In Scott Carpenter’s video seminar on 2011 Changes in the law for Arizona, May 23, 2011, Carpenter speaks of the possibility of raising the “steep” fees at DFBLS. He states that “in speaking with the people at DFBLS, they are considering changes in the fees” to meet the requires of the law that HOA adjudication fee would cover all costs.
The DFBLS website already has wording, “Filing fee amounts are to be determined.”
See more at AZ DFBLS seeking to raise HOA fees already??
Yesterday, May 24th, the Arizona Supreme Court simply DENIED hearing this Petition to vacate the lower court ruling that the Arizona agency, DFBLS, had violated the separation of powers doctrine when hearing HOA disputes . Disappointing, but not surprising given the new laws to take effect on July 20th, that addressed the separation of powers opinion. It still allows DFBLS to deny accepting complaints since ARS 41-2198(3), the statute authorizing DFBLS, was not vacated. It still stands.
Consequently, in the event that a complaint is filed on or after July 20th and DFBLS denies accepting the complaint, another challenge to the constitutionality of the law would be necessary. If DFLS accepts the complaint, rest assured that Darth Vader is ready with another challenge.
Why is this possible? Doesn’t the appellate court opinion serve as precedent and that’s that? NO, the door was opened by the Court! The Court in addition to its regular fashion of terse announcements, DENIED or ACCEPTED, added an order under its powers to do so, AZ Supreme Court Rule 111(g), that the Gelb decision was not to be published. Not being published means that it is not binding authority, or precedent. It seems then that the door is open and res judicata – already decided – doesn’t apply.
Why allow another shot” at constitutionality? Maybe, as I have argued, the arguments in support of the law relied on the same two cases, Cactus Wren and Hancock, accepted as controlling in both Gelb and in Waugaman (in the only other case that involved a decision, the superior court decision Troon v. DFBLS, Waugaman, LC2007-000598, Maricopa County), left something to be desired. Like the entire body of constitutional law and on the administrative procedures act concerning the acceptance of quasi-judicial authority of executive agencies. Yes, sharing does occur, and none of the applicable rulings were based on the extent of the agency’s regulatory functions, as the DFBLS cases were, (Gelb essentially followed the arguments in Waugaman).
July 20th will be the next phase of the fight by homeowner rights advocates for due process and the equal protection of the laws. The AZ Supreme Court just “punted.”
See AZ Supreme Court to decide whether or not to proceed on Gelb and HOA adjudication
The CBS TV Phoenix affiliate, KPHO reporter asked in its HOA Syndrome coverage, What could someone do to escape the HOA Syndrome? The only answer provided as to “move out”.
That was a completely unsatisfactory solution! In a hearing on HOA reform bills in this past session, a legislator stated that 94% of all new homes was in an HOA. A completely unsound solution not based on the facts.
Furthermore, it rewards the guilty parties. The government was not called upon to do something to stop this disgraceful condition in what the government continues to tout as “the next best thing to Mom’s apple pie.” There was no call for the immediate adoption of a consumer advisory like a Truth in HOAs Disclosure Agreement. There was no call for ADRE, the real estate department, to enforce its rule on material disclosure, R4-28-1101. There was no call for the Legislature to enforce HOA laws and to hold the HOA accountable under the laws, so homeowners can feel that there was someone on their side. That there was a viable method to ease the pain. KPHO offered no such call except to “move out.”
KPHO’s internet survey, “Question of the Day,” asking whether the Syndrome does really exist has received, after 24 hours, a steady 67% YES replies from respondents. Perhaps this will be an awakening call that the legitimate grievances of homeowner rights advocates over the years are valid! And the only reply from the national pro-HOA trade lobbying group, CAI was a faint, “But, it’s not officially recognized.” Not even a word that something has to be done to make its claims of happiness and harmony a reality. Not a word!
In Arizona, neither its Attorney General nor real estate department, ADRE, will get involved in HOA issues. The AG’s broad authority includes consumer protection involing real estate transactions and white collar crimes. ADRE’s stated mission also claims that it protects consumer home buyers: “We want to protect consumers from being harmed in real estate transactions.” Like with the AG, there’s is no exception in the laws for transactions and acts involving HOAs. (These agencies can’t explicitly exclude HOAs without incurring charges of violations of the constitutional prohibition against the unequal application of the laws).
The AG’s office, under its revised web site for the new AG, offers a number of consumer guides from auto purchases, Indian arts & crafts, predatory lending, and telephone scams, but not a word about HOAs. There is no “Truth in HOAs” pamphlet Its “Protecting Consumers” reads (emphasis added),
Consumer fraud, as defined by Arizona law, is any deception, false statement, false pretense, false promise or misrepresentation made by a seller or advertiser of merchandise. In addition, concealment, suppression or failure to disclose a material fact may be consumer fraud if it is done with the intent that others rely on such concealment, suppression or nondisclosure. Merchandise may include any objects, wares, goods, commodities, intangibles, real estate or services.
