Category: Opinion

Ever wonder how a territory was granted authority from the federal government to be a state?  Here’s how Colorado got its authority. Contrast this to CCIOA  (UCIOA), CRS 38-33.3.101 et seq, that reflects the state’s entwinement in the operation, the encouragement and support of planned communities, and its coercion of the homeowners (See Brentwood citation below).  In other words, how Colorado establishes authoritarian, private governments that are treated as independent principalities. Let’s look at the misleading and somewhat defiant and arrogant Annotation to CCIOA.

 

Colorado Revised Statutes, 38-33.3-102, Annotation

There is no support for the proposition that enactment of a legislative scheme governing the operation of homeowners’ association thereby transforms such homeowners’ association into cities or other governmental entities.

Read the complete commentary at Colorado.

Over 100 years ago, at the turn of the 20^th century, the unregulated abuses of corporate America became the focus of the Progressive Movement.  Essentially, government intervention was found to be necessary to protect Americans from corporate excesses – sweat shops, health concerns in meat processing plants, child labor laws, etc.  Without regulation, corporate America was acting as Adam Smith said it would: in their own self- interests. 

Today, with respect to planned community and homeowner association abuse, including the loss of constitutional protections, the cry of the special interest corporate America of “no government interference” is a misplaced ideological argument to avoid the same necessary reforms that created the Progressive Movement.  Current public policy and state laws are biased to protect the legal structure of HOAs that deprive Americans of their constitutional protections against such abuse.  The most glaring being the refusal to subject HOAs to the same restrictions as are all other municipalities, including subjecting HOA directors and officers to the same laws that govern our public officials.  None of these private constitutions, the CC&Rs, have ever included a provision that the HOA was subject to the 14^th Amendment of the US Constitution, or included a Bill of Rights. 

Some examples:  the current state of affairs permit substantial financial penalties against homeowners who violate the CC&Rs, yet are silent when it comes to violations by HOA directors and officers, and their agents, the management firms.  The punishment with respect to foreclosure is equivalent to excessive punishment in violation of the US Constitution.  And, the acceptance of ex post facto HOA “laws”, amendments to CC&Rs, that render the initial CC&Rs a meaningless protection for homeowners.

Where are the reformers today?  Sen. McCain, in an address before The Federalist Society, said:  “that government should do only those things individuals cannot do for themselves, and do them efficiently.”  Since political correctness is in vogue lately, is it not politically correct to seek government intervention where it is necessary and warranted?   Or, is it morally and ethically correct for our government to protect those who are abused by the powerful corporate special interests?

Where are the progressive reformers?

 Like local governments, community associations have the power to make rules governing some behavior within the community, and the power to enforce them with fines and other penalties.  They also have the power to enforce the servitudes through judicial action .

Purchasers may notice provisions granting rulemaking powers to associations, but may not anticipate that these powers may be used, for example, to deprive them of their right to own pets or occupy their homes with a roommate, to dilute their voting rights, or to change their share of the common expenses .

Restatement Third, Property (Servitudes)

For complete editorial, see Ex Post Facto

The following article was deemed inappropriate for publication on Wikipedia, by its President, Jimmy Wales:

 Hi, I reverted your edits to Homeowners Association. Simply pasting in a book review is not proper encyclopedic writing. You need to write something neutral. Wikipedia should never make claims like “shockingly absent” and so on.–Jimbo Wales 16:54, 22 February 2007 (UTC)

(Retrieved from “http://en.wikipedia.org/wiki/User_talk:Pvtgov“)

The following is based on a review.^[6] of the Handbook (TB#50) , and from sections of Privatopia, and Community Associations.^[7], a book funded in part by ULI and CAI. The origins of how this came to be here in America, the bastion of democracy, can be traced back to the Urban Land Institute’s (ULI), Technical Bulletin #50, The Homes Association Handbook (1964) that was prepared and supported by the real estate special interests, and aided by federal agencies. Those agencies included the Federal Housing Administration, US Public Health Service, Office of Civil Defense, and Urban Renewal Administration. ULI was formed in 1936 as a research division of what is now known as the National Realtor Association).

For the complete entry, see Homes

The new Arizona experiment in HOA justice by means of the administrative judge resolution of disputes has been hailed as a leveling of the playing field. Homeowners now have a relatively inexpensive and less formal procedure to obtain justice against an HOA board’s disregard of the laws and governing documents.

ALJ decisions can now have a financial impact on HOAs if they lose cases that involved the collection of fines and other charges against the homeowner, and were found to be in violation of the law or governing documents. In case 07F-H067004-BFS, not yet decided, the homeowner petitioner asked for punitive damages and restitution. The ALJ ruled that punitive damages were out, but restitution was permitted, depending on the facts. This ruling was based on a 1993 Arizona Appeals Court opinion (Cactus Wren v. The Department of Building, Fire and Safety, 869 P.2d 1212) affirming the decision by the administrative hearing officer.

Of the twenty-two complaints filed against HOAs to date, six have been decided: HOAs won 3 cases, the homeowner 1 case, and 2 cases were “split decisions” going to one and the other on the separate case complaints. The cases are being heard before the Office of Administrative Hearings (OAH)where HOA attorneys do not automatically get fees paid if they win, and where the Administrative Law Judge may penalize the HOA up to $500. This should make HOA boards think twice about filing suits urged on by the attorney, and attempt to reach an agreement with the alleged violator.

No longer can HOA boards file suits or frivolous fines without being subject to financial penalties. The HOA boards are now being held accountable for their actions by the state. This will have an impact on homeowners not involved in the case when such actions by their boards cause them to reach into their pocketbooks to foot the bill. Now, perhaps the homeowners, usually denoted as “apathetic homeowners”, will feel the need to watch over their boards.