Tag: constitution

Philippine HOA “Magna Carta” law not based on servitudes

Running through the first few pages of this 20-page PDF on what we would call an HOA Act, but called a “Magna Carta” for HOAs in the Philippines. “SECTION 1. Title. – This Act shall be known as the “Magna Carta for Homeowners and Homeowners’ Associations”. It is a combined social welfare land, reform act and local citizen governance by means of non-profit entities  that allow multiple HOAs within a subdivision.

There is no equitable servitudes law for covenants running with the land that make a mockery of US claims to be the best democratic country in the world. There is no private agreements to replace the Constitution, and allowing the Justices and judges to treat as if it were just another piece of paper.

Most decisions are made by simple majority vote, and members “shall have the following duties (a) to pay membership fees, dues and special assessments; (b) to attend meetings of the association.” It appears that the Filipino law contains most of the same operating provisions as found in the US version. However, audited statements must be posted annually and filed with the national government agency overseeing HOAs (Sec. 17(c)).

Now, how about this requirement of one unified government rather than independent principalities as in the US”

SEC. 19. Relationship with National Government Agencies. – The associations shall complement, support and strengthen the efforts of the national government agencies in providing vital services to their members and help implement the national government policies and programs.
Associations are encouraged to actively cooperate with national government agencies in the furtherance of their common goals and activities for the benefit of the residents of the subdivisions and its environs.
National government agencies shall consult the associations where proposed rules, projects and/or programs may affect their welfare.

Interesting reading for the American legal-academic aristocrats seeking to become Philosopher-Kings, and announce what is good for the American people.

AZ Supreme Court denied hearing the Gelb Petition to restore ALJ adjudication of HOA disputes

Yesterday, May 24th, the Arizona Supreme Court simply DENIED hearing this Petition to vacate the lower court ruling that the Arizona agency, DFBLS, had violated the separation of powers doctrine when hearing  HOA disputes .  Disappointing, but not surprising given the new laws to take effect on July 20th, that addressed the separation of powers opinion. It still allows DFBLS to deny accepting complaints since ARS 41-2198(3), the statute authorizing DFBLS, was not vacated. It still stands.

Consequently, in the event that a complaint is filed on or after July 20th and DFBLS denies accepting the complaint, another challenge to the constitutionality of the law would be necessary. If DFLS accepts the complaint, rest assured that Darth Vader is ready with another challenge.

Why is this possible? Doesn’t the appellate court opinion serve as precedent and that’s that? NO, the door was opened by the Court! The Court in addition to its regular fashion of terse announcements, DENIED or ACCEPTED, added an order under its powers to do so, AZ Supreme Court Rule 111(g), that the Gelb decision was not to be published. Not being published means that it is not binding authority, or precedent. It seems then that the door is open and res judicata – already decided – doesn’t apply.

Why allow another shot” at constitutionality? Maybe, as I have argued, the arguments in support of the law relied on the same two cases, Cactus Wren and Hancock, accepted as controlling in both Gelb and in Waugaman (in the only other case that involved a decision, the superior court decision Troon v. DFBLS, Waugaman, LC2007-000598, Maricopa County), left something to be desired. Like the entire body of constitutional law and on the administrative procedures act concerning the acceptance of quasi-judicial authority of executive agencies. Yes, sharing does occur, and none of the applicable rulings were based on the extent of the agency’s regulatory functions, as the DFBLS cases were, (Gelb essentially followed the arguments in Waugaman).

July 20th will be the next phase of the fight by homeowner rights advocates for due process and the equal protection of the laws. The AZ Supreme Court just “punted.”

See AZ Supreme Court to decide whether  or not to proceed on Gelb and HOA adjudication

Want more neighborly love? In an HOA??

 

I submitted the following comment to the shreveporttimes.com article, “A sign that we need more neighborly love.”

