HOA Constitutional Government

However, it is in reality a well-disguised “litigation machine” that restricts an association’s ability to solve problems with their CC&Rs, avoid additional costs and litigation, and may actually increase the number of frivolous lawsuits filed against Associations.  SB1162 would do two things: (1) prevent the awarding of attorney’s fees to the winning party in Superior Court, and (2) restrict certain types of amendments to the CC&Rs when a lawsuit against an Association is pending in court.

 

 

 

However, it is in reality a well-disguised “litigation machine” that restricts an association’s ability to solve problems with their CC&Rs, avoid additional costs and litigation, and may actually increase the number of frivolous lawsuits filed against Associations.  SB1162 would do two things: (1) prevent the awarding of attorney’s fees to the winning party in Superior Court, and (2) restrict certain types of amendments to the CC&Rs when a lawsuit against an Association is pending in court.

 

 

 

Democracy without honest information creates the illusion of popular consent, and enhances the power of the state and the privileged interests protected by it.   Bill Moyers*

With respect to homeowner association issues and the lack of coverage of the substantive constitutional issues — the lack of due process, the imposition of a contract under claims of highly questionable voluntary consent, the unequal protection of the laws, and the overwhelming evidence of HOAs as state actors under current US Supreme Court tests, just to name a few — is not only avoided, but resisted by the established media.  Rather, isolated HOA stories, cast in terms of personal issues, are repeated across the country, more and more, without any coverage of the broader political, social and legal implications of these events.  Why is there this neglect of these serious substantive issues when HOA regimes privately govern some 20% of the population?  (Data according to Community Associations Institute, CAI, and US Census Bureau.)

To what extent has this “see no evil, hear no evil, speak no evil” reporting by the media influenced the public interest firms like The Goldwater Institute with its opposition to Arizona HOA reform legislation, SB 1162, based on the simple statement of “contract interference”?  Two Arizona attorneys, who fight for homeowners and who have attended several legislative committees on behalf of reforms, have criticized the Institute as not aware of the reality of the HOA legal scheme; and that the awareness of this reality would call for the defense of, and not opposition to, the liberty of the individual homeowner against an imposed contract.  The Institute’s cry of “contract interference” and “voluntary consent” echoed the propaganda claims of the pro-HOA lobbyists as found in the media.

*Excerpts of Bill Moyers’ address to the National Media Reform Conference 2008, June 7, 2008. http://youtube.com/watch?v=Y0r71L7cojE.

And yet the press remains in denial in its role of passing on the unverified claims as facts, while . . . blocking out any other narrative.  That’s the great danger.  It’s not that they dominate the story that we tell ourselves in publicly everyday, it’s that they don’t allow any alternative, competing narrative to emerge, by which the people could measure the veracity of ALL the claims.

When the state becomes the guardian to the power and privilege to the neglect of justice, to the neglect of the people who have neither power or privilege, you can no longer claim to have a representative government.

I would like to congratulate the VP and Publisher, Ginger Lamb, and Managing Editor, Matt Bunk, of The Arizona Capitol Times for their courage to remain a free press and to print both sides of this story. The Capitol Times is the sole Arizona media company to standby and uphold the media’s obligations for the proper functioning of our democratic system of government. 

This only happened once before in my eight years of homeowner rights advocacy, and that was in 2006 by CBS affiliate, KPHO-TV, with its reporter, Greg Mocker, with his hard questioning of the actions of legislative leaders opposing HOA due process reforms.  That reform bill did pass in 2006, and is once again the subject of due process issue of this bill, SB1162. A bill seeking to bring justice for homeowners by leveling the litigation playing field resulting from abuse of the system by HOA attorneys.  A concern for over 1 million people living in HOAs in Arizona.

The argument made by pro-HOA lobbyists and supporters, including the recent Goldwater Institute opposition to Arizona bill SB1162, is misapplied as these supporters fail to recognize the true nature of the CC&R “agreement”.

First, if indeed CC&Rs were a contract under Contract law 101, as is implied by all arguments claiming contract interference, then the CC&R agreement, held by the courts as a binding agreement, would fail the very basic requirements of a valid contract:

1. a genuine meeting of the minds — requires that the parties understood each other — full disclosure.
2. consideration for the agreement — requires a bargaining and “a give and take” between the parties.
3. cannot be an unconscionable contract — unfairness due to oppression or surprise (adhesion contracts are a “take it or leave it” agreement).
4. specificity of terms – “agreements to agree” are invalid, and open-ended amendments (no restrictions on the scope and extent of amendments appropriate to the HOA “mission”) are an example of an “agreement to agree”.

Second, the acceptance that there is an unquestionable valid consent to the CC&R agreement, as a result of the acceptance of a deed, alone, stands in sharp contrast and opposition to these public interests’ mission to protect and defend the private property rights of individuals.

Third, those who argue “freedom of contract” only present one side of this legal doctrine, freedom TO contract. Not discussed is the other side of freedom of contract, freedom FROM contract whereby contracts are imposed on the people without their consent. Freedom from contract is the true issue regarding HOAs and contractual interference, and has been avoided because the pro-HOA supporters understand the weakeness of their “voluntary consent” arguments.

Last, in their attempt to rationalize “consent to be governed” by the HOA, the pro-HOA supporters cross the line from treating the HOA as a private, contractual agreement to treating the HOA as if it were indeed a public government regulating the people within a territory. This ascribing of public government attributes to the contractual HOA allows the pro-HOA supporters to argue that living and remaining within the HOA jurisdiction reflects an implicit consent to be governed. Note, they do not argue explicit consent. Constitutional scholar Randy Barnett clearly presents the error of this argument that living and remaining within the jurisdiction is indication of a consent to be governed to all and everything that is decided by the “government”. And, there is nothing in the CC&R “contract” to support this conclusion.

Passing SB1162 will be a just and fair act that provides necessary homeowner protections, and will level the litigation playing field.

See Homeowners consent to be governed is questioned . . .