ADRE has Commissioner’s Rules, having the effect of law, that includes R4-28-1101, Duties to Clients. It, too, cautions about revealing material facts (emphasis added),
A. The licensee shall also deal fairly with all other parties to a transaction.
B. A licensee participating in a real estate transaction shall disclose in writing to all other parties any information the licensee possesses that materially or adversely affects the consideration to be paid by any party
When asked, for the third time over 7 years, why ADRE doesn’t enforce this rule when it comes to HOA transactions, its typical answer dealt with their non-regulation of HOAs, and, in this recent reply (emphasis added),
However the Department has to be advised, typically by way of official complaint, that there is an apparent abuse of the laws occurring. At that time, the Department would investigate and proceed from there. Without knowledge of a perceived violation occurring, the investigation cannot begin.
What we have here is a failure to act, a failure of government authorities to make their allegations about consumer protection — in effect their propaganda that deceives the people — a reality. It’s an instance of “the tail wagging the dog.” In regard to ADRE, the people, not the agency, must act. The agency will not act under its powers until some individual claims that a violation had occurred. I say again, ADRE wants you, the homeowner to file a complaint before it acts — “the Department has to be advised, typically by way of official complaint.”
But, what about adopting another approach like that used by police departments with their Internal Affairs department, which on its own, investigates seemingly suspect behavior, without a person having to come forth. This failure makes the true role of ADRE is BPOA— the Benevolent and Protective Order of Agents.
These deceptions reflect the deception found in the judicial branch misleading motto, ”Equal Justice Under the Law.” We all know that the laws can be unjust and selectively enforced, and we know that this is true of the HOAs laws in all states. And these deceptions reflect the ills of our society, the “Not me, I’m not responsible” attitude by those in authority.
“Blaming the wolf will not help the sheep much. The sheep must learn not to fall into the clutches of the wolf.” Gandhi.
How is your state doing? Any better? Are you protected when you by into an HOA controlled home in your state? I think not! Will you sign the Truth in HOAs Disclosure Agreement before you buy? Read and find out. Remember, you are on your own.
In order to understand CAI’s adversarial position to homeowner reforms and its activities to promote litigation challenges, we need to look into its activities and not its lofty pronouncements. As you know, Rule 11(a) requires that the attorney perform a reasonable inquiry into the genuine issues of law or fact of the HOA allegations before undertaking any law suit. (See HOA attorney failure to inquire into merits of a complaint — R Civ P. 11(a)). We can get a good idea of CAI’s motivations for pursuing litigation from its activities with respect to HOA reform laws.
In spite of strenuous opposition by advocates, the sponsor, Arizona Rep. Montenegro, pursued this bill, HB 2441, to the very last floor vote before it was soundly defeated. (See CAI soundly thrashed by Arizona Senate). His support for this disgraceful bill can only stem from 1) that he is true believer in the New America of HOA-Lands, or 2) that he succumbed to the heavy influence of the national trade organization, CAI.
Advocates had attempted to inform Montenegro and the legislators of CAI’s real intent, which was not the betterment of the community or the state of Arizona, but its own self-interests – control of the HOA landscape. As further evidence of this opposition to the intent of the law, the former CAI chapter president and lobbyist, Scott Carpenter of Carpenter Hazlewood, released examples of what could be seen as “how HOAs can get around the law.”
In my comment to New Arizona laws for 2011 session — thanks to the legislators, I critique Carpenter’s “reasonable rules” that HOAs may impose on the recording of HOA meetings, the new HB 2445 law. One is a 24-hour prior written notice to the board, which can easily “disappear” at its convenience. Also, among is “reasonableness” are that all recordings must be on tripods and must use batteries – seems contradictory with respect to its stated concerns about safety issues. And that the HOA has a right to obtain a copy of the recording – at a reasonable cost. H’mmm, maybe the feel paranoid and that its own recordings won’t capture everything? Or is he just putting up obstacles “to make life difficult?”
Again, a CAI attorney, Carolyn Goldschmidt, takes up another controversial issue with respect to applicability of Title 10 statutes for nonprofit corporations and Title 33 statutes on HOAs and condos. (By the way, the resurrected statutes for ALJ adjudication of HOA disputes, SB 1148, does not permit the ALJ to decide issues outside of Title 33). Basically, does ARS 10-3708 or ARS 33-1812 control the holding of HOA elections and meetings? In an attempt to avoid the HOA statutes with respect to meetings and elections, Goldschmidt narrowly argues that an election without a meeting is valid under Title 10. Yet Title 33 contains strict requirements for meetings and elections – notice, ballot, agenda and quorums.
The HOA held an election that was not part of the meeting, as it claims, and the subsequent meeting just counted the votes but took no action. Say what? Isn’t a “certification” or a counting of election results at an annual meeting an “action”? And, as Goldschmidt well knows as she had participated in several OAH complaints, this dispute would not fall under the Office of Administrative Hearings jurisdiction by an ALJ. (And neither would the other very important common laws found in Chapters 6 and 3 of the Restatement (Third) of Property: Servitudes).
It is these actions in the real world and not the pontifications by CAI and it seminars, conferences, articles, columns or interviews that reflect what CAI is all about. That reflect CAI attorney pursuits of litigation, advertising and advising loopholes in the laws using narrow interpretations of the law, which can be highly questionable under Rule 11(a). And it is not about principles of democratic government within the New America of HOA-Lands or making for a better America or community, its about power over the HOA second form of political government. And attorney fees.
If charged with violating Rule 11(a), and so judged, can the HOA file against the attorney for its attorney fees?
HOA Constitutional Government 