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.

No unreasonable HOA expectations

A healthy democratic society cannot be said to exist without  a representative government making fair and just laws. A practical, real-life approach gave rise to the legal concept of reasonableness in an attempt to classify and designate conduct underlying a fair and just administration of the law. The reasonableness doctrine has finally come to HOA disputes in regard to reasonable expectations.

CAI has opposed the doctrine of reasonable expectations as too vague, too iffy, and disrupts the order and structure of the HOA “community.” In its amicus brief CAI argued that “reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants.”

The full commentary is a lengthy legal exposition examining 3 Arizona cases on the application of a homeowners’ reasonable expectation at time of purchase. Read it here: Reasonableness public policy. “reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants

Competency of judges; HOA reform policy

I offer the following commentary on  the detailed 10-page Rosie Manins’ article[1] who quotes David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts.  I present relevant quotes that provide an understanding of the realities of a judge’s competency. As we well know with respect to HOA-Land lawsuits, their competency is in question as well as their difference to alleged expert opinion and dominance by CAI attorneys.

My annotations are in square brackets [ ].”

“’The lack of a clear training path for the vast majority of judges in the U.S. undoubtedly increases the likelihood they’ll stray into troubled waters,’ said David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts. A former prosecutor, state court judge and executive director of the Arkansas Judicial Discipline and Disability Commission, Sachar told Law360 ‘that the transition from attorney to judge is difficult’.

“’Most of the time we’re elected or appointed as judges, and one day you’re a lawyer practicing probate law, and the next day you’re on the bench. We have this really important piece of our republic, and yet we don’t have a solid training system for preparation.’ Sachar said.

“’The vast majority of the judges I know are honorable people who work hard, and they got there by ascending to a level in their own profession,’ he said. ‘Training is an arm of an ethical judiciary. It hurts confidence when you walk into a courtroom and the judge doesn’t appear to know what they’re doing.’”

“You can’t just wave a magic wand and say [to a newbie judge], ‘Here’s how all courts are going to do this,'” he said. “You’re stuck with ‘Hi, welcome to the judiciary. Here’s a couple of bench books. Follow the path of people you saw before you.'” [And guess who that may be?]

[As to the political side of judicial appointments,]

“’Now, as money pours into the political process behind many judicial appointments and elections, there is an ever-present danger of judges taking the bench without the necessary skills and for the wrong reasons’, Mann[2] said. ‘You really have to kind of narrow this down to what has the political process done to judicial selections,’ Mann said ‘Given the pressure that is being put on the independent judicial branch of government, we need to start thinking about early preparation for judges and what skills are needed to be an effective, impartial judge’ [And CAI is outspoken on its efforts to influence judges and legislators[3]]. ‘And it may be that it’s producing younger, more political judges that have less qualifications and experience to be a judge.’

It is my sincere hope that advocates will understand that HOA reform legislation is political in nature and that they are facing a powerful Evil Empire that dominates the playing field. Advocates must lose their fear and retaliate using the abundance of legal authority on their side —  case history, the existing laws, and CAI’s own words, statements and attitudes.

They must come armed before the courts to chasten and hold judges accountable for their lack of HOA knowledge and their dependency on the CAI promoted business judgment rule[4]. But the advocates must first become educated themselves.

Advocates must advocate – publicly recommend and support HOA reform policy before state legislatures, county planning boards, the media, and homebuyers at large —and not just post among themselves on social media.  Patrick Johansen, Steve Horvath, Raelene Schifano, Jim Lane, Deborah Goonan,  and  others have started programs to influence the decision-makers. I congratulate all of them.

[1] As posted by Joe Homes post in HOA Fight Club (FB), Is The State Court System Setting Judges Up To Fail? (Rosie Manins · 2023-10-27).

[2] Judge Julian Mann III, chair of the American Bar Association‘s Judicial Division and retired Administrative Law Judge. 

[3] “Community associations should build effective relationships with decision-makers—public officials at all levels of government and regulatory agencies. Association attorneys should advocate educational programs for judges and other attorneys to foster deeper understanding of the community association housing model.”  (“Public Policy Paradigms,” Community Next: 2020 and Beyond, Community Associations Institute. Notable Trustee member is Vice Chair J. David Ramsey, esq., Becker & Poliakoff pa, Morristown, NJ, who is very active in ULC and UCIOA revisions.)

[4] See in general, Business judgment rule; understanding the courts.

Georgia court: A Milestone for Fair and Free Elections

Jade Whitter posted  comments in Home Owners Association (HOA) Information (Oct. 27, 2023, FB)[1], on a Georgia appellate case [2] concerning the fundamental right to fair HOA elections. At issue here is the imposition of a quorum on board elections although the documents were silent on a quorum requirement.

