Tag: bad laws

No unreasonable HOA expectations

A healthy democratic society cannot be said to exist without  a representative government making fair and just laws. A practical, real-life approach gave rise to the legal concept of reasonableness in an attempt to classify and designate conduct underlying a fair and just administration of the law. The reasonableness doctrine has finally come to HOA disputes in regard to reasonable expectations.

CAI has opposed the doctrine of reasonable expectations as too vague, too iffy, and disrupts the order and structure of the HOA “community.” In its amicus brief CAI argued that “reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants.”

The full commentary is a lengthy legal exposition examining 3 Arizona cases on the application of a homeowners’ reasonable expectation at time of purchase. Read it here: Reasonableness public policy. “reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants

Stare decisis – promoting bad HOA statutes

Stare decisis is the long-held doctrine underlying precedent or following and upholding existing laws.  And if the laws are bad, well then, so are any new laws based on the bad precedent. Those of us as homeowner rights advocates are well aware of the harmful impact of stare decisis on homeowners.  See Rejecting unjust HOA legal precedent (2010).

Stare decisis was a very big issue in today’s SCOTUS hearing on Roe v. Wade.   Should this long held precedent be supported or not followed for reasons of “bad law” as argued by some.  The principles governing  stare decisis are, as should be expected, very complicated, so here’s the short of it as best I can determine.

Alexander Hamilton explained that “[t]o avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.”   But it is not a “mechanical formula” or “not set in stone.” The issues dealt with “strong grounds” because “the Court’s willingness to overrule its past decisions is the only way to correct an erroneous constitutional interpretation.”  Was the precedent wrong in the first place (as now being argued with Roe)?  Whether “less harm will result from overruling the decision than from allowing it to stand?

Advocates must make the courts realize that most of the HOA statutes in every state must be overruled on constitutional grounds.  Otherwise, homeowners will never be able to rise out of the muck and recapture true US citizenship.