Tag: CAI

Proposed “consent to be governed” statute, the “Truth in HOAs” bill

No provision of any contract or any declaration of covenants, conditions, and restrictions . . . is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties . . . . Any representation or statement offered as clear and convincing evidence . . . shall include a signed statement containing the following, beginning with “I understand that I can ask that the following be read and explained to my satisfaction.“

So reads an excerpt from my proposed “Truth in HOAs” statute that should be made law in each and every state. That is, if indeed the legislature stands by the Declaration of Independence and the US Constitution, which we are hearing so much about in the media nowadays. We know that CAI is opposed to such constitutional protections for members in HOAs, as the record shows in their NJ Twin Rivers appellate amicus brief. But, it is time for the legislators to “man up” and protect the people from harm inflicted by special interest groups. There is no necessary and compelling need for legislatures to deny the homeowner his rights, freedoms, privileges and immunities as a citizen of his state and of this country.

Read the complete proposed Truth in HOAs statute.

See also Public policy protects HOA principalities,

Calif. opinion: CC&Rs and surrender of constitutional rights

Calif. opinion: CC&Rs and surrender of constitutional rights

 

This is an important Calif. case on CC&Rs and the extent to which your “agreement” to be bound satisfies the waiver of your constitutional rights.  Arizona’s HB 2441  – written by CAI — proposes a waiver of access to the courts by homeowners.  CAI wants it in law rather than by contract to avoid a similar ruling.  As I said before, they have an answer  or “out” for anything that they propose, which always leads to the courts and $$$$  for them.  And, Arizona’s  HB 2717 had a restriction on incentives for HOA attorneys to  run to the courts on every little thing — cut the fee awards to the them — rather than the HOA and homeowner trying to work it out first. It has been removed by the sponsor.

Here’s a few quotes from the California opinion, emphasis added.

 

Treating CC&R’s as a contract such that they are sufficient to waive the right to trial by jury does not comport with the importance of the right waived. CC&R’s are notoriously lengthy, are adhesive in nature, are written by developers perhaps years before many owners buy, and often, as here with regard to the waiver of trial by jury, cannot be modified by the association. Further, the document is not signed by the parties.” (Treo, supra, 166 Cal.App.4th at pp. 1066–1067.)

 

CC&R’s are generally, as here, adhesive and unilateral and those bound by their terms may only have constructive notice of those terms and no contractual relationship with the developer who drafted the CC&R’s.

(This case focuses on the narrower question of waiver of jury trial).

Source:  Villa Vicenza v. Nobel Court Dev., 191 Cal. App. 4Th 963 (Cal. App. 4th Dist. Jan. 1, 2011).

To the valiant advocates fighting for HOA reforms:

Some words of encouragement on this President’s Day.

The task of educating the legislators, the courts, the media and the public as to all the factors inherent in the HOA legal scheme is a dauntless task.  Advocates have been doing battle against a fortified adversary with funds that has indoctrinated the many into accepting certain benefits, and instilling fear into the many of dire consequences.

The national lobbying trade group alleges that, if the HOA legal scheme is made to conform and adhere to our American system of government, where individual rights and freedoms come first before the objectives of the “state”, the HOA, all would be lost.  This same trade group claims to have  an educational mission, yet only instructs the people on how to live and accept the authoritarian HOA regime under its adhesion contract and under pro-HOA special laws.  Yet, it maintains legislative action committees in all 50 state legislatures to insure that its teachings and view of the new American political and social systems continues to prevail.

Do not falter, do not dishearten, as you continue to battle before the legislature for your rights as an American.  Take heart from the words of President Theodore Roosevelt in a speech made in 1910: 

 The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

Courage, and remember:  Illegitimati non Carborundum.  Don’t let the bastards wear you down!  Gen. Joseph Stillwell, WW II.

