Tag: constitution

The Unspoken Alliance: “No negatives about HOAs”

The Arizona Republic ran the article, HOA, Laveen man fight over historic flag. 

The HOA called the flag debris and said it broke neighborhood rules.. . . The flag’s a favorite emblem for the ‘tea party”‘movement.

 Reply Comment:

This is a solid First Amendment violation of the right to speak freely on politcal matters.  Supreme Court has upheld such rights. Any deed restriction or covenant that is against public policy or is unconstitutional is invalid and unenforceable. Long held law, thank goodness!

Now, you would think that the HOA attorney, Delgado. another member of the CAI law firm of Carpenter Hazlewood, would know that.  Wouldn’t you think so?   It is interesting that the media always fails to mention this affiliation with CAI, as many of these attorneys lecture on how to live happily in an HOA.  And they are supported by your local town government through the HOA Academy and Leadership Centre programs. 

Are the media and local supporting governments part of the unspoken alliance of, “No negatives about HOAs”?  

How about your Attorney General?  Your consumer protection agencies?  Your real estate department?  The Realtors?  Heard or read anything of substance against HOAs?  Gee, maybe I’m delusional and there are no serious issues of substance after all.

Texas & Arizona: the different meanings of ‘standing to sue’ an HOA

The question on appeal was a question of a legal standing to bring this suit against the defendants.  In general, the Texas appellate court in Webb clarified the legal status of “standing” (emphasis added),

 Standing deals with whether a litigant is the proper person to bring a lawsuit. . . . To establish standing, one must show a justiciable interest by alleging an actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally. . . . As stated by the United States Supreme Court, the question of standing is whether the party invoking jurisdiction has “a personal stake” in the outcome of the controversy.

 

Traditionally, courts have held that this “personal stake” must exist at the commencement of the litigation and continue throughout the lawsuit’s existence.

 

With respect to the Webb decision, the Court noted (emphasis added),  “Accordingly, unless Webb is an owner of a lot within Glenbrook Estates, she does not have standing to seek a declaration whether the Association waived enforcement of certain Covenants.”  Webb was not the recorded owner of the lot, only her husband’s name appeared on the deed, and Webb could not establish any fiduciary relationship or other representation for her husband.  Webb’s  case was dismissed due to a lack of standing to sue.

 See  Webb v. Voga, No. 05-09-00074-CV, Tex. App. Dist. 5, July 15, 2010.  (Glenbrook Owners Assn was a defendant).

NOW, TURNING OUR ATTENTION TO ARIZONA’S MOCKERY OF JUSTICE,  where the Office of Administrative Hearings adjudication of HOA disputes was declared unconstitutional  by the Maricopa County Superior Court (Meritt v. Phoenix Townhouse HOA, LC2008-000740, January 29, 2009), we find an unaddressed issue of standing to sue.  In short, after the decision and after a denial of this writer’s right to file a Motion to Intervene by Judge Murdock, an attempt was  made to bring the issue of a lack of standing to the attention of the court. The fact that the homeowner, who initiated the case, was no longer a member of the Phoenix Townhosue Assn.  On Feburary 23, 2009 I wrote Judge McMurdie, providing the evidence and saying,

 

Petitioner and real party in interest, Ron Merrit (sic), had quitclaimed his deed to his co-owned property in the Phoenix Townhouse subdivision on October 10, 2008, prior to the superior court special appeal of October 23. (Exhibit 1).  I believe this issue became moot at that point.

 I reminded the judge,

 If I had been permitted to intervene, these facts, discovered subsequent to filing the Motion to Intervene, would have been presented appropriately. Rule 60(c)(6) “does not limit the power of a court to entertain an independent action to relieve a party from judgment, order . . . or to set aside a judgment for fraud upon the court.” 

 On March 2, 2009 Judge McMurdie responded with the following Minute Entry (emphasis added),

 The Court has received Intervener’s, George Staropoli, miscellaneous filings.

IT IS ORDERED striking these filings.

