buyers – HOA Constitutional Government

HOA Syndrome reaction: you knew what you were getting into

Professor Gary Solomon held his seminar describing a collection of physical and emotional disorders collective named, the HOA Syndrome.ⁱ In the Las Vegas FOX5 News coverage of the eventⁱⁱ, Solomon said “dealing with a homeowners association is enough to cause physical and emotional harm, including stress, anger, fear and paranoia.” He added, “Harass the neighbors enough, keep them in line and set them up with fine after fine after fine.”

It may be a surprie to some, but this is not new stuff. Viewing these same symptoms from a legal standpoint, Donie Vanitizian, JD, wrote about Post Traumatic Stress Disorder (PTSD) in her 2002 book, Villa Appalling!ⁱⁱⁱ Part II of this 519 page book is devoted to these issues and the causes of these issues. Examples include:

“Toxic Turmoil – “Because there is no viable means for homeowners to express their frustrations with the conditions under which they are forced to live, they are plagued with acute stress. . . . With no government agency interested in their plight or the problems created by these developments in general, homeowners are left to their own devices.” (p. 225).

Vanitizian goes on to say that, Homeowners very foolishly trust that board members automatically have a ‘conscience.’ They don’t. Homeowners blindly look to the association as a ‘figurehead’ that somehow oversees that justice and truth prevail. It doesn’t.” (p. 233).

As expected, denials came from association managers who are at the heart of the HOA Syndrome, as HOA boards defer the operation of the HOA to these persons. In a statement by one manager, speaking about the homeowners, we see the truth of the matter when the manager states, “Homeowners shouldn’t complain because they knew what they were buying into. You know what the expectations are.” This a frank admission of the oppression and intimidation caused by HOAs that produce anxiety, fear, emotional stress, and the obvious loss of one’s home and financial conditions. Does this person really believe that Americans are demented and masochistic, relishing injuries to be inflicted upon them? And freely, openly, and willing accept these conditions while giving their home as collateral to the survival of the HOA, and forgoing any semblance of due process protections for the greater glory of the HOA? Really!

I ask this manager and all managers, especially those trained by the national HOA “educator” Community Associations Institute, CAI, “How come you by this falsehood?” This attitude reflects a “You’re damn right we consider the harsh, unjust strict enforcement of arbitrary rules as the way of life in an HOA.” Most of these so-called professionals do not understand the origins and intentions of the profit-seeking individuals who created this legal scheme, where these authoritarian and draconian methods were necessary for the survival of this new, untried approach to housing in 1964. And is still carried forward today where state legislators see no evils with authoritarian, private governments protected by state legislation — no enforcement by means of penalties for HOA board violations, but the homeowner can lose everything — and operating outside constitutional protections. The HOA, for some unstated government interest, must survive and the Constitution can be denied when necessary!

So, what do HOA boards and managers have to fear if they are unethical, violate state laws, and are grossly unjust and arbitrary in their dealings with their members? A slap on the wrist, maybe, if the homeowner is principled enough to spend his time and money just to get the HOA to do what it’s supposed to do. Apparently, our government doesn’t think that the compliance by private government HOAs with their statutory and contractual obligations is not a matter of general public concern. Apparently, they, too, believe in a masochistic and demented American population who cherish living under such conditions and need no protections.

Welcome to the New America of HOA-Lands.^iv

References

i See “Psychologist defines the HOA Syndrome caused by oppressive HOAs”, HOA Constitutional Government, October 7, 2010.

ii See “Professor: Homeowners Get Ill From HOAs”, Fox5 News, Las Vegas, October 1, 2010.

iii Villa Appalling! – Destroying the Myth of Affordable Community Living, Donie Vanitizian and Stephen Glassman (Villa Appalling Publishing, Inc 2002).

iv See Understanding the New America of HOA-Land, George K. Staropoli (StarMan Publishing 2010).

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.

HOA resident applicant questionnaire

I received an email the other day asking for my expert opinion on a proposed application questionnaire for HOA renters. I replied by asking if the questionnaire would apply to buyers, also, to which the emailer responded, Yes. Here are the areas of concern as to what should be asked of applicants:

1) Requiring a stated income level (i.e., $30,000, $50,000, $70,000 and so on):

2) Requiring last two year’s tax returns:

3) Please comment on credit score section (Page 1, #3):

4) Please comment on 30-day completion time:

5) Please comment on personal interview by board of directors:

6) Please comment on statement concerning “board’s decision will be final and no reason will be given (i.e., denial).” This statement is immediately above signature line on Page 4:

I responded with:

Adopting such an approach would befit an exclusive community — for those few good men, and women. It would probably reduce the desirability for the general public, but may attract the few. It would also hurt sales by existing owners. I believe the promoters of planned communities going back to the gitgo knew that HOAs were not for everybody, but they were interested in the mass merchandising of HOAs to everyone.

