Tag: constitutional law

Do you stand behind the US Constitution or your HOA ‘constitution’?

Many courts have referred to the Declaration of Covenants, Conditions and Restrictions (CC&Rs) as the HOA constitution.

Arizona’s HB 2158 is a second try (Arizona HB 2052 restores homeowner constitutional speech protections ) to prohibit restrictions on HOA members’ freedom of political speech with respect to HOA governance issues and matters.  It has passed put of committee and Caucus.

This important bill has been sitting for an extended 2 week time awaiting the House leadership to schedule it for a full House vote of all the members. NOT A GOOD SIGN!  My years of experience lead me to believe it does not have the support of the leadershp that has the right, under House Rules,  to withhold bills from further votes.

HB 2158 (2022). You can read the bill at the legislature’s website. Read the important amendments below. This is your chance to stand up for constitutional protections against the CAI lobbyists, many whose members have been or are SCG directors – conflict of interest!

“L. Notwithstanding any provision in the community documents, an associociation [sic] may not prohibit or unreasonably restrict a member’s ability to peacefully assemble and use private or common areas of the planned community . . . . An individual member or group of members may organize to discuss or address planned community business, including board elections or recalls, potential or actual ballot issues or revisions to the community documents . . . . The association shall not restrict posting notices of these informal member meetings on physical or electronic bulletin boards used by the association for posting notices for the association’s or board of director’s official meetings.”

This bill has support from the Nevada Supreme Court opinion in Kosor (NV supreme court upholds HOAs as public forums (re: Kosor 2021)) that contained several California opinions serving as legal precedent.

 “[A] unit owner’s association or a planned community association (association) may not prohibit a unit owner or member (member) from peacefully assembling and using private or common elements of the community . . . legitimate and valid criticisms of your HOA and its president and board are protected from HOA lawsuits of defamation and libel.”

“Nextdoor.com post qualifies as a public forum for the purposes of anti-SLAPP protections. . . .these steps [Kosor’s statements] do not seem to differ significantly from that which might be required to view posts on Facebook; that is, a post on Nextdoor.com is as compatible with expressive activity as one on the other platform, which we have already held can support a public forum.”

“The HOA here is no less of ‘a quasi-government entity’

* * * *

The following is an excerpt from a lengthy email sent to me by a long time AZ homeowner rights advocate, Dennis Legere. It and his email are made public with Dennis’ permisssion.  It  reveals the obstacles an hostiity he faces trying the get HOA reform legislation to restore lost rights and freedoms. It contains his comments on the heavy opposition  from CAI and AACM (AZ managers association, CAI trained).

“The ridiculous nature and hidden motivation of the HOA trade groups [CAI and AACM] is what makes any HOA meaningful legislation so difficult to get introduced or protected from demands from the trade groups for provisions that benefit them only.”

Take back controll of your HOA!  Write your Representative in support of this bill. Also write the sponsor, Jack Kavanagh (jkavanagh@azleg.gov) and the House leaders in support of this bill urging that it be submitted for a hearing by all the House members. Do it today!

House leaders:

Rbowers@azleg.gov – Speaker (R)

tgrantham@azleg.gov – Speaker Pro Temp (R)

btoma@azleg.gov – Majority Leader (R)

lbiasiucci@azleg.gov – Majority Whip (R)

rbolding@azleg.gov – Minority Leader (D)

ddegrazia@azleg.gov – Minority Whip (D)

jlongdon@azleg.gov – Asst Minortiy Whip (D)

Support your legislative HOA champion with legal authorities

Deborah Goonan’s excellent  report on Louisiana House Bill 9, sponsored by Rep. Hollis, simply reads,

 “B. Any provision of a community document which restricts a constitutional 15 right of a lot owner or a person residing in a residential planned community shall be 16 null and void.” 

(“What if homeowners associations had to respect owners and residents constitutional rights?”, Jan. 20,2022).

Fantastic! It shows meaningful reform does not require  complicated mumbo-jumbo. It similar to my proposed 2011 “Truth in HOAs,”

“The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.”

However, the bill is only proposed!  Legislators need your active support as well as “ammunition” to support their bill with legal authorities – cases, court filings, correspondence, and posts on this blog and on American Independent communities. 

Send relevant posts to your legislators today!

Stare decisis – promoting bad HOA statutes

Stare decisis is the long-held doctrine underlying precedent or following and upholding existing laws.  And if the laws are bad, well then, so are any new laws based on the bad precedent. Those of us as homeowner rights advocates are well aware of the harmful impact of stare decisis on homeowners.  See Rejecting unjust HOA legal precedent (2010).

Stare decisis was a very big issue in today’s SCOTUS hearing on Roe v. Wade.   Should this long held precedent be supported or not followed for reasons of “bad law” as argued by some.  The principles governing  stare decisis are, as should be expected, very complicated, so here’s the short of it as best I can determine.

Alexander Hamilton explained that “[t]o avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.”   But it is not a “mechanical formula” or “not set in stone.” The issues dealt with “strong grounds” because “the Court’s willingness to overrule its past decisions is the only way to correct an erroneous constitutional interpretation.”  Was the precedent wrong in the first place (as now being argued with Roe)?  Whether “less harm will result from overruling the decision than from allowing it to stand?

