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.

HOA adudication at OAH: a rebirth of constitutionality, abuse, and legislation

It seems that with the “rebirth” of Arizona administrative agency adjudication of HOA disputes in 2011, CAI and other the pro-HOA supporters want to stifle this due process protections that has leveled the litigation playing. Although not the answer to all issues, with its 42% win ratio favoring Pro Per homeowners, it is a very good start. In continued attempts to deny homeowners a fair and just hearing, the first OAH case in 2011 reveals a challenge to the constitutionality of the new statute, feeble as it may be. To better understand the issues at hand, let’s review the activity took place in two arenas in 2008: the courts and at the legislature.

1. Courts. After several prior years attempts to obtain a just hearing process in HOAs, a hard fought battle resulted in the passing of HB 2824 in 2006 that established OAH adjudication of HOA disputes. After a full year of complaints in 2007, 2008 started with several constitutional challenges to the new laws. Starting early in 2008 with Waugaman and the OAH appeal to the superior court, the new statute was found unconstitutional. At the close of the year the Merrit OAH case broadened the court ruling to apply to all HOAs. At the same time of Waugaman, Gelb filed an OAH Petition that resulted in an appellate court affirmation of the superior court ruling in 2010, making the ruling precedent.

2. Legislation. While the CAI attorneys attempted to end OAH adjudication, legislation was introduced in 2008 to stop the abuse of process at OAH, whereby the HOA attorneys were trying to make OAH just like a civil court proceeding with the formality of the rules of court. The two prominent bills, HB 2724 and SB 1162, were defeated, but they caused panic in CAI and with HOA attorneys. Among other things, these bills sought:

HB 2724

“notwithstanding any provision of the declaration, an amendment to the declaration is void and unenforceable against any unit owner who entered the association before the adoption of the amendment unless the amendment was approved by unanimous consent of all unit owners . . . .”

the association shall enforce that provision of the condominium documents against all other unit owners who can reasonably and readily be determined to be in violation. . . . the association bears the burden of proving that the association enforces that provision uniformly. . . . Any provision in the condominium documents that is not uniformly enforced pursuant to this section is deemed unenforceable for purposes of any pending enforcement action.

Except as expressly prescribed in this chapter, the requirements of this chapter including any rights conferred by this chapter shall not be modified by agreement or otherwise waived. A person shall not use any device to evade the limitations or PROHIBITIONS of this chapter.

SB 1162 (two separate issues presented)

A. Amendments. “An amendment to the condominium documents does not apply to any court or administrative action filed before the amendment is adopted.”

B. Attorney fees – penalties.

the administrative law judge shall not award attorney fees or costs and a court shall not award attorney fees or costs in any appeal from an administrative order unless the administrative law judge or court makes a finding that the attorney or party did any of the following:

1. Brought or defended a claim without substantial justification.

2. Brought or defended a claim solely or primarily for delay or harassment.

3. Unreasonably expanded or delayed the proceeding.

4. Engaged in abuse of discovery.

If the administrative law judge or court makes a finding pursuant to subsection C of this section, the administrative law judge or court may allocate the payment of attorney fees among the offending attorneys and parties . . . [This was designed to punish the abusers, the HOA attorney and HOA, as the homeowner was overwhelmingly a Pro Per.]

“without substantial justification” means that the claim or defense constitutes harassment, is groundless and is not made in good faith.

Please bear in mind that, “Good faith, a state of mind consisting in ((1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation . . . (4) absence of intent to defraud or to seek unconscionable advantage.” (Black’s Law Dictionary).

Are we seeing a second attempt at abuse of process in OAH adjudication? Today, the first Petition was challenged with a feeble constitutionality challenge. Of the first 3 Petitions filed, 2 resulted in the quick use of a civil court permitted Motion to Dismiss being filed with one Petition having already been dismissed. In the newest Petition, filed just last week, the HOA has not yet responded. As I have previously written, the other Petition appears to be proceeding with a pre-hearing conference, where I suspect a discussion of the Motion to Dismiss will occur. The OAH records are not clear. From the OAH stated purpose of pre-hearing conferences and topics for such a hearing (A.R.S. § 41-1092.05(F)), it seems the question of OAH jurisdiction will be raised a a legal matter – “Clarify or limit procedural, legal or factual issues.”


If this is indeed the case, using motions to dismiss to over-power the homeowner and to avoid any audiotape record of the hearing — an invaluable resource not readily available in trial court proceedings — I strongly urge that legislation be introduced as indicated above to put a stop to this abuse. Legislation to stop “ex post facto” amendments, which is a violation of Constitutional restrictions, must be proposed and sponsored in January.

If, on the other hand, the Petitions did not conform to the statutes for OAH adjudication, then all those looking to file a Petition must read the OAH letter from its Director addressing homeowners in HOA proceedings — Homeowner Petitions Against An Association. A must read for all.