Tag: constitution

State legislatures and HOAs: When will they ever learn?

It should not come as a surprise to anyone that state legislators have allowed the HOA legal scheme, which they have played a strong hand in supporting, to deny the equal application of the laws for all, and the loss of constitutional protections. 

Free speech, flying the flag, due process, clean elections, etc. have been denied by HOA regimes.  Even noted CAI member attorney, Adrian Adams, speaking about HOAs in the Davis-Stirling online Newsletter article, Animal Sacrifice: “Just as private organizations can restrict free speech, they could conceivably restrict religious practices that negatively impact other members.

The denial is basis on the specious and false argument of a “consent to agree.”  A consent that falls dismally short of meeting Supreme Court judicial scrutiny for constitutionality. All the HOA has to show is an HOA interest for the benefit of the entire community and the courts will find no problem, just as if the HOA were a government entity that has some legitimate interest in the issue.

Furthermore, legislators accept the argument that any validly passed CC&Rs amendment binds everyone including any dissenters, regardless of its relevance, bearing, or reasonable expectancy of the restrictions being imposed on owners.  It’s the “general government interest” approach. It appears that public government attributes are ascribed to the contractual HOA, with the contractual terms are being ignored.  All reform legislation is an attempt to restore those rights wrongfully denied the homeowners, on a case by case, HOA by HOA, state by state basis. 

HOAs are not de jure governments — not state entities.   But, they are de facto governments operating under state legislature protections, but in contrast to all other government entities, without constitutional protections.  HOAs are unrecognized governments as is Cuba, but functioning nevertheless every day.

When will legislatures learn?  When will they undertake an independent study of HOAs with a truly independent “think tank”?  Like the Arizona State’s Morrison Institute for Public Policy.[i]  When?  Perhaps never, since they don’t seem to really want to know, and perhaps because they know what the findings will show.

[i] “Morrison Institute provides public policy research for government agencies, private associations, nonprofit organizations, and communities. In conducting research, analysts draw upon a variety of disciplines and methods: collecting original data through public opinion surveys, interviews, and consultation with experts; and analyzing existing information through review of published research reports, current legislation, and statistical data.”  (See http://morrisoninstitute.asu.edu/about/about-the-morrison-institute).

HOA democracy at work: dysfunctional adoption of amendments by minority vote

 

OPEN LETTER TO  TERRAVITA CA MEMBERS

Understand what a YES vote means for Terravita and your image as a citizen

Summary

The writer provides an example of how HOAs create a dysfunctional, un-American community, using arguments against the adoption of CC&Rs amendments on two occasions by the Terravita CA in Scottsdale, AZ.  In the first instance, amendments that violated Arizona statutes in regard to the content of the ballot were approved in 2010. One non-disclosed amendment made significant reductions in the requirement for adoption of future CC&Rs amendments, from a supermajority vote to a minority vote.  (In 2011, the Legislature defeated a CAI drafted bill that would allow for minority control of HOAs). 

The current amendment reflects an undisguised intent to punish one member for filing Office of Administrative Hearings (OAH) Petitions against Terravita.  Attorneys are not awarded fees at OAH because they are not required, yet the poorly constructed amendment removes attorney fee awards in civil court actions.  As a result of the approval of the non-disclosed “minority control” amendment in 2010, a minority of only 307  out of 1380 votes will be required to adopt this Board approved punitive amendment. 

Without any prior open discussion or debate, the distributed Absentee Ballot is one-sided in favor of the Board without opposing arguments. Adopting these amendments by a minority of members reflects an un-democratic and dysfunctional culture within Terravita.  The objectives of the “corporate state” are primary and individual property rights are secondary. Members are urged to reject the amendments.

Read the full letter here . . .

When can a homeowner withhold HOA assessments?

In January the Illinois Supreme Court agreed to hear the condominium case, Spanish Court Two Condominium Association v. Lisa Carlson, No. 115342, that breaks with the commonly held legal doctrine that HOA members are not permitted to withhold paying assessments, even when the HOA has failed to make necessary structural repairs to the condominium. Courts have held that HOAs are subject to servitudes law foremost, and that the common good required for the survival of the HOA is paramount.  Therefore, payments must not be withheld in spite of any outstanding controversy.