Whitter wrote,

“A Milestone for Fair and Free Elections. The Court’s ruling specifically eliminates the draconian measures that obstructed free and fair elections, namely the use of a quorum as a prerequisite for a valid election. This is significant because ‘lack of quorum’ has been used to invalidate annual elections and keep many of the same individuals serving on the Board.”

The homeowners’ attorney praised the homeowner group,

“It should not be taken lightly the dedicated grass roots efforts that it took to bring this coalition of homeowners together under a unified call for fair and representative elections. I am in awe of the W.E Concerned Homeowners’[3] leadership team that was able to coordinate this effort.”

While in the public domain there are no quorum requirements, there is a downside to no HOA elections quorum. A small, highly active and united clique can take control of the HOA where there is general apathy among the homeowners, or their conduct can be described as a cult following – the HOA can do no wrong. BEWARE!

I cannot stress how vital free HOA elections are to a democratically run HOA where constitutional and fundamental homeowner rights need protection. I commented on fair and democratic HOA elections 0n 2 occasions.[4]

“I cannot overstate the profound damaging effect of the boilerplate CC&Rs covenants – the HOA-Land fair elections doctrine — that define the highly inadequate process and procedures alleged to be fair elections and approved by the member. In a democracy, the fair elections doctrine is the means for the expression of the will of the people and the consent to be governed by the HOA’s members. It is the fundamental basis for a valid consent to be governed. Unjust BOD biased election procedures deny the legitimacy of the HOA-Land doctrine.”

“HOA members have been repeatedly told that they can change things in their HOA by voting for board members and even by changing the governing documents; that HOAs are democratic because members can vote to make these changes happen.  Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy. You are being conned!”

[1] See Home Owners Association (HOA) Information.

[2] Willis Et Al. V. Water’s Edge, A23A0868 (Ga. Ct. App.), Decided: October 24, 2023.

[3] Concerned Homeowners is a public FB group.

[4] See in general, Reorienting the HOA board – fair elections and HOA Common Sense, No. 5: Democratic elections.

 

AZ CAI attempts to unduly influence the courts

In Arizona’s Thompson v. Albertson,[1] the Arizona Supreme Court ruling in Kalway[2] was put to the test and challenged by CAI in its amicus brief.  Kalway held that

“The general-amendment-power provision and general-purpose statement were not sufficient to provide notice of future amendments. We interpret such restrictions to reflect the reasonable expectations of the affected homeowners.  We hold that a general-amendment-power provision may be used to amend only those restrictions for which the HOA’s original declaration has provided sufficient notice.”

The appellate Court addressed CAI’s 42-page amicus brief, which the court does not usually perform but special attention was warranted.  In short, CAI sought the appellate court to modify the AZ Supreme Court’s ruling that the case was a memorandum and not mandatory precedent. And as such, it did not consider its decision as mandatory precedent.  Therefore, the ruling applied only to the case at hand.

Not the first time CAI attempted to influence the Court. In 2011 CAI AZ had tried 3 times to have the court’s decision that OAH adjudication of HOA disputes was unconstitutional. I had filed as pro se amicus that was accepted and resulted, as I firmly believe, resulted in changing the appellate court decision as an opinion to a memorandum without precedent standing.

“The [AZ Supreme] 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.”[3]

[In Thompson] Discussion, Section IV. The Amicus Curiae Brief

“¶31 Community Associations Institute (‘CAI’) filed an amicus curiae brief requesting ‘clarification’ and possible ‘limitation’ of Kalway. Whether Kalway should be clarified or limited is a question for our supreme court. . . .  (‘The lower courts are bound by our decisions, and this Court alone is responsible for modifying that precedent.’). We therefore decline CAI’s invitation to reach beyond the specific facts of this case to provide ‘direction and guidance.’”

Simply said, the appellate court rejected CAI’s attempt to overrule the AZ Supreme Court.

####

Thompson v. Albertson, No. CA-CV 23-0082 (Ariz. App. Div 10 10-24-2023

AMICUS CURIAE BRIEF OF COMMUNITY ASSOCIATIONS INSTITUTE (CAI) (FILED WITH THE WRITTEN CONSENT OF THE PARTIES)

Mark Lines – #020553

SHAW & LINES, LLC

Counsel for Community Associations Institute

First, CAI continues to misrepresent itself and claim it’s “serving more than 74 million homeowners . . . CAI is representing not only itself, but also its tens of thousands of members on this important issue.” CAI fails to inform the Court of that the homeowner “volunteers” constitute an estimated 32% of its membership and have an estimated meager 14% representation in its governing board of trustees.[4]

CAI membership, at most, consists of a miniscule .05% (.00048).

