Tag: Arizona

The Unspoken Alliance: “No negatives about HOAs”

The Arizona Republic ran the article, HOA, Laveen man fight over historic flag. 

The HOA called the flag debris and said it broke neighborhood rules.. . . The flag’s a favorite emblem for the ‘tea party”‘movement.

 Reply Comment:

This is a solid First Amendment violation of the right to speak freely on politcal matters.  Supreme Court has upheld such rights. Any deed restriction or covenant that is against public policy or is unconstitutional is invalid and unenforceable. Long held law, thank goodness!

Now, you would think that the HOA attorney, Delgado. another member of the CAI law firm of Carpenter Hazlewood, would know that.  Wouldn’t you think so?   It is interesting that the media always fails to mention this affiliation with CAI, as many of these attorneys lecture on how to live happily in an HOA.  And they are supported by your local town government through the HOA Academy and Leadership Centre programs. 

Are the media and local supporting governments part of the unspoken alliance of, “No negatives about HOAs”?  

How about your Attorney General?  Your consumer protection agencies?  Your real estate department?  The Realtors?  Heard or read anything of substance against HOAs?  Gee, maybe I’m delusional and there are no serious issues of substance after all.

HOAs vs. local government — which “laws” control?

In the  Aug. 6, 2010 Carpenter Hazlewood (CAI attorneys, AZ) e-newsletter post, “Deed Restrictions versus City and County Ordinances: Which One Controls,”   attorney Nkita Patel wrote,

“In sum, if there is a conflict between the association’s CC&Rs and a city or county ordinance, the more restrictive provision will govern.”  

The underlying rationale is that the homeowner, upon taking possession of his deed, has agreed to every surrender of his rights.  And people can agree to the surrender of their rights.  But, under what circimstances and conditions?  Under servitude law of covenants, the homeowner need not read nor sign his explict consent to the surrender of his rights. But, this justification, by itself, is a violation of not only contract law, but of constitutional law and the owner’s due process rights.  Even The Restatement of Servitudes, §3.1, holds that an unconstitutional covenant is invalid.  What say you, Ms. Patel?  

Furthermore, what say you if the covenant simply says, ineffect, “No parking on the streets or driveway?”   Here, regarding public streets, the ordinance says, “No parking 8:00PM to 6:00AM.”  Which is more restrictive?  Which “political law” controls?   

And, finally, the “usual advice” statements are offered, where only partial answers are provided —  those favoring the HOA and NOT explaining how the law would apply as to circumstances favorable to the homeowner.  Carpenter Hazlewood has never addresed the issue of guest parking and the wrongful holding a member in violation of the CC&Rs in an egregious violation of the law, good faith treatment of members, and a just and fair governance. 

What say you, Ms. Patel, about the HOA’s actions in these circumstances?  Please see Wigwam Creek North HOA v. Fuchs, CC: 2010- 49644, Estrella Justice Court, where such an event and wrongful HOA act took place, apparently with HOA attorney approval.

 

Read more . . .

HOA attorney collusion and regulation of public streets

Ethical obligations of attorneys to HOA members

 

AZ R.E. dept ignores HOA laws in its policy of “No Negatives About HOAs”

Today, Arizona has a new crop of laws becoming effective, aside from SB 1070, two of which affect HOAs and property sales.  One would think that the AZ Dept of RE (ADRE) would mention these new laws. Although pertaining to HOAs, which ADRE does not regulate, they affect the sale of real property.  Real estate agents are required to know real estate law, contract law, agency law, and the Commissioner’s Rules, which are part of the licensing test and are included in its biannual continuing education classes.

Playing its part in the unspoken alliance of “No Negatives About HOAs“, ADRE released the following document:  Law Book Addendum 2010 Statute Changes –  Click here.   It makes no mention of the only two HOA bills with changes to ARS 33-442, which pertains to real property sales and transfer “fees” imposed by HOAs.  HOA attorneys have suggested that the HOA get the seller to include payment by the buyer it the sales contract.  But, according to ADRE, no need to be concerned here.

The Addendum also does not mention the changes to ARS 33-1808 and 33-1261 pertaining to “for sale sales” signs.  Not a concern of agents either, it appears. (It’s not like ADRE is not aware of the bills, having supported them.).

Under the Commissioners Rules (AZ Administrative Code, Title 4, Chapter 28 (ADRE), Article 11, Professional Conduct, excerpted here (emphasis added),

R4-28-1101. Duties to Client (legally, the guy who pays; the other party is the “customer”)

A. A licensee owes a fiduciary duty to the client and shall protect and promote the client’s interests. 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 to the transaction, including:

3. Any material defect existing in the property being transferred;

H. The services that a salesperson or broker provides to a client or a customer shall conform to the standards of practice and competence recognized in the professional community for the specific real estate discipline in which the salesperson or broker engages . . . .

I. A salesperson or broker shall exercise reasonable care in ensuring that the salesperson or broker obtains information material to a client’s interests and relevant to the contemplated transaction and accurately communicates the information to the client. A salesperson or broker is not required to have expertise in subject areas other than those required to obtain the salesperson’s or broker’s license. A salesperson or broker shall take reasonable steps to assist a client in confirming the accuracy of information relevant to the transaction.

A strict reading of the above evokes a “caveat emptor” policy by ADRE, and “material” only pertains to the physical, and not to all of the real property interests affected by the sale of the real property.  Yet, in its PR statement to consumers, “Information for Consumers” page, ADRE assures the consumer in its (emphasis added),

 We want to protect consumers from being harmed in real estate transactions.  You will find a wealth of information on this website that will help you be a smarter real estate consumer.  You will also find information about what to do if something goes wrong in your transaction.  Remember, we are always willing to help.