IT IS FURTHER ORDERED that the Clerk of Court shall not accept any filings from George Staropoli in this case.

  Apparently, the Arizona courts have a different take on this doctrine of standing to sue when it comes to HOAs.  The decision and harsh attitude of the Judge, and the absence of any government agency or official to defend the statute, allows a paraphrasing of Carl von Clausewitz’s, “War is the continuation of policy by other means” (On War):

  “The judicial system is the continuation of policy by another means!”

  Read the complete story of OAH constitutionality at

The State of Arizona will not protect buyers of HOA homes!

De facto NJ private HOA governments granted liability immunity

While reading the NJ Superior Court case, Fernicola v. Pheasant Run HOA[i],  I was surprised to find that New Jersey statutes grant an HOA greater immunity than granted to public entities.  In this case, a homeowner was injured as a result of tripping on an uneven section of common ground sidewalk.  One adjacent slab was 2 inches  above the other, of which the HOA was well aware.  But, this was just one such incidence of an  uneven sidewalk.    The HOA was not found guilty of gross negligence.

Negligence is a wrong under a duty of care doctrine, to which  HOAs and public governments are held accountable.  In short, from my lay knowledge of the law, a complaint must show that a duty of care existed, and that the accused violated that duty resulting in damage to another caused by this failure of care.   In general, public entities are granted either absolute or partial immunity from such liability[ii], under the logic that who would work for the government if all employees were made liable for their actions.   Apparently, to even a higher degree of protection,  this logic was applied to  de facto, private, contractual government HOAs.

Following is the appropriate section of the N.J. statutes.  Note that, once again, the law defers to, and makes legal, privately drafted contractual provisions. The presumption is that all members to these CC&R servitude contracts agreed to each and every surrender of rights and protections.  Note, too, the deliberately awkward wording of subsection (b), which obscures the fact that the HOA has immunity except from any of the enumerated factors.  N.J.S.A. 2A:62A-13 provides as follows:

a. Where the bylaws of a qualified common interest community specifically so provide, the association shall not be liable in any civil action brought by or on behalf of a unit owner to respond in damages as a result of bodily injury to the unit owner occurring on the premises of the qualified interest community.

b. Nothing in this act shall be deemed to grant immunity to any association causing bodily injury to the unit owner on the premises of the qualified common interest community by its willful, wanton or grossly negligent act of commission of omission.

Under real property tort law liability[iii], there are three categories of a duty of care toward others by property owners.  We would expect this common law doctrine to apply to HOAs were it not for special laws for private organizations.  Under tort law, there is not duty of care for trespassers — they enter at their own risk.  Licensees are people you invite on to your property, such as social guests.  With this class, the owner must only inform of conditions that he is aware of. The last class, Invitees are those whom the owner invites on to the property to conduct business, or that has public services, such as a public phone, etc.  The owner has a duty to inspect and to  inform this class of people of any situations that might prove harmful, such as faulty construction, etc.  However, given the above special statute, the HOA has almost no accountability to its member-owners; they would get a better deal from belonging to de jure public government.

IT SHOULD BE CLEARLY UNDERSTOOD that these grants of special privileges to private organizations, as the various state HOA and condo laws can be described, occur without any justifications or consideration being offered to the homeowners as to enhanced rights to deal with any abuse of these special grants.

AND LET US NOT FORGET the wisdom of the NJ Supreme Court in Twin Rivers[iv] that homeowners are protected by the business judgment rule, and not to worry about constitutional protections.  The Court failed to note the this rule was also designed to protect the HOA entity and not the people from abuse, in contradiction to the principles found in the Constitution and Bill of Rights.

 

Notes

[i] Fernicola v. Pheasant Run HOA, No. A-2027-08T1, N.J. Super. App. Div., July 2, 2010.

[ii] Under the Federal Tort Claims Act, the government can be sued for negligent acts or omissions that need not rise to the level of willful or gross negligence. See Tort Law for Legal Assistants, Linda L. & J. Stanley Edwards, eds. p. 218 0 219(Thomsom-Delmar Learning, 3rd ed. 2004).

