Tag: Arizona

AZ CAI’s reaction to the “new era of regulation” of HOAs

In his Sept. 15th seminar, Best Practices for Meetings in an Era of New Regulation, Arizona CAI attorney Scott Carpenter realizes that HOA abuse can no longer be denied or hidden from advocates and from the internet. He asked HOAs to stop activities that will bring further regulation of HOAs, repeatedly using the phrase, “They know us.”

At the very start of the seminar, Carpenter stated that his purpose was not to get around loopholes in the law, or to get around the law, but to show how to “adjust to the new laws.” He then proceeds to play the same “redefine game” that he cautioned HOA boards to avoid — holding workshops rather than meetings because the statutes say nothing about workshops, or not to hold regularly scheduled committee meetings since they are restricted under the statutes. His recommended “adjustments to the law” read like plain, old “finding loopholes in the law.” For example, his advice included:

law doesn’t require you to meet monthly.”
don’t discuss everything – it may go viral on the web
always use closed meetings
restrict the publication of board videos by homeowners
don’t fear emails, but don’t overuse it — will lead to more regulation
hold non-regular committee meetings
use unanimous consent to avoid meetings — just have all board members sign off on the actions — but with care to avoid more regulation

The above is definitely not in keeping with the intent of the Legislature. Carpenter, as a self-promoted expert in HOA law and experienced lobbyist for CAI, denies knowing the meaning or purpose of these “It is the intent of the Legislature” sections included in several of the new bills. An experienced attorney knows well that statute and contract interpretations and clarifications often involve the court looking into the intent of the drafters. He is letting the HOA boards know how to “get around the laws” and the intent of HOA reform legislation, raising the question of good faith conduct by HOA boards if they pursue these loopholes.

And finally, one last point, Carpenter is feeling the heat of the activities by homeowner rights advocates. He laments,

It is the homeowner advocates who say they are on the homeowners side who gave the feedback, the evil conduct of the bad boys of the management companies [no mention of the attorneys]. They’re the ones who have drafted this type of legislation.

This only creates more “us agin them” hostility. It should be noted that he did not deny that abuse goes on in HOAs.

See also AZ CAI attorney Carpenter admits CAI is no longer in control and CAI attorney Carpenter’s view on OAH bad for HOAs

AZ CAI attorney Carpenter admits CAI is no longer in control

An advocate questioned the sincerity of CAI attorney Carpenter’s repeated use of the phrase, “They know us,” in his Sept. 15th seminar, Best Practices for Meetings in an Era of New Regulation. In response I wrote,

Earlier this year I wrote that the victories of Arizona’s HB 2441 (defeated), CAI soundly thrashed by Arizona Senate, and SB 1148 (passed, overcoming Carpenter’s DFBLS/OAH court victory), New Arizona laws for 2011 session — thanks to the legislators, signaled a major defeat for CAI in the power politics game at the Legislature. The tone of Carpenter’s remarks in the seminar only reinforces my view that a major setback took place at the Legislature for CAI. All as a result of the efforts of advocates, the real homeowner rights advocates, to get involved and expose, challenge and confront the CAI propaganda. It’s working!

I will just mention a few points from the seminar. First, Carpenter laments the new age of regulation, meaning a loss of CAI influence on HOA boards.

Second, his advice on what not to do is given with cautionary remarks that his, and the boards’, statements will go viral on the web (internet), like now. And he realizes that he is helpless to stop it. So he cautions the boards not to play “redefine” games — calling a meeting a “workshop” —which will only result more regulation when a homeowner (Sally was his example) runs to the legislature to stop some HOA evil. He further advised the attendees to shut up and not be recorded for the internet distribution. In fact, he suggested a reasonable rule, in his view, that would restrict a homeowner’s right to publish his taping of the meeting on the internet.

Third, he sought to confuse issues by identifying the management class of HOA members, the directors, as the true advocates because they are fighting for “what the members signed up for.” This serves to confuse the meaning and purpose of the bona fide “homeowner advocate” label.

In short, CAI is reacting to our issues and no longer controls the playing field. Congratulations everybody!

See also, CAI attorney Carpenter’s view on OAH bad for HOAs.

HOA advocates must deal with reality for success

In a study I did in 2009 on Bar complaints in total, using its reports, only 15% of the complaints submitted 2005 –2008 resulted either in a Bar sanction, or a Supreme Court finding of a violation of law – 9% for the SC and 6% for the Bar. Of all the cases involving the HOA attorneys, I am aware of only 2 cases that resulted in “guilty” findings – one brought by a court appointed Receiver and one by a judge.