 If you need to speak with an ADRE staff person, phone the ADRE Consumer Assistance Team at 602.771.7730

PS.  Earlier this year, the last time that I wrote ADRE about this, and to the new Commissioner, I was told that ADRE doesn’t regulate HOAs.  No mention of its failure under the above Rule.  I guess HOA laws affecting sales does not concern ADRE, and has adopted the “see no evil hear no evil, speak no evil” stance.

HOA attorney doesn’t recommend Roberts Rules — let the boards do as they please

 In the July 23, 2010  issue of “the word” for HOA boards (CAI Carpenter Hazlewood’s enewsletter), CHDW’s Sahl correctly states the silence of the  AZ statutes on the issue of corporation rules of order.  And, in true pro-HOA support — after all they represent that separate and distinct class of owners, the directors and officers — say the board can do as it pleases.  Absent is any recommendation for  a sound and “good faith” functioning of the HOA by recommeding that, as a very good idea,  the HOA does adopt Roberts Rules of  Order. 

But, why should they when the board has the broad powers granted by the adhesion CC&Rs and state laws?  Why confine and restrict its right to do as it pleases, under these very broad grants of freedom to act, by using  Roberts?   No, no, no!  “Rules” is for the owner-members, those other guys, and not for the hired-hand managers,  directors, or  officers.   Roberts Rules, repeatedly revised, is the 134-year accepted standard for conducting board meetings by corporations, especially nonprofit corporations. 

Please understand that the Board does not function for the benefit of the “people”, the homeowner-members, as does public government, but to enforce the CC&Rs first and foremost.  Such enforcement to maintain property values is for the mutual benefit of the homeowner-members to the exclsuion of all other rights, freedoms, and privileges and immunities still available to those not living in HOAs. 

This surrender by homeowners of their privileges and immunities,  which all Americans are to enjoy, must be fully understood.  It is not diviluged to the public at large under the unspoken alliance of  “no negatives about HOAs.”

 

For more info, see  Does CAI act in good faith for the benefit of the people in HOAs?

                              Confederate Texas and HOA governments: de facto, unlawful governments

Texas & Arizona: the different meanings of ‘standing to sue’ an HOA

The question on appeal was a question of a legal standing to bring this suit against the defendants.  In general, the Texas appellate court in Webb clarified the legal status of “standing” (emphasis added),

 Standing deals with whether a litigant is the proper person to bring a lawsuit. . . . To establish standing, one must show a justiciable interest by alleging an actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally. . . . As stated by the United States Supreme Court, the question of standing is whether the party invoking jurisdiction has “a personal stake” in the outcome of the controversy.

 

Traditionally, courts have held that this “personal stake” must exist at the commencement of the litigation and continue throughout the lawsuit’s existence.

 

With respect to the Webb decision, the Court noted (emphasis added),  “Accordingly, unless Webb is an owner of a lot within Glenbrook Estates, she does not have standing to seek a declaration whether the Association waived enforcement of certain Covenants.”  Webb was not the recorded owner of the lot, only her husband’s name appeared on the deed, and Webb could not establish any fiduciary relationship or other representation for her husband.  Webb’s  case was dismissed due to a lack of standing to sue.

 See  Webb v. Voga, No. 05-09-00074-CV, Tex. App. Dist. 5, July 15, 2010.  (Glenbrook Owners Assn was a defendant).

NOW, TURNING OUR ATTENTION TO ARIZONA’S MOCKERY OF JUSTICE,  where the Office of Administrative Hearings adjudication of HOA disputes was declared unconstitutional  by the Maricopa County Superior Court (Meritt v. Phoenix Townhouse HOA, LC2008-000740, January 29, 2009), we find an unaddressed issue of standing to sue.  In short, after the decision and after a denial of this writer’s right to file a Motion to Intervene by Judge Murdock, an attempt was  made to bring the issue of a lack of standing to the attention of the court. The fact that the homeowner, who initiated the case, was no longer a member of the Phoenix Townhosue Assn.  On Feburary 23, 2009 I wrote Judge McMurdie, providing the evidence and saying,

 

Petitioner and real party in interest, Ron Merrit (sic), had quitclaimed his deed to his co-owned property in the Phoenix Townhouse subdivision on October 10, 2008, prior to the superior court special appeal of October 23. (Exhibit 1).  I believe this issue became moot at that point.

 I reminded the judge,

 If I had been permitted to intervene, these facts, discovered subsequent to filing the Motion to Intervene, would have been presented appropriately. Rule 60(c)(6) “does not limit the power of a court to entertain an independent action to relieve a party from judgment, order . . . or to set aside a judgment for fraud upon the court.” 

 On March 2, 2009 Judge McMurdie responded with the following Minute Entry (emphasis added),

 The Court has received Intervener’s, George Staropoli, miscellaneous filings.

IT IS ORDERED striking these filings.

IT IS FURTHER ORDERED that the Clerk of Court shall not accept any filings from George Staropoli in this case.

  Apparently, the Arizona courts have a different take on this doctrine of standing to sue when it comes to HOAs.  The decision and harsh attitude of the Judge, and the absence of any government agency or official to defend the statute, allows a paraphrasing of Carl von Clausewitz’s, “War is the continuation of policy by other means” (On War):

  “The judicial system is the continuation of policy by another means!”

  Read the complete story of OAH constitutionality at

The State of Arizona will not protect buyers of HOA homes!