Financial status was already checked by the mortgage insurers, so it buys the HOA very little in any greater protection. Maybe in regard to getting some assets from the unethical, in my onion, foreclosure auctions.

However, it will allow a people to people discussion to get a better “feel” for one another. But, then again, only half the story would be told, since there does exist this unspoken alliance of “No Negatives About HOAs.” For example, would the board be willing to say to prospective members, “You understand that your home will be collateral for the survival of the HOA?”

It would be interesting to know how this approach plays out.

CAI continues the civil vs. private HOA government "turf wars"

Arizona CAI is at it again, fighting every little “turf war” to control the powers and authority over the members of the community, regardless of what the common law, real estate law, or constitutional law may hold.

HB2345

We go from controlling parking issues on public streets to restricting access to one’s home. Under the law, every owner has the right to ingress and egress to his home, and the right of visitors and family members to have access to his home. Under the right to advertise the sale of a home, Scott Carpenter has spied a loop-hole in the new HB 2345 bill signed into law, where is advises his faithful followers that, you know, you can prevent open houses in gated communities. He is cautious to state, “But nothing in HB 2345 requires an association to provide access to potential buyers when the access protocol in place would not permit their entry.” And he stops there without qualifying things like, signing in, like placing a sticker on the dash, etc., but leaves readers to the false conclusion that they can stop open houses in some way.

This is an outright failure to recognize the intent of the legislature, and to “stir up the pot”, knowing full well that any such harassment of potential buyers and visitors would be seen as an outright “restraint on alienation” under property law — a clause that seeks to prohibit the recipient from selling or otherwise transferring his interest in the property.

HB 2768

Here, Carpenter attempts to muddle the waters with respect to transfer fees. He says to the HOA boards, go forth and amend your CC&Rs (and we will be glad to show you how), at our usual fee) to make the fees for reserve purposes a “legitimate” covenant. “By virtue of the exception, HB2768 will not prohibit the enforcement of “transfer fee covenants” in governing documents if the fee or charge is to be used “exclusively for the purpose authorized in the document” And Carpenter also points, hey guys, collect these fees for recreational purposes, which the law still allows. Once again, ignoring the intent of the legislature on behalf of their separatist, secessionist private principalities.

These “turf wars” will continue until the legislature finally takes a strong hand to properly restrain these lawyers and HOA boards, and assert the supremacy of civil government over contractual, private governments that reject the Constitution.

Source: http://blog.carpenterhazlewood.com/scott/ HB 2345 and HB 2768.

Government of the people, by the people, for the HOA

The following email letter from Mr. Brown to the Arizona legislative leaders reflects his concern about democracy in America. (For more information on this HOA bill, please see public streets: the battleground for private or public government control).

My dear President Burns, Chairman Tibshraeny, Vice-Chairman Harper, Members of the Senate Government Institutions Committee, Senator Bunch, Representative Barto, Co-Sponsors of HB2153 and Representative Barnes:

“From time to time we read in the newspapers, or hear on the radio, about policies and procedures and practices in the Arizona legislature. Most often that which we read or head is critical of how the legislature goes about its business. Words such as “fair” and “open” and “level playing field” are used, as if to imply that the legislature should operate in a significantly different manner that it does.” Senator Randall Gnant, “From Idea…..To Bill…..To Law, The Legislative Process in Arizona,” February 2000

The Guest Opinion, “Who controls public streets,” Arizona Capitol Times, April 1, 2010, is on-point re the proposed HB2153 legislation as well as the global issues respecting associations’ control of property not owned by an association, associations’ control of the conduct and actions of Arizona citizens clearly not subject to the association’s governing documents and associations’ coveted power and dominion over homeowners subject to the association’s governing documents, the sacrosanct “private contract.”

Association stakeholders opposed to HB2153 regularly blur the lines between their long-held belief in “private contracts” not to be interfered with by federal, state, county and/or municipal governments and certainly not the legislature unless and until it suits the stakeholders and their client associations’ interests as evidenced by associations’ growing reliance on “what can government do for” stakeholders and associations today. (See Community Resource, Issue 1 / 2010, “What Your Local Government Can Do For You,” Community Associations Institute / Central Arizona Chapter, attached)

“Getting a hearing on a bill is a crucial first step for individual citizens, lobbyists, special interest groups and state agencies..in the Senate, bills that receive a hearing have a high likelihood of passing the full Senate. So, while failure to secure a hearing is a virtual disaster for a bill, getting a hearing takes a bill on the longest step towards becoming law.” (Gnant)

Please include HB2153 on the Committee On Government Institutions’ agenda, Consideration of Bills, permitting the peoples’ representatives in the Senate to vote on the bill’s passage as your brethren in the House, the people’s other representatives, did so on February 17, 2010 (43/14/03).

Respectfully,

William M. Brown

share

share

share

share

share