 

HOAs were never really about neighborly love.  They were promoted as such a fellowship of people with a common goal, “building better communities” and “fostering vibrant, harmonious communities” by the national lobbying organization.  But, in reality, they are highly divisive and adversarial because strict enforcement of often arbitrary and capricious rules abound, enforced by the “protection agency”, the HOA, whose directors are reminded that they can be sued for not enforcing the CC&RS or declaration.  Couple that with aggressive HOA lawyers whose income is not based on contentment and neighborly love, but on adversity that leads to the courtroom. It’s in their best interests to preserve the HOA in its current form.

This authoritarian form of government, backed by pro-HOA laws to inflict severe penalties on homeowner offenders but give a slap on the wrist to HOA offenders, make an excellent environment for the power seekers and misguided true believers who believe that they  are part of a grand and glorious new America. And for the profit-seeking developers, HOA vendors and lawyers.

IF YOU THINK ABOUT IT, HOW ELSE CAN IT BE?  No country, no community has ever obtained strict compliance to rules that are aimed to preserve the state, like Nazi Germany  Communist Russia, without imposing restrictions on the rights and freedoms of its inhabitants  “in the name of the state.” Its corporate form of government is no different from any other business where there are the managers who control and the people who are to obey.  HOA directors are in the “management” class and homeowners are in the “employee” class, even though the “employees” may also be owners of the corporation.  And we all know that management does not have the 100% whole–hearted agreement and support of its people. 

Yet, the courts and state legislatures truly believe that the board speaks for the members on all matters, great and small. That the HOA is imbued with public government attributes and, ignoring the reality of a contract, by merely living and remaining subject to the HOA the “employee” surrenders all his rights and freedoms contrary to constitutional law. But, as we all know, how many people, employees, work and remain at a business for valid reasons other then that they fully consent to be governed by the corporation? The public officials have adopted this “remaining within the HOA” argument not because it is valid, but because it offers a plausible defense for their actions.

Want more neighborly love?  Hold HOA boards accountable for their actions, and provide protections for the rights and freedoms on the owners.  Forget the “we don’t want government” and get to “we want the same government protections as all others.

Can CC&Rs be personalized for each homeowner? YES!

An interesting case was just decided by the Mississippi appellate court that addressed personalized, individual homeowner variations to the CC&Rs. In Long Meadow HOA v. Harlandthe court upheld individualized deeds that modified the subdivision’s CC&Rs that permitted a church to be built within the HOA. Unfortunately, it’s too late for all of us currently living in an HOA regime.

Leaving aside the questions of a contract by constructive notice that permits the surrender of your rights and freedoms as bona fide, and that covenants contrary to public policy are null and void, the adhesion contact nature of the CC&Rs can be pierced. It can be modified by a true exchange, a bargaining, a give and take as is required for a valid. legally binding contract.

From the court records, the persons who owned and sold the lots in the development wrote individualized CC&Rs for each buyer, which were apparently contained or referenced in the individual deed to the property. The court record shows that the owner/declarant “included a protective covenant in the deed that specified . . . .“ The record is silent on the existence or recording of a “all for one and one for all” subdivision CC&Rs as we know exist almost everywhere. Apparently such “one for all” is not necessary.

In fact, the Harlands wrote a contingency clause in their purchase contract to protect them in the event they were not permitted to build a church, with a return of their $5,000 escrow payment. (Understand that there are 3 legal documents as part of your purchase: the purchase contract itself, the deed with its standard wording, “subject to CC&Rs,” and the CC&Rs themselves).

Problem is, the lobbyist HOA attorneys tell the developer NO, don’t do it! And the real estate department, and the realtor associations, say nothing to inform the average home buyer, the consumer public, that he can negotiate the purchase contract.

I am sure that this decision will be challenged, especially in other states. It would turn HOA-Land upside down.

Arizona OAH restoration: SB 1148 signed; supreme court “paused”

 

SB 1148 was signed by the Governor today – will become law 90 days after end of session.
 
The AZ Supreme Court did not reach a decision and the case is listed as “Continued”, probably at the next conference scheduled for May 24 (not yet on the agenda).
 
Congratulations to Sen. Biggs on behalf of all homeowners living in HOAs seeking justice!