Constitutional weakness as applied to HOA-Land

Yes, I admit the Constitution based on democratic principles and values  is not perfect. It is not an end-state but a practice. Democracy requires an active and informed electorate especially when applied to HOAs.  And so, the will of the people —  the voice of the people — in practicality is measured and expressed by majority vote. A “majority”  implies the existence of factions, of people with differing views and attitudes.

The Founding Fathers had to address the issue of the will of the majority trampling on the rights of the minority.  Since democratic principles require all the people to be  treated equally, how do you deal with factions within the  community?  John Adams, in The Federalist Papers #10 and #51, attempts to resolve this weakness.

Madison defines a faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens.” Like we see in HOA-Land, most predominately it’s a small minority in control because of member apathy; or the acquiescence of a majority of  members who believe the BOD can do no wrong.

Madison’s best answer is for democracy to function in a larger group or society where we can expect to have several factions vying and contending with each other for dominance, making it more difficult, but not eliminating, for a majority clique to dominate. (I am sure the Fathers  are rolling over in their graves due to the Trump Era politics). As reality has revealed over the years, it’s wishful thinking in HOA-Land.

The existence of a well-informed, knowledgeable, and involved citizenry is necessary for a healthy democratic society or community. That’s why free speech and the freedom of the press was made the first amendment to the Bill of Rights.  That is why public education is mandated by having states provide public schooling within the state. It doesn’t exist in fat, dumb, and stupid HOA-Land, unless provided by CAI’s “political correctness” education.

HOA reform advocates: the enemy is us

Let me start by saying that I have the utmost respect to the handful of persons, advocates, who have actively supported HOA reforms of substance over the years, and have had some success.  To all others I say, the enemy is us.

I well understand the reasons and justifications of people refusing to get actively involved. Personally, talking over the phone and through emails, that most do not have the temperament, want someone to solve their own personal issue with an attempt to expand it nationally, fear retaliation, fear legal issues and the government, and just don’t care about government issues in general.

The numerous social media reform groups, some old but most are new less than 3 years, have not only failed but have  resisted the establishment of a unified,  bona fide and legitimate, national entity; argued as far back by Evan McKenzie when interviewed by Shu Bartholomew, to the best of my recall, sometime before 2004. Today, I must regrettably say some groups make this claim, but they are in name only.

And so, the many Davids believe that they can defeat the mighty Goliath of CAI. The newbie leaders who rise from time to time and disappear a few years later, start by believing that CAI acts in good faith and they can work things out for the protection of homeowner rights. They quickly discover that they have been had, been played with, and realize they are helpless to withstand the entrenched CAI. Today, many who are beginning to be actively involved realize the dominance of CAI over their legislature.

Watch AZ CAI lobbyist at work, 2010, before committee dodge questions, make false statements, and avoid hard questions. Who Controls public streets? HOA or municipality? Part 2 of 3 (youtube.com). (Early quality video).

As the adage goes, as a figural demonstration of one’s commitment to reforms, “put your money where your mouth is.” However, in reality, I have asked people to buy my book, HOA Constitutional Government, as a demonstration of national commitment on a national website, Amazon, but have received token response.

In my announcement I  clearly stated, and still abide by it, that if there were such a legitimate national reform group I would assign all my royalties to that organization.  $15.00 is a trivial show of commitment but will be effective for recognition of national support. BUY NOW! Amazon books.

Taking a positive perspective, I noticed over the past few years a growing trend toward legislation and court decisions in several states affirming constitutional and fundamental rights of HOA members. That’s a good sign that advocate messages and communications are having an effect. 

Now is the time to strike while the iron is hot! Get unified, get organized, get focused, and stop the HOA social media reform groups’ fragmentation of me first, NIMBY policy.

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

All state “may/shall” statutes imply HOAs as state actors

The use of the words “shall” and “may” have generally accepted meanings in state laws and statutes. Their use in bills and laws relating to HOA-Land raises the highly controversial question of: Are HOAs state actors?  “The overlooked impact and consequence of this word is to legalize activities and actions that were all-to-fore not legal rights granted to the HOA.”[1]

Arizona’s HB 2575 creates HOAs as state actors with the slick use of the legal differences between these terms. BUT, as applied to sui generis HOAs, implicitly create state actors. The bill introduces a new section (emphasis added) with, “ARS 33-1820. Powers of the association. Subject to the provisions of the declaration, the association may:” A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents. Very clever!

Item 4 is particularly onerous because of the use of the introductory “the association may.” A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents. Very clever!

Item 4 was particularly onerous because it permitted the HOA Board to lobby in the name of the members.

“[the association may ] 4. Institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more members on matters affecting the association or planned community or the members’ interests.”

After 3 sessions ending with “ret on cal,” (retain on calendar)  I emailed my may/shall state actor argument (as summarized here) to the legislative leadership resulting in the sponsor’s amendment rewording item (4). In relevant part, “the association may not institute, defend or intervene in litigation or arbitration in its own name on behalf of itself or a member.”

Thus, a potential constitutionality challenge was avoided as I had instituted in 2013, and won, with the help on a nonprofit legal organization, Arizona Center for Law in the Public Interest (ACLPI).[2]

Although the bill passed out of the House with the other argument that the 12 items also reflect an implied state arm it was a major victory 1) on a broad constitutionality issue and 2) a punch in the nose to CAI who actively sponsored this bill, according to the AZ Homeowners Coalition.  CAI can be beat!

There are other arenas to challenge and expose CAI for what it is and stands for.  I present some 56 events over 24 years that serve to guide what worked and what did not work for advocates to successfully challenge the Evil Empire. Organized into 4 sections: On Reform Legislation, On The Bill of Rights, On the Judiciary, and On Civics.[3]  Available on Amazon, paperback or Kindle.

References

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

[2] Suing the AZ Legislature: AZ Attorney General admits SB 1454 HOA to be invalid and without effect.

[3] Read the book, HOA Constitutional Government: the continuing battle. 

The Lone Ranger still fights for HOA constitutionality

“(Common Ground, May/June 2006, Christopher Durso, Editor).

“CCLG’s [Citizens for Constitutional Local Government] founder and president, George Staropoli, for example, originally agreed to an interview but later changed his mind. In a brief phone call during which he’s quiet and almost courtly, he explains that Common Ground is CAI’s ‘house organ,’ and that he’d be more comfortable with a debate or similar format where he could express himself at length, without the risk of being quoted out of context. He asks that his prolific writings on the CCLG website speak for him, although a week or two later he sends an ‘open e-mail questionnaire to CAI’ containing four questions that sprout from CCLG’s mission.”

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 As of this writing, the four questions, also sent to the Arizona Legislature, have not been answered by any party.  Why not?

“1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

“2. Is it proper for the state to permit the existence of private quasi-governments with contractual ‘constitutions’ that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

“3. When did ‘whatever the people privately contract’ dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so. Does “constructive notice”, the ‘nailing to the wall,’ the medieval method of notice, measure to the requisite level of notice and informed consent to permit the loss of Constitutional protections?

“4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?”

Staropoli lists a selection of unsolicited testimonials over his many years of HOA activism.  

His latest activity in January 2024 was the publication of “Seeking HOA Constitutional Government: the continuing battle, Collected Writings.” It contains in one volume some 56 writings — emails, social media postings, and articles — presenting 24 years of historical events, case histories, legislation and related documents by proponents of the HOA status quo.