Category: Podcasts

HOA issues

AZ bill returns homestead protection against HOA claims.

We must make the injustice visible. We must provoke until they respond and change the laws.[1]

Arizona alert – strike everything HB 2648 (2024)  returns homestead protections against HOA claims.  

“ARS 33-1807 and 33-1256. “B. THE COMMON EXPENSE ASSESSMENT LIEN PRESCRIBED BY THIS SECTION IS NOT SUBJECT TO THE HOMESTEAD EXEMPTION.”

Let’s go back into the forgotten history of the homestead exemption in Arizona, starting in 2004,[2] 2007[3] and 2023.  The issue was and is the use of statutes to mimic the common boilerplate of the CC&Rs:   Statutory vs consensual lien. “A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents.”[4]

In 2004, still learning the ropes, I did not follow up on the state actors controversy based on the ARS statutes saying (my emphasis), “‘The association has a lien on a unit for any assessment.” 

“Representative Farnsworth made quite clear that ARS33-1807(A), which opens with, ‘The association has a lien . . . . is a statutory lien and not a consensual lien – the homeowner has no choice in the matter whatsoever.” (emphasis added).”

This can only be interpreted as a mandatory statute making the HOA an arm of the state, acting in place of the state – a state actor.[5] No, and, if, or buts! It is not a consensual lien if mandated by the state!

A second argument raised many times subsequent to 2004 questions the validity of a genuine consensus – “an agreement to be bound.”  In short, the argument raised in Common Sense[6],

“First, the application of contract law to the CC&Rs agreement reveals the many invalid aspects of the CC&Rs as a bona fide contract.  It is obvious from a simple review of contract law.  Yet, courts have held that the CC&Rs are a contract or are to be interpreted as a contract, and have even analyzed the meanings of CC&Rs in the same manner as a contract. But, the courts do not question the validity of the CC&RS contract with respect to contract law.  The courts resort to equitable servitudes law, which simply requires the acceptance of a deed in order to bind the home buyer to the CC&Rs sight unseen.”

On this point alone, HB2468 must be strongly supported. The controversy of statutory vs consensual is avoided to the relief of homeowners.

It is the Achilles heel of CAI’s reason for being  — cruel foreclosure and no homestead exemption as a punishment to coerce obedience.

Notes

[1] Mahatma Gandhi, fighting for India’s independence from British rule, 1948.

[2] HOA Homestead Exemption Exclusion (SB1470) (2023) (A 2004 look back and a comment by Fred F).

[3] See, The constitutionality of legislation: AZ Gov. vetoes homestead exemption bill (2007);

Arizona SB1330 restores lost homestead protection in HOAs (2007).

[4] See, All state “may/shall” statutes imply HOAs as state actors.

[5] See in general, Are HOA state actors created by statutory use of shall/may? (Section 2, paragraphs 5 +). (2019).

[6] HOA Common Sense, No. 4: Consent to be governed

Getting your HOA reform bills accepted

I’m pleased to see many of you are using my Commentaries on HOA Constitutional Government as part of your efforts to bring about HOA reform legislation.  Allow me to recommend a procedure that should improve more success in getting your legislators’ attention. Justification for my arguments below can be found in the “Recommend texts” below; homeowners and advocates cannot neglect these works of mine and others.

  • Legislators are immerged in tons of emails by many persons and “robo emails” — the same email sent by many persons —  get slight attention;
  • There is some success that your district representative will sponsor your bill and your reforms;
  • Emails from state residents to bill sponsors and committee chairs and members are generally read, but outsiders receive less attention unless   strong credentials are provided to counter CAI’s credentials;
  • The main focus of your email should be your reforms with the inclusion of works from others being supportive.
  • Have no fear of show the ugly forest through the trees by addressing constitutional violations that support your reform legislation — over my 24 years CAI has ignored any such discussion and will fight like hell to avoid constitutionality issues (I challenged them back in 2006, no response);
  • CAI and the legislators  will not put themselves in a highly vulnerable position of having to defend the indefensible, a rejection of the Constitution; it is their Achilles heel;
  • Have no fear of raising the important issues of intentional misrepresentation in the claimed  “you agreed  to be bound” CAI defense, invalidating the legitimacy of the adhesion CC&Rs contract;
  • Don’t be penny wise and pound foolish – spend some small change and get copies of publications that will serve as textbooks on getting your issues heard before your legislature (see “Recommended texts” below).

Recommended texts

Privatopia, Evan McKenzie (seminal book on private HOA government)

HOA Common Sense: rejecting private government, George K. Staropoli (entry level constitutional violations)

Take Back Your Government, Morgan Carroll (out of stock at Amazon; eBay, Thriftbooks)

HOA Constitutional Government, George K. Staropoli (a one volume collection of 56 events and situations over 24 years)

Amazon Reviews of Collected Writings

One small step for CK, one giant leap for Americans in HOAs

by supporting HOA reforms with an   AMAZON Customer Review

CK — 5.0 out of 5 stars For every American, the essential book on understanding homeownership in private communities.  Reviewed in the United States on February 15, 2024

“I’ve known of and been a follower of Mr. Staropoli’s writings for many many years. What a gift this book is to Americans who seek knowledge, truth, transparency and clarity!”

Back cover HOA Constitutional Government

Please consider submitting a review on Amazon as  short as the above, or more detailed as you would like to say. In your own words. If you read the book, great! If not, please read the Description on Amazon and view the Preface sample selection to help your thoughts.

If you decide to submit, include your credentials – social media group or webpage — to promote your  advocacy nationwide on Amazon along with others.

Effective HOA reform legislation

If advocates want truly effective legislative reforms, they must actively support their legislative champions sponsoring these reforms. There have been important successes as a result of the increased call for and proposed reform legislation in several FB social media groups.

However, these reforms MUST address the very broad and larger constitutional issues that deny homeowners rights — rights that people not living in HOAs enjoy. Simply stated, HOAs must be made part of the Union!  The trickle-down effect would be enormous. All homeowners would be protected and treated fairly when their rights and privileges fall under the well understood laws of the land.

Here’s a simple, straight-forward bill first proposed in March 2011 found in Proposed “consent to be governed” statute, the “Truth in HOAs” bill.

“The CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, ‘The association hereby waives and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.'”

Item 4 of the Truth in HOAs Statute (Bill).

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!