Tag: CAI

All state “may/shall” statutes imply HOAs as state actors

The use of the words “shall” and “may” have generally accepted meanings in state laws and statutes. Their use in bills and laws relating to HOA-Land raises the highly controversial question of: Are HOAs state actors?  “The overlooked impact and consequence of this word is to legalize activities and actions that were all-to-fore not legal rights granted to the HOA.”[1]

Arizona’s HB 2575 creates HOAs as state actors with the slick use of the legal differences between these terms. BUT, as applied to sui generis HOAs, implicitly create state actors. The bill introduces a new section (emphasis added) with, “ARS 33-1820. Powers of the association. Subject to the provisions of the declaration, the association may:” A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents. Very clever!

Item 4 is particularly onerous because of the use of the introductory “the association may.” A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents. Very clever!

Item 4 was particularly onerous because it permitted the HOA Board to lobby in the name of the members.

“[the association may ] 4. Institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more members on matters affecting the association or planned community or the members’ interests.”

After 3 sessions ending with “ret on cal,” (retain on calendar)  I emailed my may/shall state actor argument (as summarized here) to the legislative leadership resulting in the sponsor’s amendment rewording item (4). In relevant part, “the association may not institute, defend or intervene in litigation or arbitration in its own name on behalf of itself or a member.”

Thus, a potential constitutionality challenge was avoided as I had instituted in 2013, and won, with the help on a nonprofit legal organization, Arizona Center for Law in the Public Interest (ACLPI).[2]

Although the bill passed out of the House with the other argument that the 12 items also reflect an implied state arm it was a major victory 1) on a broad constitutionality issue and 2) a punch in the nose to CAI who actively sponsored this bill, according to the AZ Homeowners Coalition.  CAI can be beat!

There are other arenas to challenge and expose CAI for what it is and stands for.  I present some 56 events over 24 years that serve to guide what worked and what did not work for advocates to successfully challenge the Evil Empire. Organized into 4 sections: On Reform Legislation, On The Bill of Rights, On the Judiciary, and On Civics.[3]  Available on Amazon, paperback or Kindle.

References

[1] See in general, Are HOA state actors created by statutory use of shall/may? (Section 2, paragraphs 5 +). (2019).

[2] Suing the AZ Legislature: AZ Attorney General admits SB 1454 HOA to be invalid and without effect.

[3] Read the book, HOA Constitutional Government: the continuing battle. 

Getting your HOA reform bills accepted

I’m pleased to see many of you are using my Commentaries on HOA Constitutional Government as part of your efforts to bring about HOA reform legislation.  Allow me to recommend a procedure that should improve more success in getting your legislators’ attention. Justification for my arguments below can be found in the “Recommend texts” below; homeowners and advocates cannot neglect these works of mine and others.

  • Legislators are immerged in tons of emails by many persons and “robo emails” — the same email sent by many persons —  get slight attention;
  • There is some success that your district representative will sponsor your bill and your reforms;
  • Emails from state residents to bill sponsors and committee chairs and members are generally read, but outsiders receive less attention unless   strong credentials are provided to counter CAI’s credentials;
  • The main focus of your email should be your reforms with the inclusion of works from others being supportive.
  • Have no fear of show the ugly forest through the trees by addressing constitutional violations that support your reform legislation — over my 24 years CAI has ignored any such discussion and will fight like hell to avoid constitutionality issues (I challenged them back in 2006, no response);
  • CAI and the legislators  will not put themselves in a highly vulnerable position of having to defend the indefensible, a rejection of the Constitution; it is their Achilles heel;
  • Have no fear of raising the important issues of intentional misrepresentation in the claimed  “you agreed  to be bound” CAI defense, invalidating the legitimacy of the adhesion CC&Rs contract;
  • Don’t be penny wise and pound foolish – spend some small change and get copies of publications that will serve as textbooks on getting your issues heard before your legislature (see “Recommended texts” below).

Recommended texts

Privatopia, Evan McKenzie (seminal book on private HOA government)

HOA Common Sense: rejecting private government, George K. Staropoli (entry level constitutional violations)

Take Back Your Government, Morgan Carroll (out of stock at Amazon; eBay, Thriftbooks)

HOA Constitutional Government, George K. Staropoli (a one volume collection of 56 events and situations over 24 years)

Will the AZ Legislature reject the Constitution: does the HOA control public streets?

Thanks to Dennis Legere of AZ Coalition, AZ HB 2470, as far as I can tell form LegiScan, there are no amendments to this bill. Interpretation: caps are new provisions; strikeouts are deleted.

“33-1818. Community authority over public roadways  A. For any planned community for which the declaration is recorded  after December 31, 2014 and Notwithstanding any provision in the community  documents, after the period of declarant control A GOVERNMENTAL ENTITY  ACCEPTS THE TRANSFER OF OWNERSHIP OF COMMUNITY ROADWAYS FROM THE  DECLARANT, an association has no authority over and shall not regulate any  roadway for which the ownership has been dedicated to or is otherwise held  by a THAT governmental entity.”

Sections (B) and (C) of ARS 33-1818 are deleted in their entirety. Note that there is no “IF” qualifier meaning that the bill is a mandate for state action. The bill states the law for all HOAs.

