Tag: Arizona

New Arizona laws for 2011 session — thanks to the legislators

 
HOA laws for the 2011 session:
 
 The 7 new  laws, out of 22 bills introduced, affect due process protections for homeowners that levels the “litigation playing field”;   homeowner meeting rights, including the right to record board meetings, as a check on abusive boards and attorneys; new restrictions on transfer fees;  free speech rights to fly flags and political signs; and restrictions on fees for leasing signs.
 
They are:  HB 2245, HB 2609, HB 2717, SB 1148, SB 1149, SB 1326,  and SB 1540.  All homeowner friendly, and as many would say, making for a better community and a better Arizona. 
 
This Arizona session has been the largest pro-homeowner crop of HOA reforms in my 11 years of advocacy. 
 
And it also included a sharp rebuff to CAI in its desperate attempt to retain influence over HOA boards through lobbying our legislators.  HB 2441, the minority control / no court appeals  bill – failed.  Now, they alone, are setting out to put the spin on these new laws by offering seminars and classes. 
 
The public has no alternative to this pro-HOA special interrests propaganda since the news media remains firm in its policy of No Negatives About HOAs.  It would be impossible for the media to explain the new laws without reference to the abuses and lack of homeowner protections in HOA regimes.
 
Thanks to the tenacity of several outspoken Arizona advocates, the laws become effective on July 20th.

HOA attorney failure to inquire into merits of a complaint — R Civ P. 11(a)

  

I’ve mentioned several times that there are many instances where the HOA attorney could easily be seen as a co-conspirator against the homeowner.  I cited civil court rule R 11(a) – found in all states – that says,

 

“that to the best of the signer‟s knowledge, information, and belief formed after reasonable inquiry [the document] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose.”

 

In other words, the filing a suit to collect attorney fees, win or lose.  Problem is that the HOA winds up paying when the homeowner does standup in court and demands evidence and facts.  But, in any case, the attorney gets the $$$.

 

While this case does not involve unsubstantiated violations by the HOA, or unreasonable interpretations of the governing documents or statutes, it well illustrates a very important defense argument.  In this Arizona case, CAI HOA attorney Maxwell contested HOA’s second position to the first mortgage lender’s lien, arguing that the statute applied  to first mortgages in time only.  Of course, there was the usual demand for attorney fees  since the HOA lost.  I guess that includes fees for the appeal, too.  

The court found as to the good faith of the filing attorney that,

 

“The good faith component of Rule 11 is not based on whether an attorney subjectively pursues claims in good faith, but instead is judged on an objective standard of what a professional, competent attorney would do in similar circumstances . . . . The trial court determined sanctions were appropriate because there was “no statutory basis or any extension of statute that would lead counsel to presume that Plaintiff had priority over a first deed of trust filed by the Bank[s].”

 

The appellate court said it quite pointedly: “As discussed above, the language in § 33-1807 is clear and unambiguous. Yet, both here and below, VJA bases its arguments on an interpretation of the statute that is contrary to its plain language.”

 

Don’t be afraid to remind your attorney about this Rule 11(a)  — they are usually hesitant to attack their fellow attorneys as they may be next so charged. 

Villa de Jardins Assn v. Flagstar Bank, CA-CV 2010-0177, (Ariz. App. Div. 2, Apr. 22, 2011).

Arizona OAH restoration: SB 1148 signed; supreme court “paused”

 

SB 1148 was signed by the Governor today – will become law 90 days after end of session.
 
The AZ Supreme Court did not reach a decision and the case is listed as “Continued”, probably at the next conference scheduled for May 24 (not yet on the agenda).
 
Congratulations to Sen. Biggs on behalf of all homeowners living in HOAs seeking justice!

CAI soundly thrashed by Arizona Senate

The Arizona Central CAI Chapter was dealt a sound thrashing today by the Arizona Senate. HB 2441, written line-by-line by CAI, and submitted to a way too friendly legislator, was overwhelmingly defeated in a 3 – 27 vote.

In a desperate attempt to remain influential in the legislature and before HOA boards, CAI proposed a bill that contradicted its years and years of opposition to HOA reform legislation. Among its hollowed arguments that were solidly and repeatedly reversed were: local democratic control of the HOA and unwanted government interference with HOA contracts. With respect to amending the CC&Rs — those documents handed down by developer attorneys and amended by CAI HOA attorneys for over 40 years — CAI proposed a 2/3 vote of the votes cast under a 50% quorum to amend the CC&Rs. (Read carefully: That’s 1/3 of all the members!)

And, to insure that local control remained in the hands of a minority — also known as an oligarchy — that the members could not have recourse to the courts to appeal any amendment to the CC&Rs. In an arrogant display of misguided power, at the same time that CAI proposed this bill, CAI was opposing the right of homeowners to take their HOA problems to an independent tribunal, the Office of Administrative Hearings.

Scott Carpenter, the CAI attorney who submitted the bill, proudly boasted in his Jan 10, 2011 enewsletter, “2011 Legislative Preview”,

 

I have always and will advocate for legislation that keeps control of community associations local – with the members and their elected board of directors.  I will disfavor legislation that usurps or trumps local control in favor of a one-size-fits-all approach that the legislature has used in recent years to address political signs, solar panels, real estate signs, parking and other issues.

 

Apparently, he meant “local control” even if by means a minority of the members. Apparently, he meant with the imposition of state law, a fiat, stripping homeowner contractual rights away from them. With HB 2441, he gave meaning to the above statement and was seeking the aid of the legislature to interfere in the CC&Rs contract. In the most despicable and un-American provisions of the bill, CAI sought to impose these minority rights on homeowners who would lose their private property rights under the CC&RS – without their consent. A contract that CIA always told them that they had agreed to, and was binding upon them.

 

Now, to serve CAI’s self-interests, majority rule was out, and contract interference by the legislature was OK! See the CAI lobbyist’s feeble attempt to justify the bill HB 2441. Read the criticism of the March version, susequent changes did not materially affect the essential problems with the bill. Go to

AZ bill to allow 1/3 vote to change CC&Rs violates your private property rights.

AZ bill, HB 2441, is a bill of attainder and an act of tyranny

 

Arizona’s HB 2441 is an unconstitutional Bill of Attainder under the US (Art. I, § 9, cl. 3) and Arizona Constitutions (Art. 2, Section 25).  It is a violation of the “separation of powers” doctrine as the legislature has acted to punish certain members of its citizenry — the taking of private property rights from homeowners living in HOAs — by a “trial of the legislature” and a legislative exercise of a judicial function.  As such, a bill of attainder has been described as an act of tyranny (US v. Brown, 381 US 437 (1965)). 

A careful reading of the Senate amended version of HB 2441 . . . permit and declare it is not illegal to so act by minority vote, the taking of private property rights from Arizona citizens without their consent, and in violation of their contractual rights. This bill, by its “blessings” that it has now been declared legal for a minority to so act and therefore incumbent on the homeowner to be obey, opens the “barn door” to the establishment of the oligarchical control of the community.

In Brown, the Supreme Court held,

“The Bill of Attainder Clause was intended to implement the separation of powers among the three branches of the Government by guarding against the legislative exercise of judicial power.

“A statute which inflicts its deprivation upon named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, discouraging future conduct.”

HB 2441 repudiates the fundamental premise of democracy — majority rule. This bill is a special law for a private party and is prohibited under state and federal constitutions.

Read the complete Commentary here.