Category: Opinion

Posts by GKS

Az & TX legislators criticized for failures to support homeowner rights in HOAs

I let the Arizona Legislature know that advocates are not as stupid as they would like to believe (See Observations on AZ legislative treatment of HOA reform bills We know what is going on and has been happening for years with respect to legislative support for private government HOA regimes. HOAs that deny homeowners their rights and freedoms while imposing harsh penalties only on the members and not on the HOA boards.

The attitude of the legislatures appears to be: The HOA must survive at all costs – it’s a matter of national and state security so constitutional protections be damned.

A leading Texas advocate has added to this exposure of legislative cooperation, support, and coercion to permit HOAs to rule without accountability. Read her Open letter.

There are 4 main constitutional issues that are continually ignored by the legislatures: clean elections procedures; due process and the equal application of the laws; ‘consent to agree’ fallacy; and that the Constitution is only about ‘no contract interference.’ These issues must be addressed and reforms instituted, but they are not addressed because the legislators well know that they are defending the indefensible if they speak out.

It falls to the true advocates for HOA reform to have the courage to speak out about the reality of the HOA legal concept. They need to set the record straight about legislation supported and promoted by the so called “stakeholders”, the vendors (read as HOA attorneys and managers) who make money from the unrepresented and truly affected class, the private property owners, the homeowners.

Send a message to your state legislature.

Observations on AZ legislative treatment of HOA reform bills

If you listen carefully to the HB 2371 sponsor and committee chair explain her bill you would hear the familiar attitude taken by many legislators. First, you were told that a “meeting of all the stakeholders” to work on combining all the bills into one took place.  Oh yeah?  All the stakeholders, but no homeowners.  

 Second, the objective of the bill was to remove “all the contentious issues” and arrive at a bill satisfactory to all. So, those serious violations of homeowner rights will die each time CAI shouts, “HELL NO, WE WON’T GO”!  And of course, there ain’t nobody present to object.  

 So, that would explain what happened to the wording of SB 1333, the “clean elections” in HOAs bill?  A bill that, if passed, would severely cripple the political machine HOA boards and reduce HOA attorney influence.  A bill that would put an end to HOAs, under attorney guidance, finding ways to deny homeowners a legitimate voice in their governance.  But, there were no homeowners invited to the stakeholder meeting!

 Advocate Pat Haruff corrected the sponsor on this comment about “stakeholders.” No response from the Senator. That means that your pool guy, AC service man, landscaper, etc. are all stakeholders in your private property interests because they make money from you, the homeowner. And the legislators don’t need to hear from you! Welcome to how state legislatures are creating the New America of HOA-Land.

An argument against unlicensed management companies being granted exceptions to the unauthorized practice of law (UPL) laws was raised. While the bill would allow managers to represent HOAs in small claims court, it says nothing about homeowners being allowed to have their own unlicensed person speak for them. No one against the management company amendment portion brought up the AZ UPL decisions and opinions contained in AZ Supreme Court’s Final Order: HOA management firm engaged in unauthorized practice of law. Well, did you really expect CAI or AACM (manager’s association) to do it?  And believe me they know, because the management firm was both a CAI and AACM member.

 The CAI paid lobbyist once again falsely proclaims that CAI represents homeowners, failing to mention that CAI does not, and cannot as a business trade group, represent consumers — and HOAs are consumers of CAI member services. No one corrected him.

 I also got the feeling from the sponsor’s comments that the legislature was sort of tired of all these HOA bills, again and again, so wrap them into one bill and get it done with. I wonder if the annoyance is because they know that they are doing wrong to the people whom they are supposed to represent, and favoring the special interests. What about protecting the private property rights of the individual, a principle uttered so many times in so many arenas except in the HOA arena?

I can’t recall over the past 5 years many HOAs coming before the committees on behalf of HOA bills. No, it’s just the special interest vendors, the “stakeholders”, who live off HOA income who come before the committees. And nobody seems to notice. Yet, the homeowner who comes and/or writes is given short rift.  I’ve told several legislators over the years that we will be coming back year after year until they get it right.