Of the 33,000 CAI members, a minority of some 10,800 are ‘volunteers’ and not attorneys or managers.

‘Volunteers’ (CAVL) represent a miniscule .016% (.00016) of HOA members.

Second, the CAI argument. The AZ Supreme Court decision in Kalway[5] made reference to the vague term, “reasonable expectations” when considering the validity of HOA amendments. (The supreme court realized that the common procedural covenant that any amendment passed by the necessary vote was valid regardless of its impact on the members).

What the original declarant might have intended, and what owners first reasonably expected of the eventual use and improvement of those lots must be considered in the context of time, and reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants.

“Indeed, a “covenant can be amended to refine it, correct an error, fill in a gap, or change it in a particular way.” Kalway,  . . . That’s the power and right of the owners collectively, through a majority vote, if the dictates of time demand it.”

CAI had argued against the reasonable expectations test as being too vague when all was clear and precise in the existing amendment procedures.  The Court rejected the amicus brief because  CAI had the audacity and the arrogance to ask the appellate court to overrule a supreme court decision.  Unreal!

There cannot be change without change

As long as advocates remain silent and fail to criticize CAI’s misrepresentations —
“candor to the tribunal” ethical code violations —  before the court, the legislature, and the media CAI will remain the voice of HOA-Land.

“To succeed you must accept the world as it is  and rise above it.”

[1] Thompson v. Albertson, No. CA-CV 23-0082 (Ariz. App. Div 1)  10-24-2023.

[2] Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532.

[3] (See AZ Supreme Court denied hearing the Gelb Petition to restore ALJ adjudication of HOA disputes).

[4] See “Why CAI is the Evil Empire.

[5] Supra n. 2.

CA’s condo-mania: AB 1033 allows ADUs to be 2-person condos

A very disturbing 19-page California bill, AB 1033 (Ch. 752)[1], became law this week that extends HOA-Land with respect to Accessory Dwelling Units (ADU)[2]. The rationale seems to be to support low-income housing given the scarcity of California,  and gain income for retired people as well. It allows the property owner to have a livable unit (ADU) on his property  but requires  the owner to form a two-person condo on what was his single-family property. The accessory unit can then be sold as a condo unit subject to the Davis-Stirling condo laws. Why, I ask???

In order to make this plan work a complicated series of amendments were added. In other words, a planning board, for instance, is given authority to allow this approach to housing, along with changes to building requirements, codes, etc.

The Legislative Digest states,

“This bill would, in addition, authorize a local agency to adopt a local ordinance to allow the separate conveyance of the primary dwelling unit and accessory dwelling unit or units as condominiums, as specified, and would make conforming changes. By imposing new duties on local governments with respect to the approval of accessory dwelling units, the bill would impose a state-mandated local program.”

To me, this seems  like a lot of about nothing, unnecessarily complicating property rights and housing.    BUT, extending the fragmented HOA-Land and further eroding adherence to the Constitution – more individual rulers functioning outside the Constitution. It goes beyond home rule laws and the medieval fiefdoms.[3] There is no oath  of allegiance to support the Constitution as the supreme law of the land. And condos pay minimal taxes as a non-profit.  So, what’s the story??

To paraphrase Jack and the Beanstalk, “Fee-fi-fo-fum, I smell the blood of a CAI man.”  CAI-CLAC is the very powerful and highly active CAI legislative action committee (LAC) representing all CAI California chapters. And then there’s Echo,[4] whose membership structure duplicates the  CAI membership structure.

Who says CAI is not a coercive monopoly?[5] Take a close look at California again. Are their any voices in support of homeowners to compete with CAI?  No, sorry to say, although one group has had some influence on legislation but it does not stand close to the overall impact of CAI on events concerning HOA-Land.

NOTES

[1] Bill Text – AB-1033 California Family Rights Act: parent-in-law: small employer family leave mediation: pilot program.

[2] ADUs come in all shapes and sizes – for example, a converted garage, a small home in the backyard, or, as often seen in San Francisco, an unused portion of the main house.

[3] A fief was a central element in medieval contracts based on feudal law. It consisted of a form of property holding or other rights granted by an overlord to a vassal, who held it in fealty (oath to the lord) or “in fee” in return for a form of feudal allegiance, services, and/or payments. 

[4]  “Educational Community for Homeowners (Echo) is a nonprofit corporation dedicated to assisting California homeowners associations. Members receive guidance through live webinars, Members receive guidance through live webinars, virtual seminars and workshops.

[5] Is CAI a coercive monopoly? Definitely YES!