HOA Constitutional Government

 

An article appears on the azcentral.com website (owned by Phoenix Newspapers, Inc, in turned owned, along with the local NBC TV news, by media conglomerate Gannett Co., Inc) with no stated purpose but to recall the murders of Arizona Ventana Lakes HOA board members in 2000. It’s tag simply reads: A look back at the shooting that claimed two lives at a Ventana Lakes homeowners association meeting in 2000.  For some unexplained reason, the article, which simply lists a serious of Republic articles, appears under the NBC affiliate 12 News banner, peacock and all.

 

Why now? Why recall this event and not report on continued abuse by HOAs? Why not report on the outrageous HOA complaint filing fee increase to $2,000 unilaterally by the Director of the Dept. Fire, Building and Life Safety?  Or the repeated attempts to restore the homestead exemption to homeowners living in HOAs as Rep. Farnsworth’s HB2703 seeks to do? No, all there is silence on these important issues affecting over one million residents in HOAs.

 

Instead, on the azcentral.com site, dated March 24, the Arizona Republic ran a second article telling its viewers of the fears by retirees of too many cars on public streets.  Yes, a PUBLIC street. The Republic chose to echo the false and unsupportable arguments of the special interest groups lead by Community Associations Institute lobbyists and lawyers, who run an HOA column every Saturday in the paper.  Why?

Perhaps, could it be that Senator Gray is fighting hard for his SB1360 to stop HOA boards going wild and ticketing any homeowner for a car parked in front of the homeowner’s house, on a public street, without any effort to ascertain who the owner is?  Perhaps it is the realization that the HOA cannot fine outsiders who visit friends or relatives in the HOA. So, with the broad, unchecked powers of granted the HOA by the state and governing documents, they just fine anyone, right or wrong! CAI and arrogant HOA boards want more, and firmly believe that their ends justify their means.

This is a new low in its reporting of news. The Republic and the local NBC affiliate, 12 News,  must be considered public house organs for the HOA special interests in violation of their public trust.

 

History of violence with the Ventana Lakes HOA
http://www.azcentral.com/php-bin/clicktrack/email.php/6699005

 

Bill barring HOA ticketing of cars feared by retirees
http://www.azcentral.com/php-bin/clicktrack/email.php/6699012

 

1.   MYTH:   The HOA attorney represents you, and will assist you in your claims of wrongdoing against the board.

REALITY:  The attorney represents the HOA as reflected by the board. He defends the board.

 

2.  MYTH:          In spite of your contractual CC&Rs, your civil and fundamental rights are still protected by the Constitution. 

     REALITY:    As a private contract, your CC&Rs have priority over the Bill of Rights, unless those particular rights are so enumerated by the US Supreme Court, such as the Fair Housing Act.  People have the freedom to contract and can surrender their rights as happens, many times unexpectedly, as stated by the CC&Rs.

 

Read all the Myths

 

 

A bill of attainder, prohibited along with ex post facto laws by the US Constitution, has its counterpart in HOAs, those independent principalities operating outside the Constitution.  A bill of attainder is a special legisaltive act prescribing capital punishment, without a trial, for a guilty person.Here’s an example of the unchecked power and lawlessness within HOAs: 

In Arizona, and I’m sure everywere else, a homeowner is guilty and may be fined on the basis of a car, any car, parked in violation of the HOA restrictions on parking, whether or not the street is public, or the car owned by any member of the family of the “guilty” residence.

The homeowner who is so fined by the HOA for a vehicle not owned by him, or by any family member in residence, should file a complaint with the Arizona OAH to protect his rights.  OOPPPPPS!! Sorry, that’ll cost you $2,000 to defend your fundamental rights under the 4th (unreasonable seizures), 5th (deprived of property without due process), 6th (to be informed of the nature and cause of the accusation), and 8th (nor cruel and unusual punishments inflicted) Amendments — by means of the 14th Amendment. 

OPPPPPS! 14th amendment doesn’t apply. Sorry, you lose!

And this unbridled power is supported and encouraged by your elected representatives in the legislature as being good for the community!

The Arizona experiment in HOA justice for homeowners, using the Office of Administrative Hearings (OAH) to adjudicate disputes, is a rousing success!  The ALJs are treating homeowners with respect, and allowing homeowners to present their complaints under OAH rules —  a far cry from the hostile attitude in the civil courts.   

By my count, there have been 12 decisions as follows, giving the homeowners an unprecedented 50% success ratio!! 

HOA win:  5

HO  win:   5

spilt:          2

These first results of ALJ decisions clearly refute CAI’s argument that homeowners who cry about abuse are just touble makers who don’t know how to get along! 

We need OAH to continue its good work bringing a more level playing field to HOA adjudication at an attainable cost of $550. The fee increase, to $2,000 to file a complaint, by the agency, DFBLS, amounts to a poll tax to prevent justice and to stifle complaints against HOAs. OAH has exposed the HOA abuse that advocates have long been attempting to stop.  The reasons are obvious from the results of this rendering of due procees by impartial OAH tribunals.

In a historical first, the newly instituted Arizona law that allows HOA complaints to be adjudicated by the Office of Administrative Hearings (OAH) resulted in a penalty order against the HOA for the intimidation of the homeowner. In OAH case # 07F-H067006-BFS, the ALJ decision included:

Respondent threatened Petitioner with the imposition of its attorney fees in this matter, which it had no basis for doing so. The Administrative Law Judge concludes that the imposition of a civil penalty is appropriate for such improper conduct by Respondent.  IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 to the Department within 30 days of the effective date of the entered Order in this matter.

Many homeowners will tell about HOAs and their attorneys giving dire warnings about the cost of litigation and the payment of attorney fees to scare off complaints against the HOA.  Last year in Arizona, an HOA attorney was given an informal sanction for his attempt to stop a Bar complaint by reducing the fees that he would charge as the HOA attorney. The judge hearing the HOA complaint wrote,

After the Court indicated that there would likely be no award of fees in this case, Defendant was billed approximately $6,000 for Plaintiff’s fees. Though this billing was retracted after Ms. M brought the matter to the Court’s attention, Mr. S continued to demand that she “settle” the case for $2,000.00 – more than 400% of the amount actually owed. Coupled with this monetary demand (which counsel could not justify at today’s hearing) was a demand that Defendant drop complaints that she had filed with the State Bar of Arizona against Mr. S and with the State Board of Accountancy against a member of the Association.

It is unfortunate, however, that homeowner justice and the ability to obtain a fair adjudication by OAH has been threatened by the recent requirement of an unheard of $2,000 filing fee, which is being challenged pursuant to APA statutes.  It appears that the HOA special interests are afraid of the truth getting out about HOA abuse, as has been repeatedly charged by homeowners.