Tag: Arizona

Creating dysfunctional communities through HOAs

The current (Feb. 18, 2013) slogan on the Arizona CAI chapter website reads, “Creating Better Communities Through HOA’s”.  I find this statement to be entirely incredulous!  It dismisses the reality of an authoritarian regime that denies due process and the equal protection of the laws to homeowners. It asserts that kangaroo courts; the absence of fair elections processes; and a consent to the waiver and surrender of rights by the by simple filing of CC&Rs with the county without explicit, written agreement by homeowners all create better communities.

Such an attitude by pro-HOA lobbyist organizations is the primary cause that creates not better communities, but dysfunctional communities.  And from attorneys who proclaim to be experts on HOAs, but who clearly are ignorant of constitutional law.  (A leader of the AZ chapter is now president of CAI’s “best and brightest” lawyers group, CCAL). With the rapid growth of HOAs across the country, supported and encouraged by the state legislatures in all states, the HOA legal structure reflects values of the greater dysfunctional society that is becoming The New America of HOA-Land. 

The values, philosophies and standards of democracy set forth in America’s organic law — the Constitution, the Bill of Rights, the Articles of Confederation and The Northwest Ordinance of 1787 — are rapidly becoming a myth, but are still being taught in our public schools and misleading the people of America. 

Our elected representatives must restore our communities and society to those fundamental principles supporting our democratic system.  And that can be now with those HOA reforms bills now before your state legislature.

Returning to fundamental American principles, but where are the HOAs?

There are 2 bills before the Arizona legislature this session.  HB 2467 will require HS grads to sign a pledge of allegiance as a requirement for graduation. SB1212 will require public school education in American organic law.  The U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi).

I strongly believe that such organic law education should be a required course at all community colleges as well, open to the public on a class by class basis.  Maybe then the private government HOA regimes will better understand how HOAs repudiate fundamental American principles.  Maybe then HOA management companies, and HOA attorneys,  will begin to understand their   disgraceful attitudes and comments. Such a disgraceful attitude was exemplified by property manager David Henderson of Red Mountain Management (Arizona), who said in response to a death threat against an HOA member by a director, “This is a private association issue.” (Death threats for woman feeding feral cats in Mesa).

The director urged other board members to ”Just shoot her and put her out her misery,” speaking about a repeated HOA “offender.”   I cannot imagine a public official daring to make such a statement to other agency members.

The organic laws of HOA-Land are replacing the organic laws of the US as applied to local government. (See Legislative protection of HOAs: replacing US organic law with HOA organic law).

 

HB2467

Beginning in the 2013‑2014 school year, In addition to fulfilling the course of study and assessment requirements prescribed in this chapter, before a pupil is allowed to graduate from a public high school in this state, the principal or head teacher of the school shall verify in writing that the pupil has recited the following oath:

 

I, _________, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge these duties; So help me God.

 

SB1212

The instruction on the Constitution of the United States and American institutions and ideals shall be given in accordance with the state course of study for at least one year of the common school grades and in each year of the high school grades, and shall include instruction on the founding principles of the United States, the declaration of independence and the bill of rights.

AZ looking at special taxing districts for certain HOAs

A number of legislators are behind HB2474, a bill that restricts planning boards and municipalities from mandating HOAs unless the development has one of the following: a pool, a clubhouse, a lake, a golf course, or one of a few other amenities.  If not, which pertains to those developments with just common areas or smaller amenities than those required, any proposed planned community must conform to Title 48, Special Taxing Districts, Chapter 4, Municipal Improvement Districts, or Chapter, County Improvement Districts, and be a government entity.

I have urged such an approach over the years as uses existing law and creates a government entity, subject to the 14th Amendment.  The Representatives are Townsend, Orr, Stevens, Borrelli, Boyer and Petersen.

The short bill reads:

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 9, chapter 4, article 6, Arizona Revised Statutes, is amended by adding section 9-461.15, to read:

 9-461.15. Planned communities and homeowners’ associations; limitation; municipal improvement districts

 A.     The planning agency of a municipality in exercising its authority pursuant to this title shall not require as part of a subdivision regulation or approval or a zoning ordinance that a subdivider or developer construct or establish a planned community as defined in section 33-1802 unless the planned community association owns or is otherwise liable for any portion of the costs of any one or more of the following special features:

 1. A golf course.

2. One or more lakes.

3. A swimming pool with an area of more than one thousand two hundred square feet.

4. A clubhouse or other community building that is more than two thousand five hundred square feet in size.

5. An orchard or other agricultural feature that in aggregate covers two acres.

6. An equestrian area or facility.

7. A landing strip, runway or other similar feature designed to be used for aircraft.

8. A commercial property.

9. A public or private school.

10. One or more churches.

B. For any proposed planned community that does not contain one or more special features as prescribed by subsection A of this section, the municipal planning agency shall require the formation of a municipal improvement district pursuant to title 48, chapter 4.

 Sec. 2. Title 11, chapter 6, article 1, Arizona Revised Statutes, is amended by adding section 11-810, to read: [Reads as above, except a conformity to Chapter 6 of Title 48].

 

As a reference, please see my 2004 Commentary, A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.

CAI attorney appeals to HOAs to challenge AZ ALJ due process statutes

Arizona CAI member, and president (as of Jan. 1, 2013) of its College of Community Association Lawyers, Scott Carpenter, makes several misleading statements about the constitutionality of Arizona’s Office of Administrative Hearings adjudication of HOA disputes.  (Top 10 Legal Issues for 2013 video seminar).

