of dealing with CAI on constitutional issues, that its email has been sent to your president your manager, and directors.

Stand by the Constitution!  Contact your state representative and urge him/her to support HB 2052, which will soon come to a vote in the House.

Looking at the role Washington must play, see America cannot be completely unified with HOAs.

References

[i] See in general, AZ SB 1412 reflects move to HOA constitutional reforms (Jan. 2020); Authorities for protected HOA political speech — SB 1412 poll (Jan. 2020); AZ fair elections reform bill SB 1412 moves on (May 2020).

[ii] HB 2052 summary.

[iii] In the Twin Rivers case, the CAI amicus brief to the NJ appellate court warned about “the unwise extension of constitutional rights to the use of private property by members [in HOAs].”CBTR v. Twin Rivers, 929 A.2d 1060 (2007); In reply to my amicus curiae brief, CAI responded with, “It is clear that the amicus curiae simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.”(CAI/Smith amicus response.); CAI maintains HOAs are protected by and do not violate the Constitution — not so!

[iv] “CHDB Legislative Alert!!! AZ House Bill 2052,” Carpenter, Hazlewood email, January 21, 2021.

[v] CAI School of HOA Governance: The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[vi] In my sampling of CC&Rs of both large and small HOAs I found boilerplate wording that focused on “maintaining property values” or “for the overall development, administration, maintenance and preservation of the Properties.” Almost all, but not everyone, contain a statement directed toward the member: “shall inure [take effect] to the benefit of the member” [or “each owner”], and “be mutually beneficial.” I came across this one-sided statement: “intended to benefit the Association.” The most liberal and progressive statement of purpose mimics the Preamble to the Constitution “to promote the health, safety and general welfare of the residents of the Properties” (the general welfare clause). The inclusion of “health and “safety” are redundant in that “general welfare” includes these concerns. See “HOA contractual Mission” in Restructuring HOAs – intents and purposes.

NV supreme court upholds HOAs as public forums

Last week the Nevada Supreme Court, in Kosor,[i] citing California Davis-Stirling law and Damon[ii] and Kite Hill[iii] opinions, affirmed HOAs as public forums. Issues relating to HOA governance are matters of public interest protected by free political speech.

SPOTIFY Audio PODCAST of post

In short, legitimate and valid criticisms of your HOA and its president and board are protected from HOA lawsuits of defamation and libel. At heart: Are the statements made in good faith and truthful?

Kosor filed an anti-slapp motion in defense that argues that the statements at issue were protected under free public speech —  statements that were of general interest to the public.  In summary, here’s what the Court upheld, following California’s rulings and law.

“Accordingly, we conclude that Kosor met his prima facie burden to demonstrate that the statements in question were all made in public forums on a matter of public interest.

“Nextdoor.com post qualifies as a public forum for the purposes of anti-SLAPP protections. . . .these steps [Kosor’s statements] do not seem to differ significantly from that which might be required to view posts on Facebook; that is, a post on Nextdoor.com is as compatible with expressive activity as one on the other platform, which we have already held can support a public forum.

“The HOA here is no less of ‘a quasi-government entity’ than that in Damon, ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”

“it appears that Kosor’s post, like his HOA meeting commentary, campaign flyer, and printed letter, sought to open conversation among Southern Highlands community members and enlist their participation in the community’s decision-making process.

Does your state protect your right to dissent in an HOA?  Why not?

References

[i] Kosor v. Olympia Companies, NV No, 75669 (Dec. 31, 2020).

[ii] Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205 (Ct. App. 2000).

[iii] Cohen v. Kite Hill Cmty. Ass’n, 191 Cal. Rptr. 209 (Ct. App. 1983).

HOAs as ‘windmills’

This is my statement on the rejection of my efforts to restore constitutional protections to HOAs by a society suffering from a decay and decline in ethical, moral, and democratic values.

The reality of the HOA “windmills”

This metallic wall sculpture has been hanging on my wall for some 43 years. Bought at an arts and crafts show in a small town in Westchester County, NY.  I thought about selling it some 7 years ago but decided to hold on to it for some reason or other. Recently, I’ve come to the conclusion that acquiring it was a sign of my destiny, which turned out to be my 20 years of activism for substantive constitutional HOA reform legislation.

Most people will recognize the sculpture as the delusional knight Don Quixote doing battle against ferocious giants –windmills. 

However, Miquel de Cervantes’ Don Quixote de La Mancha (published in 2 volumes in 1605 and 1615)  has  deeper meanings relating to persons of high morals and ideals in a society that has  lost the values of chivalry and honor – of doing the right thing and coming to the aid of others. 

Cervantes portrays Quixote as being out of touch with the reality of his times.  As for my efforts, the windmills are real. They are HOAs. There are numerous reviews of Don Quixote revealing Cervantes’ deeper meanings as quoted in several examples below:

“He had the moral courage in him to go beyond the ordinary in spite of those around him thinking of him as an outlier. He could imagine what others couldn’t — the first step to greatness and leadership.

“After Quixote had imagined what was possible, he had it in him to commit to it and believe in the purity of his goals.

“The novel’s message that individuals can be right while society is wrong was considered radical for its day.”

I have written about the culture within HOA-Land; I have written about the decline and decay in society’s moral, ethical, and democratic values. (See Constitutional Local Government and HOA Constitutional Government). For the most part, my analyses and warnings have been ignored by elected officials and politicians at all levels, by the public at large, and by a large majority of homeowners living in HOAs. So, it appears that like Don Quixote,  I am out-of-step with the reality of these times.

But it doesn’t make me wrong!  Historians will judge.

Failing to achieve substantive HOA reforms

Is there a way out?  Definitely yes!

It is not by going to state legislatures to be repeatedly rejected, or given token reforms but with no substantive redress of grievances. It is not by repeatedly expecting the courts to do homeowner justice in spite of the strong stare decisis precedent of pro-HOA laws and public policy favoring HOA-Land. It is not by expecting law colleges to provide a balanced educational program in law for students that includes HOA constitutionality.

And it is not by hoping that the media — granted special 1st Amendment protections to inform and educate the citizens on political matters — will measure up and so present the whole HOA truth that has been so long hidden from the public.

As a result of my 21 years of activism and advocacy for HOA constitutionality, and my education and detailed research, I have come to understand the greater social and political forces at work. These forces that have led to the current culture and environment surrounding the HOA legal scheme and structure. They are detailed in my “The HOA-Land Culture.”

Read more at Cult behavior within HOA-Land and Plan to Restructure HOA model.