 In Spanish Court the appellate court held that a HOA condominium owner could withhold paying assessments because the relationship between the owner and HOA was similar to that of a tenant and landlord.  The contract in both situations involved mutual promises of making payments in return for HOA services to maintain and repair the property.  The court held that under contract law the withholding of payments was permitted. This decision broke with precedent, bringing justice to homeowners against special laws for HOAs.

 The courts in other cases and in other states have held that the declaration of Covenants, Conditions and Restrictions (CC&Rs) are a contract to be interpreted as a contract, but then apply servitude law over contract law, and even over constitutional law.  (See the Restatement Servitudes, § 3.1, comment h and§ 6.13, comment a).

 For example, this holding stands in contrast to the January 2013 Illinois Supreme Court ruling in Poris v. Lake Holiday POA (No. 113907) that allowed HOA security personnel to stop and detain drivers who are violating HOA rules, and not municipality ordinances. Here, servitude law prevailed over constitutional law.  And, in 2007 the Twin Rivers HOA (NJ) free speech case (CBTW v. Twin Rivers, 929 A.2d 1060) held that the business judgment rule would protect homeowner rights, and that there may be some instances where constitutional concerns could come into play.

 The Illinois appellate court admitted to the fact that its opinion stood alone in favor of the homeowner and contract law when HOAs are involved.  If the preponderance of the cases is to control, then homeowners can expect an Illinois Supreme Court reversal of the appellate decision as it did in Poris. Homeowners and justice should not be too enthusiastic about the right to withhold assessments in HOAs.

Az & TX legislators criticized for failures to support homeowner rights in HOAs

I let the Arizona Legislature know that advocates are not as stupid as they would like to believe (See Observations on AZ legislative treatment of HOA reform bills We know what is going on and has been happening for years with respect to legislative support for private government HOA regimes. HOAs that deny homeowners their rights and freedoms while imposing harsh penalties only on the members and not on the HOA boards.

The attitude of the legislatures appears to be: The HOA must survive at all costs – it’s a matter of national and state security so constitutional protections be damned.

A leading Texas advocate has added to this exposure of legislative cooperation, support, and coercion to permit HOAs to rule without accountability. Read her Open letter.

There are 4 main constitutional issues that are continually ignored by the legislatures: clean elections procedures; due process and the equal application of the laws; ‘consent to agree’ fallacy; and that the Constitution is only about ‘no contract interference.’ These issues must be addressed and reforms instituted, but they are not addressed because the legislators well know that they are defending the indefensible if they speak out.

It falls to the true advocates for HOA reform to have the courage to speak out about the reality of the HOA legal concept. They need to set the record straight about legislation supported and promoted by the so called “stakeholders”, the vendors (read as HOA attorneys and managers) who make money from the unrepresented and truly affected class, the private property owners, the homeowners.

Send a message to your state legislature.

Creating dysfunctional communities through HOAs

The current (Feb. 18, 2013) slogan on the Arizona CAI chapter website reads, “Creating Better Communities Through HOA’s”.  I find this statement to be entirely incredulous!  It dismisses the reality of an authoritarian regime that denies due process and the equal protection of the laws to homeowners. It asserts that kangaroo courts; the absence of fair elections processes; and a consent to the waiver and surrender of rights by the by simple filing of CC&Rs with the county without explicit, written agreement by homeowners all create better communities.

Such an attitude by pro-HOA lobbyist organizations is the primary cause that creates not better communities, but dysfunctional communities.  And from attorneys who proclaim to be experts on HOAs, but who clearly are ignorant of constitutional law.  (A leader of the AZ chapter is now president of CAI’s “best and brightest” lawyers group, CCAL). With the rapid growth of HOAs across the country, supported and encouraged by the state legislatures in all states, the HOA legal structure reflects values of the greater dysfunctional society that is becoming The New America of HOA-Land. 

The values, philosophies and standards of democracy set forth in America’s organic law — the Constitution, the Bill of Rights, the Articles of Confederation and The Northwest Ordinance of 1787 — are rapidly becoming a myth, but are still being taught in our public schools and misleading the people of America. 

Our elected representatives must restore our communities and society to those fundamental principles supporting our democratic system.  And that can be now with those HOA reforms bills now before your state legislature.