 

AZ legislature falls for CAI lobbyist ramblings – HB 2441

I just watched the Arizona CAI lobbyist, Kevin DeMenna, spew forth misleading statements and irrelevant  ramblings in support of HB 2441, before the AZ House Government Committee on Feb. 8, 2011, in an excellent example of professional spin.  And the committee members bought it, lock, stock and barrel with its 8 – 0 vote. Based on the few questions asked by the committee members, apparently all that counts is the information provided by paid special interest lobbyists, and the statements by informed and knowledgeable citizens are given scant attention.

  

Were the members sleeping when DeMenna stated at the very start that, “We are are the managers and association boards’ duly elected . . . and what have you.”  (That’s a technique in advertising to avoid fraudulent advertising). Obviously,  no committee member read or understood my plain language that CAI is a business trade organization not permitted to have HOA members, and that all those “volunteers” do not speak for their HOAs. 

 

I had emailed the committee my detailed analysis of the bill (Analysis of AZ HB 2441, the HOA minority control bill), and wrote again in my 2/6/11 email saying,

  

However, for years CAI attorney lobbyists have been misrepresenting that they speak for HOAs and is homeowner members.  HB  2441 continues this misrepresentation and interference into the HOA CC&Rs contract for the interests of attorneys, and not the HOA or its members.  CAI AZ spends more money on lobbyists activities than on its educational programs, which is the stated basis for its tax exemption. (See its 990 EZ).

  

Apparently, the democratic process previously extolled by CAI means little to them in regard to HB 2441 where CAI supports the position that  a minority can take away the private property rights of the homeowners without their consent. DeMenna gave false and evasive replies that the courts will uphold a validly enacted amendment.  Section 3.1, Validity of Servitudes, of the Restatement (third) of Servitudes clearly states that covenants are not valid if they are unconstitutional, contrary to public policy or are unreasonable.   DeMenna easily misleads the committee with his false analogy of legislature’s frequent interference with contracts across the state in Santa Cruz and Cochise counties, which are not private contractual governments!  (More slight of hand).  Of course, the CAI lobbyist first slicked them with an admission that HOAs are “in effect, little tiny, mini-governments.”

  

The DeMenna & Associates Ethics web page proudly states that, “we will consistently uphold the highest standards of personal integrity” and “will always do our best to win.” DeMenna’s conduct before the committee reflects the extent to which he will go to win, and his ethical standards.

 

In my amicus curiae brief in the OAH constitutionality challenge before the AZ Supreme Court (Gelb v. DFBLS, CV 10-0371-PR)  I wrote, justifiably with respect to this astonishing vote,

“It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE for due process protections and the equal application of the laws.”

 

 Source:  House Archives. Click on “video” for House GOV, 2/8.

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AZ Supreme Court accepts advocate’s amicus brief in challenge to HOA statute

The Arizona Supreme Court has accepted my amicus curiae brief in support of constitutionality of the DFBLS/OAH due process statutes (Gelb v. DFBLS, CV 10-0371-PR). The Court has yet to decide if it will hear the Petition from the homeowner. Neither party objected to my brief, not even the CAI HOA law firm that received harsh treatment. I had presented background facts and arguments in an effort to assist the Court in understanding the disgraceful state of affairs with HOAs.

Responses to my brief, if any, are due within 20 days. For over 10 years I’ve been waiting for the CAI HOA attorneys to debate the substantive, constitutional issues with me for all to see.  I await their response.

The excerpt below makes a strong accusation against the Arizona Legislature, which can be applied to all state legislatures. Given this posture,  I would like to thank those all too few individual legislators who had come forth over the years, in several states, to do battle for homeowner justice, but who were not sufficient to overcome the opposition in their legislatures. Your efforts are very much appreciated.

From the first paragraph of my Conclusion:

It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE (real estate dept.) for due process protections and the equal application of the laws. Even the lower courts are suspect. With all due respect, it remains to this Court to stand behind the promises and covenants between our system of government and the people as set forth in the U.S. and state Constitutions.

See Advocate submits amicus brief in AZ supreme court appeal of HOA due process, and for a copy of the amicus brief, Amicus.