 So, there it is! Homeowners are at the bottom of the food chain, with the legislators ignoring the principle that in a democracy citizens rule.  To paraphrase a statement in an address to the British prisoners of war by the Japanese commandant in the movie, The Bridge on the River Kwai,

 “Be happy in your home”

Creating dysfunctional communities through HOAs

The current (Feb. 18, 2013) slogan on the Arizona CAI chapter website reads, “Creating Better Communities Through HOA’s”.  I find this statement to be entirely incredulous!  It dismisses the reality of an authoritarian regime that denies due process and the equal protection of the laws to homeowners. It asserts that kangaroo courts; the absence of fair elections processes; and a consent to the waiver and surrender of rights by the by simple filing of CC&Rs with the county without explicit, written agreement by homeowners all create better communities.

Such an attitude by pro-HOA lobbyist organizations is the primary cause that creates not better communities, but dysfunctional communities.  And from attorneys who proclaim to be experts on HOAs, but who clearly are ignorant of constitutional law.  (A leader of the AZ chapter is now president of CAI’s “best and brightest” lawyers group, CCAL). With the rapid growth of HOAs across the country, supported and encouraged by the state legislatures in all states, the HOA legal structure reflects values of the greater dysfunctional society that is becoming The New America of HOA-Land. 

The values, philosophies and standards of democracy set forth in America’s organic law — the Constitution, the Bill of Rights, the Articles of Confederation and The Northwest Ordinance of 1787 — are rapidly becoming a myth, but are still being taught in our public schools and misleading the people of America. 

Our elected representatives must restore our communities and society to those fundamental principles supporting our democratic system.  And that can be now with those HOA reforms bills now before your state legislature.

Can municipal agencies be liable under Monell Claims for policies that support HOAs? YES!

The legal doctrine of Monell claims appears to be suited for those instances where public policy permits violations of constitutional rights under 42 US 1983, “Civil action for deprivation of rights”.[i]    These claims can pertain to police departments and county attorneys, planning boards, and real estate departments and other HOA commissioners or ombudsmen officials if they have adopted such a policy. In other words, if it is the policy of a planning board, or the police department and/or county attorney to ignore or dismiss legitimate complaints against HOAs then this policy allows for the application of civil rights protection under federal law.

 In Nevada, Bob Frank and Tim Stebbins have filed such a federal claim[ii] against Henderson Police Department for false arrest and malicious prosecution relating to their whistle-blowing, which involved IRS rules violations relating to tax refunds to HOAs.  Without probable cause and an independent audit, the police arrested the two homeowners under filing a false claim.  Subsequent to their arrest, the IRS completed its audit that did indeed substantiate the allegations of Frank and Stebbins.

Basically, a Monell Claim involves a claim “against a government unit [with] sufficient facts to show (1) the existence of a government policy or custom and (2) that the unconstitutional act was taken pursuant to that policy or custom.”[iii]  Further clarification of what constitutes “policy” was provided in Pembaur v. City of Cincinnati[iv] decision that held, among other things,

“We hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.”

In other words, the policy or custom must come from a high-level official who can be said to speak for the agency, and thus the municipality.  For example, Commissioners and Directors who are permitted to set rules and regulations by law.  Any such rule, especially an explicit policy statement, may lead to a Monell Claim. For example, in Pembaur the Prosecutor was held to be the final authority when he told the police to break into a business without a warrant.  In Frank, it is shown that the Police Chief and Municipal Judge approved the probable cause claim for the criminal arrest warrant.  See this link for current documents in this case.

When the “unspoken alliance of no negatives about HOAs” becomes incorporated into an agency policy, then Monell Claims may arise.

 

Notes

[i] “Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected to . . . the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable . . .” (emphasis added).

[ii] Frank v. City of Cincinnati, 2:12-cv-01988-GMN-GFW (D. Nev.) (not decided).

[iii] Supra, note i.

[iv] Pembaur v. City of Cincinnati, 106 S.Ct. 1292 (1986).

A message to state legislators across the country on HOA reform bills

“It will be hard, but the time is now.  You must act.  Be bold.  Be courageous. Homeowners are counting on you.”

This paraphrase of Giffords’ comments[1] can be an effective tool, a uniting mechanism, for all advocates across the country.  Use it when contacting legislators on HOA reform legislation.  Given the long history of the failures of state legislatures to do what is right for the people, it is highly appropriate and relevant.  Use it!  Show solidarity across the country!

Note 1.
Former Congresswoman Gabriele Giffords before the Senate Judiciary Committee on gun control on Jan 30, 2012.