The State Bar’s real name is, The Benevolent and Protective Order of Attorneys (BPOA).

Complaints filed against an attorney must follow the same process as in civil court: cite the laws and Rules of Conduct broken, and supply concrete evidence of wrongdoing.

In the past I posted copies of the Arizona AG’s response to requests for help, as well as ADRE’s “not my job” response.  Both agencies said, “Go tell it to the Legislature.”

Arizona Attorney General will not prosecute for HOA justice

ADRE: Licensed AZ R.E. agents can do as they please in HOAs — Not My Job

 

 

Will legislators stop CAI attorney acts of bad faith?

As a concrete example of a lack of good faith by HOA attorneys, that smells of aiding and abetting the board to get around the letter and intent of the law, is the newly effective Arizona statute permitting the videotaping of board meetings. Just 2 weeks after the signing of the bill into law, and still 3 months away from its effective date, the CAI member attorneys at Carpenter Hazlewood (CHDW) began their campaign against this open meeting law. They began by offering suggestions as how HOAs can adopt what CHDW considered reasonable rules. No board came forward and said, “How do I beat this law and protect the board?” as far as I know. (Such actions by a board would in itself be a violation of its duties of good faith to the owners as a whole).

Returning to the example at hand, Carpenter Hazelwood, through the management firm of AAM, the board informed the members of the Tatum Highlands CA board’s “reasonable” restrictions that, as usual, are one-way against the homeowner. Note that the HOA government is restricting free speech by not allowing dissemination or publication of the videotapes. Now, why would anyone videotape the meeting if not to distribute it for others who did not attend the meeting? What is the board afraid of? Some hanky-panky goings on?

It is quite clear that CAI does not act in good faith with respect to either the letter or intent of the laws. Rather than adopting the CAI Central propaganda that calls for creating harmonious, vibrant communities, which the homeowners can be proud of, its minions seek total advantage for the HOA.

State legislators must face up to reality of acts of bad faith by CAI attorneys and put a stop to this madness in no uncertain terms!

Read the complete Commentary here.

 

CAI acknowledges “unconstitutional taking”, but not from homeowners

CAI-CLAC (CA CAI lobbying committee) has apparently discovered the meaning of “an unconstitutional taking” when it object to the new California law, SB 209, that permits homeowners to install electric vehicle charging stations in HOAs. CAI argued in its July 26, 2011 email release (not shown under HOT BILLS on its website), “a very significant problem remained unresolved in that the measure essentially condones an unconstitutional governmental “taking” of property that is commonly owned by all the members for the benefit of one. (My emphasis). I’m impressed that CAI acknowledges constitutional law.

 

However, CAI, that national leading HOA educational organization — as it likes to promote itself, but is truly a business trade group to help its members make $$$$ — has no quarrel with the taking of homeowners’ constitutional rights, freedoms, liberties, privileges and immunities as a result of the application of the common law of servitudes over constitutional law. The taking of constitutional rights and freedoms, and the violation of the equal application of the law and due process protections for homeowners in HOAs by constructive notice — the simple posting to the county clerk’s office — binds buyers to the CC&Rs sight unseen, never mind the absence of explicit consent.

 

CAI seems to take this fascist state approach, where the goals of the state, the HOA, come before individual rights, is an absolute, sacrosanct, untouchable right conferred upon the HOA, without regard to the US Constitution. The justification for the legitimacy of the HOA government is the lame excuse that the homeowner remains in the HOA and does not leave its jurisdiction, thereby giving his implied consent to be governed and to the surrender of his rights. But, the HOA is not a de jure public government that functions without any contract. The HOA is a contractual arrangement, and this application of public doctrine is an constitutional taking of the homeowners’ private property rights.

 

Sadly, state legislators see no evil, no rejection of the US Constitution, and the courts allow this secession from the Constitution to prevail. What is the purpose of a constitution if any two people can sign a document that says we reject the Constitution? What is happening to America?

 

As we discovered with regard to Arizona’s secessionist feelings earlier this year, Art. I, Section 10, Clause 3 of the Constitution prohibits compacts between the states without the consent of Congress: “No state shall, without the consent of Congress . . , enter into any agreement or compact with another state”. And to allow private citizens to do so makes a mockery of the Constitution and the American system of government.  Are we already in The New America of HOA-Land? 

 

Read on CAI, read on and learn more about constitutional law.