Speaking of the constitutionality of the statute, Carpenters states, “We took it up to the court of appeals and the supreme court of Arizona and they said this whole process is unconstitutional.”  He appears to be speaking about the 2008 Gelb v. Casa Contenta HOA in OAH, the only one that was eventually appealed to the Arizona Supreme Court. The case was won by the HOA, but Gelb appealed to the superior court. In superior court the HOA attorney, the winner, challenged the constitutionality of the law in a case that its client had already won! What was the real purpose of the appeal? For the HOA or for CAI and Carpenter.

Allow me to clarify the events relating to Carpenter’s obsession with OAH due process for homeowners. It was the third OAH challenge by Carpenter in his attempts to shutdown OAH adjudication. The first was held to only apply to the HOA in the decision in question. The second was held to apply by a superior court default decision to all HOAs, but Carpenter needed an appellate decision in order for the unconstitutionality ruling to become precedent, binding, on all Arizona HOAs.

 While he got his appellate decision, Gelb appealed the decision to the Arizona Supreme Court.  I filed an amicus curiae brief to inform the Court of certain facts relating to the conduct of the HOA attorneys and lower court decisions.  (See Advocate submits amicus brief in AZ supreme court appeal of HOA due process).  In spite of Carpenter’s misleading statement,the SC did not hear the appeal, but issued an order that the Gelb appellate decision of unconstitutionality was not to serve as ANY precedent, and thus not binding on future cases. Carpenter didn’t get what he wanted

                                                                                           

MINUTES No. 3161 (May 24, 2011) Arizona Supreme Court   CV-10-0371-PR

 GELB v DEPT OF FIRE BUILDING AND LIFE/SEDONA CASA

Court of Appeals Division One 1 CA-CV 09-0744

 

ORDERED: Appellant’s Petition for Review = DENIED.

FURTHER ORDERED: The Court of Appeals’ Opinion shall not be published,

pursuant to Rule 111(g), Arizona Rules of the Supreme Court.

 

(The appellate decision shows as a MEMORANDUM).

 In regard to the OAH bill becoming law, Carpenter brazenly declares a conspiracy to pass this law saying “When the executive and legislative branch conspired together to deprive the judicial branch of their essential role . . .” Talk about a loaded statement that the sponsor, and now Senate President, Andy Biggs and Governor Brewer would love to hear, especially when Carpenter adds, “It is still unconstitutional.” This is pure one-sided opinion, an ipse dixit – no supporting arguments.

 Carpenter finally makes his real motives plain, in this video, when he encourages people to file suits to raise a constitutionality challenge to the new 2011 law. He also laments that “the whole process is contrary to HOA law” in regard to the payment of attorney fees, implying some sort of superiority of restrictive covenants over constitutional law. He fails to fully inform his audience and viewers of the fact that attorneys are not required at OAH, and that it’s the HOA’s decision to spend and pay for these unnecessary fees.

 

HOA board mentality and unconscionable CC&Rs rewrites

Homeowners living in HOAs must decide what side of the fence they are sitting on!       Whether on the side of management or on the side of the rank and file homeowner?  There is a major difference as the HOA is not a democratic community government, but a corporate form of government.  And never has a corporate form of government been described as democratic.

The business parallel of “management vs. employees” in HOAs is alive and well. Management represents the HOA entity and not the members, just as management represents the stockholders and not the employees.  Legally this fact is found everywhere.  And the HOA attorney who advises the board and rewrites CC&Rs and amendments represents management and not the interests of the members.  How many times have you seen and heard “for a more productive and effective HOA” and “for the benefit of all members collectively”?   Sounds nice, but the two are not equivalent.  The board does not speak for all the members and that’s why there is member voting.

A most egregious and unconscionable act by the board and its attorney can be found in the broad rewrite of the CC&Rs where liberties are taken in favor of the HOA.  Where the homeowner again unknowingly waives and surrenders his rights and freedoms to the HOA, because the homeowner rank and file does not hire their own attorney to explain the impact of the HOA changes.

An example of how far this unconscionable activity can go involves the rewrite of CC&Rs by an Arizona CAI member attorney firm, and member of CAI’s College of Community Association Lawyers (CCAL).   In the rewrite the attorney deleted “reasonable” with regard to attorney fees and added “all”.  The attorney also did not adopt the “prevailing party” widely accepted standard of fairness, but mandated the homeowner to pay its fees regardless if the homeowner wins.  In other words, even if the homeowner had brought suit against HOA wrongful behavior and wins, he must still pay the HOA attorney fees.  Covenants that are unconscionable and against public policy are held to be invalid.

Additionally, a festering issue at the Arizona Legislature has been the awarding of attorney fees by the Office of Administrative Hearings (OAH).   The attorney uses the term “administrative law judge” as most homeowners would know that OAH does not pay attorney fees.  This blatant “squeeze it by and maybe they won’t notice” tactic is disgraceful.  Yet, in 99% of the cases heard at OAH the HOA has decided to hire the unnecessary attorney.  The HOA should pay for this unnecessary decision.

And yet many homeowners would go along with this “stick it to the homeowner” mentality.   Presumably because they see themselves not as the “homeowner” at issue, and therefore it doesn’t affect them.  But, the rewritten covenants apply to them, all of them.  And it also applies to the directors and officers who believe that this unconscionable conduct is good for the HOA in the long-term, and that it also doesn’t apply to them.  But, unjust and unfair covenants that openly serve the interests of their attorney cannot be seen as in the best interests of the HOA.

Homeowners in HOAs must decide where they stand.  For their rights or for unconscionable conduct and acts of bad faith by the HOA board and its attorney who is not your attorney.