Category: Opinion

Posts by GKS

Constitutional free speech in HOA upheld in this surprising case

“Court documents indicate [homeowner] Immelt got upset after being told she had violated a homeowner’s association rule. Immelt borrowed a friend’s car, pulled up in front of the home of the neighbor who reported her and honked the horn repeatedly for up to 10 minutes. Several neighbors were awakened.

“Immelt was convicted of violating a local noise ordinance that prohibits sounding a horn for anything other than public safety or a publicly sanctioned event. Immelt appealed, saying her constitutional free speech rights were violated and that the ordinance was too broad. Her conviction was upheld in appellate court.

“While the court didn’t decide if what Immelt did constituted protected speech, it concluded that the noise ordinance Immelt was arrested under could ban’”protected forms of expressive conduct involving horn honking. It therefore fails constitutional scrutiny’.”

Who says the Constitution means nothing?

State of Washington v. Immelt, No. 83343-5, 2011 Wash. LEXIS 825,* (Wash. Oct 27, 2011). Very long case.

In HOA-Land, Halloween is verboten!

Texas Neighborhood Tells Family to Remove Halloween Sign From Yard.

This is one very serious aspect of how HOAs have redefined the American community, not only its landscaping aesthetics, but America’s social and political customs, traditions, and system of government. And all made possible by cooperative and biased state legislatures and courts that uphold the CC&Rs as if they were a contract, yet fail to apply “Contract Law 101” to these supposedly valid contracts.

The application of contract law, and constitutional law, would immediately invalidate the CC&Rs and the legal HOA scheme based on the seminal Homes Association Handbook of 1964.

Welcome to the New America of HOA-Land.

AZ OAH Constitutionality of HOA adjudication still lingers

In the first OAH Petition filed, 11F-H1112001-BFS, the North Slopes HOA filed a motion to dismiss, partly based on the unconstitutionality of the statutes. It was a feeble claim, especially coming from a national law firm. The ALJ, at the Oct. 19, 2001 pre-conference hearing, stated that the statute was constitutional until a court decision said otherwise. The HOA attorney then stated that it was filed to allow the question to be raised in a superior court appeal.  Here we go again!

My feeling is that we will continue to see constitutionality challenges as one of several defenses in future Petitions, and not as  the main focus of the defense, which  we saw with the repeated CAI attorney challenges.

The failure of 39 years of CAI seminars: ignore HOA homeowner-member concerns

In keeping with its service to HOA management, and not to the homeowner-members, the Shaw-Lines web page declares, ‘We also provide annual seminars on legislative changes affecting associations’ legal rights.” Now, Augustus Shaw IV seeks input from the management/professional class: Shaw & Lines Lunch and Learn Topic Survey: (Oct. 18, 2011)

Which of the following topics would you most like to see addressed at a Lunch and Learn?

     Show Me the Money – How to Collect Assessments in a Sluggish Economy.
Fair Housing Laws and Community Associations – How to Avoid a Fair Housing Lawsuit.

Mr. and Mrs. Curmudgeon – How to Handle Difficult Homeowners.

Association Record Keeping – What Records a HOA Has to Keep, How Long They Must Keep Them and Owner Records Requests.
Changes in the Laws Affecting Community Associations.

How to Conduct Board Member Training – Key Issues Every HOA Board Should Be Taught.

What Every Community Should Know About Association Insurance.

I’ll Sue! How to Properly Address and Handle Owner Threats of Suit.

Apathy Abounds – How to Increase Member Participation in Your Community Association.

Know Your Acts from a Hole in the Wall – Understanding the Condominium, Planned Community Acts and Non-Profit Corporations Acts.

I ask, and ask: Who speaks for the homeowner?

Definitely not CAI. Definitely not the Leadership Centre or the HOA Academy in Arizona, or any of those associations of HOA associations nonprofits found throughout the states, like ECHO or SCHOA, or those management firm organizations of alleged professionals, like AACM or CACM. And definitely not those towns/cities that sponsor seminars by CAI attorneys and/or CAI trained managers.

I speak for the homeowners! See HOA Constitutional Government and Citizens for Constitutional Local Government.

