Tag: CAI

Narrow interpretations of HOA law and Rule 11(a): CAI game plan?

 In order to understand CAI’s adversarial position to homeowner reforms and its activities to promote litigation challenges, we need to look into its activities and not its lofty pronouncements. As you know, Rule 11(a) requires that the attorney perform a reasonable inquiry into the genuine issues of law or fact of the HOA allegations before undertaking any law suit. (See HOA attorney failure to inquire into merits of a complaint — R Civ P. 11(a)). We can get a good idea of CAI’s motivations for pursuing litigation from its activities with respect to HOA reform laws.

In spite of strenuous opposition by advocates, the sponsor, Arizona Rep. Montenegro, pursued this bill, HB 2441, to the very last floor vote before it was soundly defeated. (See CAI soundly thrashed by Arizona Senate). His support for this disgraceful bill can only stem from 1) that he is true believer in the New America of HOA-Lands, or 2) that he succumbed to the heavy influence of the national trade organization, CAI.

Advocates had attempted to inform Montenegro and the legislators of CAI’s real intent, which was not the betterment of the community or the state of Arizona, but its own self-interests – control of the HOA landscape.  As further evidence of this opposition to the intent of the law, the former CAI chapter president and lobbyist, Scott Carpenter of Carpenter Hazlewood, released examples of what could be seen as “how HOAs can get around the law.”

In my comment to New Arizona laws for 2011 session — thanks to the legislators, I critique Carpenter’s “reasonable rules” that HOAs may impose on the recording of HOA meetings, the new HB 2445 law. One is a 24-hour prior written notice to the board, which can easily “disappear” at its convenience. Also, among is “reasonableness” are that all recordings must be on tripods and must use batteries – seems contradictory with respect to its stated concerns about safety issues. And that the HOA has a right to obtain a copy of the recording – at a reasonable cost. H’mmm, maybe the feel paranoid and that its own recordings won’t capture everything? Or is he just putting up obstacles “to make life difficult?”

Again, a CAI attorney, Carolyn Goldschmidt, takes up another controversial issue with respect to applicability of Title 10 statutes for nonprofit corporations and Title 33 statutes on HOAs and condos. (By the way, the resurrected statutes for ALJ adjudication of HOA disputes, SB 1148, does not permit the ALJ to decide issues outside of Title 33). Basically, does ARS 10-3708 or ARS 33-1812 control the holding of HOA elections and meetings? In an attempt to avoid the HOA statutes with respect to meetings and elections, Goldschmidt narrowly argues that an election without a meeting is valid under Title 10. Yet Title 33 contains strict requirements for meetings and elections – notice, ballot, agenda and quorums.

The HOA held an election that was not part of the meeting, as it claims, and the subsequent meeting just counted the votes but took no action. Say what? Isn’t a “certification” or a counting of election results at an annual meeting an “action”? And, as Goldschmidt well knows as she had participated in several OAH complaints, this dispute would not fall under the Office of Administrative Hearings jurisdiction by an ALJ. (And neither would the other very important common laws found in Chapters 6 and 3 of the Restatement (Third) of Property: Servitudes).

It is these actions in the real world and not the pontifications by CAI and it seminars, conferences, articles, columns or interviews that reflect what CAI is all about. That reflect CAI attorney pursuits of litigation, advertising and advising loopholes in the laws using narrow interpretations of the law, which can be highly questionable under Rule 11(a). And it is not about principles of democratic government within the New America of HOA-Lands or making for a better America or community, its about power over the HOA second form of political government. And attorney fees.

If charged with violating Rule 11(a), and so judged, can the HOA file against the attorney for its attorney fees?

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.

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.

The CAI ‘Philosopher-kings’ are best to rule HOAs?

 Behold! 

This time of year when state legislatures are in session and advocates are seeking to restore lost rights and freedoms, across the land we hear the voices of the self-anointed HOA “philosopher-kings”  from CAI. These legal-academic aristocrats fervently believe that their superior knowledge, training and understanding are best suited to govern  HOA-Land.  That All — the people, the HOA boards, the agencies, the courts and the legislatures — should behold and obey their voices of wisdom.  

But the truth is, is that anyone attending a CAI conference, seminar, class, lecture or program, or who reads any of its printed materials, or hears its lobbyist speak beofre the legislature, will not encounter any serious discussion of the constitutional issues as set forth in the “Truth in HOAs” Disclosure Agreement. Rather, he will be treated to one of CAI’s “educational”, “indoctrination” or, as I call them, “recycling” programs, designed to teach attendees what is necessary to live happily under the authoritarian HOA regime. And not subject themselves emotional stress or financial loss.

While CAI maintains that it teaches the law as it is, it fails to educate attendees as to the negative side of HOA living — the loss of rights, privileges and immunities as a citizen of the US and his state. Nor does CAI inform the attendees as to its role in shaping HOA laws as a result of its intense lobbying efforts. CAI, therefore, is guilty of misrepresntation by half-truths. If those who are in the know do not object, what can be expected of those seeking to know, the attendees? And how can they know if they are not so educated and no warning or advisories notices are published by state agencies? (This was a defense by the common German citizens in response to why nothing was done to oppose the Nazis). This is not the conduct of the philosopher-king who believes that the truth was necessary for good government and good rulers.

 

 

Plato introduced the concept of “philosopher-king” in Book VI of his Republic where he discussed what type of government is best, and who is best to rule the people.  This concept placed high value on  learned persons who pursue true knowledge, and therefore those who know best should rule best.  The philosopher-king served as a basis for modern day utopian societies of technocrats running society; such as communism and the Community Associations Institute (CAI) that was initially created with all the “stakeholders” as part of the ruling body.  The stakeholders represented the various industries of interest participating in the governing of this hopefully altruistic organization. CAI was to resolve HOA problems and to lead the people to paradise on earth (my sarcasm).  (See Chapter 5 of Privatopia, , and Community Associations by Donald Stabile (2000), a CAI & ULI funded book).

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.