Tag: constitution

Constitutional free speech in HOA upheld in this surprising case

“Court documents indicate [homeowner] Immelt got upset after being told she had violated a homeowner’s association rule. Immelt borrowed a friend’s car, pulled up in front of the home of the neighbor who reported her and honked the horn repeatedly for up to 10 minutes. Several neighbors were awakened.

“Immelt was convicted of violating a local noise ordinance that prohibits sounding a horn for anything other than public safety or a publicly sanctioned event. Immelt appealed, saying her constitutional free speech rights were violated and that the ordinance was too broad. Her conviction was upheld in appellate court.

“While the court didn’t decide if what Immelt did constituted protected speech, it concluded that the noise ordinance Immelt was arrested under could ban’”protected forms of expressive conduct involving horn honking. It therefore fails constitutional scrutiny’.”

Who says the Constitution means nothing?

State of Washington v. Immelt, No. 83343-5, 2011 Wash. LEXIS 825,* (Wash. Oct 27, 2011). Very long case.

In HOA-Land, Halloween is verboten!

Texas Neighborhood Tells Family to Remove Halloween Sign From Yard.

This is one very serious aspect of how HOAs have redefined the American community, not only its landscaping aesthetics, but America’s social and political customs, traditions, and system of government. And all made possible by cooperative and biased state legislatures and courts that uphold the CC&Rs as if they were a contract, yet fail to apply “Contract Law 101” to these supposedly valid contracts.

The application of contract law, and constitutional law, would immediately invalidate the CC&Rs and the legal HOA scheme based on the seminal Homes Association Handbook of 1964.

Welcome to the New America of HOA-Land.

AZ OAH Constitutionality of HOA adjudication still lingers

In the first OAH Petition filed, 11F-H1112001-BFS, the North Slopes HOA filed a motion to dismiss, partly based on the unconstitutionality of the statutes. It was a feeble claim, especially coming from a national law firm. The ALJ, at the Oct. 19, 2001 pre-conference hearing, stated that the statute was constitutional until a court decision said otherwise. The HOA attorney then stated that it was filed to allow the question to be raised in a superior court appeal.  Here we go again!

My feeling is that we will continue to see constitutionality challenges as one of several defenses in future Petitions, and not as  the main focus of the defense, which  we saw with the repeated CAI attorney challenges.

AZ tenants have more AG protection than property owners in HOAs

The current AZ Attorney General, Tom  Horne, proudly displays and offers a 48 page handbook for tenants, basically covering the Landlord and Tenant Act, ARS 33-1301 et seq. It contains 2 full pages of where to get help, and sample forms. It can be found under Publications/Handbooks. What about a handbook for homeowners living in HOAs covering Condo and planned communities acts?

Both the L & T and HOA acts deal with private contracts, so that can’t be the distinguishing excuse not to provide a warning guide or advisory, which I’ve repeatedly urged be developed and quickly offered to homebuyers and those already under HOA regimes. It’s not like there are no issues of material fact, like misrepresentation, consent to be governed, loss of individual property rights, freedoms, privileges and immunities; and private governments not subject to the Constitution. Or that problems do not continually appear in the media. Homeowners who have written the AG’s office, and the Real Estate Commissioner receive a standard, No my job. Get the Legislature to write new laws.

Unfortunately, the problem you complained about is not within our jurisdiction. Our office enforces the Consumer Fraud Act, however, the Act does not allow our office to pursue private disputes. Our office represents the state of Arizona and cannot act as a private attorney for individual citizens.

The position of the Arizona Attorney General is unacceptable. The public policy position of the State of Arizona is unacceptable. It strongly reflects HOA protectionism even to the extent that the State permits the denial of constitutional protections for the people. And in a state that has loudly and firmly urged support for the Constitution and the need to uphold the laws of the land! I offer my Truth in HOAs disclosure poll — please vote your conscience, showing a solid rejection of these hidden facts, and the KPHO, HOA Syndrome survey: YES, it exists!,poll showing that HOA boards do inflict emotional stress on homeowners who disagree with the board.

I urge the Legislature to require ADRE and the Attorney General’s Office to provide a Truth in HOAs handbook containing the facts, the negative aspects, of living in an HOA. Such a handbook must address the issues contained in the Truth in HOAs Disclosure Agreement as set forth in the poll mentioned above.

Arizona Tenants’ Rights and Responsibilities Handbook

AZ independent HOA tribunal again under constitutional attack

The Arizona independent tribunal, Office of Administrative Hearings (OAH), must really be hurting not only the CAI lawyers, but all lawyers, too. OAH does not pay attorney fees and HOAs cannot expect to get fees from the homeowner. They have to pay from the total of assessments collected. And with a national law firm at its side, it will be paying big, very big.

In the opening rounds of this second period of adjudication, the first ending with 42% of the cases won by the homeowner, a national law firm undertook the defense of an HOA on the issue of an amendment to the CC&Rs. The amendment forced a homeowner to stop building her home, which she was legally entitled to under under her existing CC&Rs. In Wozniak v. North Slopes POA, OAH No. 11F-H1112001-BFS, filed July 22nd, the attorney seeks dismissal of the case based on 2 black and white claims: the homeowner failed to indicate what law or governing document provision was violated, and that North Slopes was, by definition, not a planned community and, therefore, not subject to OAH adjudication – the HOA does not own any property in the subdivision.

BUT, this did not stop Karen Karr of the national firm of Lewis Brisbois Bisgaard & Smith from an opening barrage against the constitutionality of the old statute — old news and moot – and the claims that the new statute is also unconstitutional. She is a labor management attorney. Obviously, the ALJ would dismiss the Petition based on the “black and white” laws and need not entertain the constitutionality question (as an earlier OAH case appealed to the superior court bypassed the constitutionality question). So why the fuss? Headlines? Coaching from you know who lobbyist firm who got scathed by its initial foray into the constitutionality issue, and seeks others to do its work? The one who promised to attack the new statutes? Could that be Carpenter Hazlewood?

The attorney spends 1 1/2 pages (of 7) on reciting history, not applicable to the new statute, and fails to state the fact that the AZ Supreme Court did not allow the appellate case of Gelb to serve as precedent when it declined to hear an appeal. In another 1/2 page, unsupported allegations are made as to the constitutionality of the new statute – no case law, no constitutional law, no administrative agency law. Why on earth bring constitutionality up in such a feeble manner?

My guess is that we will see another attempt, maybe more, to unseat justice for homeowners in HOAs. I mean, it took Carpenter Hazlewood 4 tries before it won  the appellate court, but not precedent, decision in Gelb.

BTW, why DFBLS did not outright reject this Petition is a mystery. Clearly it did not meet the requirements of proper adjudication. (While the new DFBLS Petition form asks for specific statutes alleged to have been violated, it does not ask about specific provisions of the governing documents that are alleged to have been violated). If DFBLS had properly rejected the Petition, it would have had to return the $550 fee.

Furthermore, I can understand the ALJ giving the Petitioner a chance to answer, but this ALJ, who is experienced in HOA matters, does not ask the homeowner to address these jurisdictional issues right-out, but seeks a pre-trial conference and entertains a motion for continuance.

Is there a “plot” to raise OAH expenses on frivolous matters in order to obtain evidence for a fee increase?  An increase that was already on the drawing board even before the law became effective in July.