These websites, and comments under HOAGOV, inform homeowners of their rights, which among others include such topics as,

Of course, I do not expect invitations to speak at these government sponsored seminars to come pouring in, for obvious reasons.

DISTRIBUTION OF THIS COMMENTARY IS PERMITTED, PROVIDED CREDITS ARE STATED, AND URGED IN THE INTEREST OF HOMEOWNER-MEMBERS.

Disclaimer:  Oh yes, for the record, I am not a lawyer and I do not provide legal advice. See a lawyer for legal advice.

AZ legislation needed to insure justice and to stop OAH abuse

Legislation to stop further HOA abuse at the Arizona Office of Administrative Hearings is in order today. Signs of potential abuse are surfacing, and we must act ASAP to stop it immediately.

From the OAH website, “Pointers” link, here’s what OAH has to say in 2001 about pre-hearing conferences: THE PRE-HEARING CONFERENCE – IT WORKS (emphasis added).

Once a request for a hearing date is filed with the Office of Administrative Hearings, the parties can expect a setting within a quick and short time, leaving a precious minimum of adequate time for pre-hearing discovery and preparation. A pre-hearing conference will help counsel and parties to get around these two obstacles. Both discovery and a reasonable timeline – which will insure better preparation for an effective hearing – can be obtained through a pre-hearing conference. Early settlement discussions can also be triggered. . . . One possible negative of an early request, however, is that the other side may not be fully prepared, but this exposes a situation that you may wish to know early.

The above reads much like the “quick and dirty” technique — my words — of a motion for summary judgment, legal as it may be. It contains contradictory assertions that justice will be served due to pre-hearing conferences, and that the “other side may not be fully prepared, ” which in our HOA context applies to the Pro Per homeowner.

It appears that the two Petitions invoking the pre-hearing conference, of the first 3 OAH Petitions, reflects a move to “get the case quickly closed.” Note that the pre-hearing conference must be requested, and we know by whom, or by the sua sponte by the ALJ, “on his own”. My recollection of the initial 2006 – 2009 phase recalls just a few pre-conference hearings. The 2001 belief, unsupported in the HOA adjudication environment where the homeowner does not use an attorney, states,

Once a pre-hearing conference has been held, the Administrative Law Judge and counsel will know each other better. Subsequent status or telephonic conferences are easier to have once everyone knows each other better. Therein lies a powerful but not always evident benefit of an early pre-hearing conference – positive rapport and trust can be established among the participants.

There is a legitimate concern of an abuse of process. The belief expressed above assumes that the HOA attorney is acting in good faith and not abusing the process. However, 2008 legislation, in particular HB 272 4 and SB 1162, challenged this assumption (sadly, they were defeated). See Arizona HOA cases update — OAH and HOA adjudication at OAH: a rebirth of constitutionality, abuse, and legislation. There is no reassurance that justice will be done by this procedure — this is NOT civil court, and to turn OAH into civil court only serves the HOA attorneys.

There is no mention of allowing the homeowner to revise his Petition or Response, or to extend the hearing date, or to allow more time for discovery by the homeowner. The important value of OAH adjudication is to level the litigation playing field in the interest of fair play and justice, and not to force the homeowner to hire an attorney to deal with the rules of civil procedure as used in the courts. And I have a further concern, because (emphasis added)

Under the rules of the Office of Administrative Hearings, the Administrative Law Judge is not required to memorialize the outcome of a pre-hearing conference (see OAH procedural rule 19-112). Therefore, the best practice is to request that the Administrative Law Judge issue a written pre-hearing order memorializing all directives and agreements.

This means no minutes and no audiotaping which served the interests of justice so well in the first go-around of OAH adjudication in the 2006 – 2009 period. These invaluable hearing audiotapes exposed the conduct and attitudes of the HOA and its attorneys, allowing the public to hear the nature of the HOA’s evidence and justifications for its actions. It is hard to reconcile their performance at OAH with their public statements implying a good faith, for the community, motive.

It appears that the HOA attorneys, like their HOA clients, do not want the public to know what really goes on in HOAs — hurts property values. Homeowners demand justice and fair play, and expect the Legislature to act accordingly and to protect them from abuse — helps property values.