[iii] Id, p. 86-88.

[iv] See generally A choice for Americans: the US Constitution or authoritarian, private HOA government.

Undemocratic HOA governments: Politburo federalization

I am not surprised by the silence to my Blogcritic article, ” HOAs: Unrecognized De Facto Local Political Governments ”   It takes time to absorb, since there is the shock that this is happening not in a European or third world country, but here in the US of A. 

In an email back in the summer of 2006, when first writing about the broader impact on constitutional principles by these private governments,  I had the analogy of the Communist Politburo in my mind.  I wrote, in regard to writing another article,

 I will allude to CAI as the modern equivalent of Communist Russia’s Politburo that, from its HQ in Alexandria, VA, has sent its faithful and loyal followers to every state legislature to undermine the American system of government. With less that 17,000 members, smaller than the members of the Arizona Assn. of Realtors alone, CAI controls public policy with respect to the homeowner association governance of condominiums and planned communities.  While its membership represents less than 6% of the homeowners associations in the US as estimated by CAI, its lobbyists control legislation with respect to HOAs in almost every state of the union.

 As added documentation as to where the promoters and supporters of the HOA legal scheme,  are taking us — those legal-academic aristocrats as I refer to them —   here is a real example of a “federal,” Politburo government in Arizona.  The governing structure of Anthem in Maricopa County, AZ, a master community contractual government, binding homeowners under the servitude law of constructive notice, is such a Politburo.  It has a federalized form of government, drafted in 1999 by longtime legal-academic aristocrat Wayne Hyatt, setting out a central government, the Anthem Community Council, ACC, (those socialistic terms) that has no members and is governed by a board of directors.  As the owner/declarant of all the properties to be known as Anthem, it unilaterally declared that,

 To pay for the Council Expenses, all Owners, through an Association or directly, shall be obligated to pay assessments, fees, and other charges as set forth in this Community Covenant . . . This Community Covenant shall be binding upon all Persons having any right, title, or interest in any portion of the subjected real property, their heirs, successors, successors-in-title, and assigns.

 The ACC further binds all property owners who are subject to an association governing a phased subdivision, as hereby subject to this ACC.  In other words, ACC is the federal arm, or more accurately, the Politburo, overseeing the resident-citizens of the Anthem territory and all Anthem subdivision “state” governments.

 BTW, have you noticed the socialist terminology?  In the various state laws, HOAs are called “planned communities”, and Anthem has a “community council,” and there’s the “communal living” aspect of HOAs (described as such by NJ Justice in the Twin Rivers case).  Yes, folks, right here in the good ol’ US of A, and nobody cares.  Not even any of the political parties, or public interest organizations, or the media.

HOAs: Unrecognized, De Facto Private Governments

In the beginning, that’s 1964, the FHA went along with real estate interests and funded The Homes Association Handbook, which, as I have written in Part I of The Foundations of Homeowners Associations and the New America, was the bible for the mass merchandising for “the emergence and acceptance of a quiet innovation in housing” (taken from a historical recounting, Community Associations, the printing of which was funded by both CAI and ULI).

The Handbook had something for everyone who would be involved in making this incarnation work as a widely accepted mode of housing: the builder, the local municipality, the mortgage companies, and even the consumer/homebuyer, to whom it promoted “carefree living,” “affordable housing,” and “maintaining property values,” among other benefits. No negatives were given.and no mention, in this 433-page Handbook, of creating a governing body in accordance with public government statutes (see your state’s municipality laws on incorporated towns or even on home rule). No mention either, of the requirement to be a public entity and therefore to be subject to the Constitution, nor that the Fourteenth Amendment applied to the HOA. The only hint at providing for a democratic form of government came from the promoter’s concern for the legal justification for the HOA to have authority over the private property interests of the homeowners and to impose compulsory assessments: allowing the owners to vote.

Read more on BlogCritics:  HOAs: Unrecognized De Facto Local Political Governments