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.

Contempt of court HOA legislation

Most current HOA reform laws inexcusably assume  that the HOA and its attorney will act in good faith; common homeowner complaints across the states have proven this to be grossly false.

It seems that meaningful HOA enforcement can be attained by filing contempt of court complaints. A “contempt” is disobedience to a court order in which the homeowner can seek jail time and personal financial penalties for the contempt. VERY POWERFUL!   

“A judge may impose sanctions such as a fine, jail or social service for someone found guilty of contempt of court, which makes contempt of court a process crime. Judges in common law systems usually have more extensive power to declare someone in contempt than judges in civil law systems.” (Wikipedia).

Disclaimer; I am not a lawyer and I am not giving legal advice or opinion. Please consult your attorney. Your state certified paralegal may be able to assist you in filing the contempt motion.

Here’s how the legal system works for HOA-Land.  The board as a whole, or president, or individual directors violate the governing documents or state laws. They refuse to correct the violations so you must sue to force compliance.  When you win in court it issues an order or an injunction to perform, etc. to the wrongdoers.  The court says in effect, I’m done.  Continued violations occur; what can the homeowner do?

The homeowner can file a contempt of court motion with the same court specifying the failure to obey the court and want you want the court to do. You can seek court punishment of the violators through financial penalties and/or jail time. The original complaint must be against the HOA individuals in order  for the contempt to be feared.

Check with your attorney or get the state/county specified contempt motion form;  follow the procedure and complete the motion.

Let’s give the Board something to fear. File those contempt motions!  No one can solve your HOA problem unless you act as required. You must act or continue to live at the suffrage of the board , or move out.

Below are examples.

To file a contempt of court, you need to1234:

Beware settlement agreements and gag orders

In reality, Life does not go according to Hoyle.

We are all quite aware that many lawsuits are settled with a gag order attached, especially when CAI is involved (not in this lawsuit).  To my surprise and disbelief, in Arizona, a gag order is not material to an agreement between to parties in a lawsuit.

A recent Arizona appellate decision involved a court ordered settlement conference in which the parties verbally agreed to the terms of the settlement and a written agreement was prepared to be submitted to the court. The homeowners removed the HOA’s version with respect to a gag order, informing the HOA they did not agree to the gag order. The court was informed that the digital recording of the settlement conference was not available for an unknown reason, whereupon the court then ordered litigation and a hearing as to the settlement agreement.  H’mmmm!

The trial court held that the HOA’s version was valid, which not surprisingly was appealed. Following Arizona’s precedent, the court would support the trial court’s ruling “if the trial court’s disposition is correct for any reason.” It seems that the judicial system back’s its own kind – judges make no mistakes. The justification for upholding the HOA’s version was found in Rule 80(a) of the rules of civil procedure.  

First, the fact that the parties agreed to put the agreement in writing doesn’t count if there is an agreement.  Second,

The law “favors enforcement when it is clear that the parties intended themselves to be bound,” and “absent or uncertain terms are not fatal to the enforceability of an otherwise binding contract.

In other words, picky, picky no matter what impact it has on the parties. How can the court hold that an agreement was reached when there are 2 versions and only one party signed? Yes, the judicial system has its flaws!  BEWARE! 

Source: Robertson v. Sierra Pines, CA-CV 23-0069 (ARIZ. App. Div1 (9-14-2023).

Can and will constitutional scholars reply to 4 HOA questions?

In March 2006 I wrote Christopher Durso, editor of the Community Associations Institute’s (CAI) monthly house organ, Common Ground, asking four questions in regard to the constitutionality of HOA’s  (CID, POA, planned unit development, etc.) legal scheme.  My concern was that CC&Rs are a devise for de facto HOA governments to escape constitutional government as presented in  the 1964 “bible” that brought forth the legal scheme, The Homes Association Handbook. 

As of this date, these questions remain unanswered by CAI, by state legislatures and attorney generals, by constitutional think tanks such as the CATO Institute, the Heritage Foundation, the Federalist Society, and by the many constitutional scholars. Is it because any response would be seen as an attempt to defend the indefensible as it would require a rejection of the Constitution and a recognition of the HOA community secession from the Union.  State governments, including the judiciary, exhibit a willful blindness that makes the Constitution a meaningless piece of paper that can be ignored by private contracts unassailable from government interference.

Replacing democratic local governments with authoritarian private governments: Is this good public policy? “Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

Here are the four questions:

 1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

3. When did “whatever the people privately contract” dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so (CBTR v. Twin Rivers, 2006). Does “constructive notice,” the “nailing to the wall,” the medieval method of notice, measure to the requisite level of notice and informed consent to permit the loss of Constitutional protections?

4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?

Once again  I await their replies.

Cc:  HOA Constitutional Government

HOA Advocacy is fighting for a cause

I am disheartened by what I have increasingly seen on several social media HOA reform groups. It amounts to, in my view, passing on misinformation to others when links to articles and posts elsewhere are re-posted with, it appears, only superficial review.

When I delve deeper into these reposts I look for who or what group is posting, their background, and factual content.  Not to my surprise, many times I see CAI affiliations and or a business links in support of the HOA pretending to  help the homeowner. But the average viewer is not made aware of these relationships opposed to advocate  reforms.

I can only guess that the forwarders just want to inform others and let them make up their own minds. That is not what advocacy is all about!  Advocacy is not playing judge to give the impression of being fair to avoid criticism. Advocacy is fighting for a cause and requires commitment confronting the opposition as entrenched as it may be.

Passing on links and articles without due diligence will hurt the social media groups in the long run.

HOA home is security against HOA failure

On a FB advocacy group, a member offered advice to another who was in a late payment dispute with their HOA and being sued. She said pay in protest, which is nice but leaves loose ends and can be, and will most likely be, rejected by the HOA.  I replied:

Interesting and I hope it works. Way back an aggravated homeowner in dispute who refused to pay assessments was sued. Rationally, and applying a fair, just and acceptable solution to debt disputes, told the judge that she would place the owed money in escrow until the case was resolved. The judge said, NO! That was way back in 2003 and things are a little bit better now, and there is another judge. Make the plea to the judge and not the HOA.

I’ve come to believe that state legislatures regard HOAs as a state security interest – in contrast to a national security interest– and can impose what amount to martial law that allows the curtailment of your rights and freedoms. In short, it seems that the HOA could not be allowed to fail so pay up or die. At the cost or your home and all your equity in foreclosure. Talk about intimidation!

YOUR HOME HAS BEEN PLEDGED AS SECURITY TO THE HOA, without saying so in your “fully agreed upon’ CC&Rs!