As of this date its sitting in the Rules committee. It must pass Rules in order to go to the floor for a House vote. Then again in the Senate. Therefore, advocate Call To Action is to email the House Rules Committee members and argue to pass on the bill for a floor vote. Let all the Representatives have their democratic say.

Historically, this control of public streets issue  started back in 2014. A comprised solution was found in  2014 (I was then involved with Sen. Barto) that split who controls into 2 time zones. If HOA formed after 2014 the municipality controls, otherwise control status remains as of 2014. The only active and relevant HOA, or pseudo, HOA was Sun City West — Up until 2025. STAY AWAKE, more coming.

The new bill, HB 2470, amends a technical correction amendment of 2023 (HB2298, CH. 84)) relating to ARS 33-1818. It stated that HOAs formed prior to January 2015 must call for a vote of the members to retain the HOA’s control of public streets within the HOA. Only if it already “regulates any roadway,” which I believe is only Sun City West – those  retirees.” (My HOA falls into this category, before 2015 with public streets, but not regulating them).

This bill makes it clear that once the developer/developer turns the streets over to the state, HOAs have no control over public streets within the HOA. A solid stand in support of the AZ Constitution and the laws of the land. Obviously, an HOA with no public streets is still possible, and the HOA bears all costs for the street.

There 98 RTS entries FOR the bill, and 30 opposed, including CAI, the League Of Arizona Cities & Towns, the towns of SURPRISE,  Gilbert and Goodyear.  I recognize some opponents as being individuals who are CAI member attorneys: Lynn Krupnik and Jason Smith.

This bill is really a power struggle between CAI and state enforcement of  the Constitution. Why then is CAI once again vehemently in support of private government HOA control of public streets and not the state when there are existing laws that would meet an HOA’s objective?  Specifically, seeking a variance from their local planning board, and in general creating HOAs under Arizona’s Home Rule statutes, which makes them  a municipality. Why? Because the real import of the bill is CAI’s control of HOA-Land without state oversight. One aspect of a slow death to a democratic America.

Misinformation & disinformation in HOA-Land

“Mirror, mirror on the wall who’s the dishonest most of all?  My owner, you are dishonest here so true,  but the CAI clique is a thousand times more dishonest than you.”

The above paraphrasing of the Brothers Grimm fairytale, Snow White, sets the framework for this Commentary, which is the spread of misinformation and disinformation about HOA-Land. “Misinformation”[1] is misleading or false statements of the facts made innocently by the author.  On the other hand, “disinformation”[2] is  intentional misleading or false statements of the facts issued to advance a special interest agenda.

My reference to owner misinformation is based on countless posts, not all posts,  on social media in which only part of the facts is revealed. Obviously, those the writer wishes to be made public, but hide material facts to permit an honest and objective evaluation of the content of the post. They create a harmful and damaging image of just bellyaching and gripes and not advancing a cause for reforms.  I am disturbed by their unsupported allegations and cries — they lied, were not fair, judge is biased, etc.

There are also social media distributor/publisher websites that  carry misinformation and often publish links that have been created to provide disinformation. These websites provide misinformation since many do not examine the content of the link.

The CAI “clique” — CAI chapters, the Research Foundation, the numerous lawyer advocates websites, shill associations like ECHO or CALL, and supportive HOA websites — provide outright disinformation that goes unopposed by homeowner rights advocates. As simple examples of its communications, the CAI clique continues to advertise that it represents homeowners and associations, that its primary function is education and not a trade group, to legislatures, the courts and the public.  Disinformation is intentional misrepresentation! 

. . . .

In general, nationally, disinformation can be found almost anywhere, and in particular in national  politics. The national dynamics causing the spread of disinformation is explained by the author, Lee McIntyre; the causes hold  true to disinformation in HOA-Land an important segment of our society.

“McIntyre explains how autocrats wield disinformation to manipulate a populace and deny obvious realities, why the best way to combat disinformation is to disrupt its spread. ‘On Disinformation’ lays out ten everyday practical steps that we can take as ordinary citizens—from resisting polarization to pressuring our Congresspeople to regulate social media—as well as the important steps our government (if we elect the right leaders) must take.”[3]

For advocates, the way to stop the disinformation is to educate first the advocates so they can educate the legislators and the public. The Findings, Section II, Education for Homeowners Associations and Board Members, of the South Carolina HOA study report (2015) to the SC General Assembly recommended,

“In order to provide accurate and readily available resources to educate homeowners, board members, and interested persons about the duties and responsibilities of property ownership in an HOA community, the General Assembly . . . to seek reliable and unbiased information available from private entities . . . and provide for published and online documents and programs offering HOA education . . . .”[4]

In 2021 I argued for the need for HOA-Land education by advocates.

“HOA Reformers are needed as educators to spread the facts about HOA-Land to the public in general; especially to the legislators, the media, the HOA boards, and to the universities and high schools. . . . The Plan first requires addressing the attitudes and views of BODs, the members, and the public in general.  The conditioning and indoctrination by the biased views of the national pro-HOA special interest entity must be de-conditioned by a program of reorientation.”[5] 

References

[1] Foundation  for Individual Rights and Expression (FIRE).

[2] Id.

[3] Lee McIntyre, On Disinformation: How to Fight for Truth and Protect Democracy (2023).

[4] “Study On Homeowners Associations”, Luke A. Rankin, Chair, South Carolina General Assembly (December 18, 2015).

[5] HOA Reformers needed to educate (2021).

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