Advocates must make the courts realize that most of the HOA statutes in every state must be overruled on constitutional grounds.  Otherwise, homeowners will never be able to rise out of the muck and recapture true US citizenship.

proposed HOA constitutionality bill

“Now is the time for all good homeowner advocate leaders to come to the aid of member-owners”

 living in HOAs and suffering abuse, financial and emotional distress as a result of BODs being  protected by Arizona laws. These abuses are easy to understand and support! (See HOA Common Sense: rejecting private government and The HOA-Land Nation Within America).

A quick and simple — but highly effective — bill that was proposed in March 2011 and will bring relief to homeowners being treated a second-class citizens by state laws in support of the HOA legal scheme. It was ignored by Arizona advocates and dismissed by the Legislature.

“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.”

The “The Truth in HOAs Act,” as I called  it,  allows each state to modify the proposal in accordance with its state HOA/condo acts — shown in square brackets [].  Also, subsection (3) contains a list of acknowledgements  that can be tailored to each state’s advocate lobbying efforts.  See Arizona Truth in HOAs statute (pvtgov.org).  The essential bill section is contained in subparagraph (4).

“Therefore, in reference to subsection 3(d) above, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, “The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.”

 The real estate subdivision or condominium will not be affected by requiring HOAs to join with other forms of local government and be subject to the Constitution as a home rule entity.  See HOAs violate local home rule doctrine and are outlaw governments.

This 2022 legislative session offers a unique, one-time opportunity to get the message across and to educate the legislators. Remaining silent on the issues only plays into the pro-HOA hands of CAI and offers excuses by the media not to cover HOA abuse.  Not only will you find “ammunition” in support of your arguments as contained in the 2 above publications, but also in my Arizona Supreme Court  amicus brief filed and accepted in Tarter v. Bendt (see note (vi) in Can HOA members expect justice in Arizona courts?).

My arguments are summarized in the Commentary.  As is my approach, my arguments are supported by legal authority and hard evidence documents, which CAI ignores and YOU lose!  They must be exposed if the legislators are to be fully informed on the reality of HOA-Land.  As leaders who are internet publishers,  actions speak louder than words!

 

Desert Mountain opinion (AZ) constitutionality – part 2

Introduction

This 2-part Commentary on the H-O-A amendment boilerplate process entails a number of complex constitutional issues that are interlinked.  Discussing one results in discussing another, etc. in order to fully understand the validity of the H-O-A legal scheme.  [quote — ]You can’t see the forest for the trees[  –unquote  ] is the result of this complexity obfuscated by the Restatement and by the national pro-H-O-A special interest lobbyists.

In Part 1 I discussed 5 selected views by the appellate court that I see as constitutional challenges.   Herein Part 2 I present constitutionality challenges in regard to 1)  the bias found in the  Restatement of Servitudes,[1] a legal authority on court decisions and common law in favor of the H-O-A legal scheme, and 2) the freedom to contract doctrine[2] and its bearing on whether people are truly free to enter an H-O-A private government contract.

The Arizona appellate court ruling in Nicdon v. Desert Mountain[3] with respect to a CC&Rs amendment needs to be appealed to the AZ supreme court. In Part 1,  I raised the question of an on color of law denial of fundamental rights to property; on violations of the equal protection of the laws.   

Disclaimer: Understanding that in spite of my 20+ years reading hundreds of federal and state supreme court and appellate court opinions, I am not a lawyer nor am I employed by a lawyer; I only offer my views.

. . . .

Restatement of Property: Servitudes

In Item 5 of Part 1, I raised my concern that the Court relied on the Restatement of Servitudes quoting, [quote — ]A restrictive covenant is generally valid unless it is illegal or unconstitutional or violates public policy[  –unquote  ].[4]  The Restatement (American Law Institute) is accepted as legal authority even though it seems to be advancing ought to be or societal goals rather than reporting the law and factual court decisions.  

[quote — ]The Institute’s mission is [quote — ]to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work.[  –unquote  ] It achieves this goal through the development of Institute projects, which are categorized as Restatements, Codes, or Principles. . . . Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court.[  –unquote  ][5]

The opening sentence above is the heart of the problem.  It presumes that justice is accomplished through ALI’s promotion of current court decisions, which in turn, are the reflection of a bias as  to what constitutes [quote — ]a better adaption to social needs.[  –unquote  ]  It flies in the face of  long standing constitutional doctrine on the legitimacy of the law and the consent of the governed.   It opens up to the controversy regarding the extent to which people may associate and establish contracts under freedom to and freedom of contract.

This 2000 update and marked rewrite began in 1987, 13 years ago. It is now another 21 years of substantive changes in the laws and public policy; H-O-As have now been institutionalized and accepted as [quote — ]this is he way it is.[  –unquote  ]  This is quite clear from the Forward (emphasis added):

 [quote — ]Professor Susan French [Reporter (chief editor/contributor) for this Restatement] begins with the assumption . . . that we are willing to pay for private government because we believe it is more efficient than [public] government  . . . . Therefore this Restatement is enabling toward private government, so long as there is full disclosure . . . .[  –unquote  ]

And we know there is an absence of full disclosure that amounts to misrepresentation.  Sadly, there is evidence of contradictory statements aiding and abetting this misrepresentation even in the Restatement that is used as legal authority by the courts. While the Court quoted comment a of §3.1[6] (see [quote — ]Contractual freedoms[  –unquote  ] below), it omitted comment h, which reads, [quote — ]in the event of a conflict between servitudes law and the law applicable to the association form [its private contractual nature], servitudes law should control.[  –unquote  ]

In addition, while the court referenced §6.10 it unbelievably failed to reject §6.13, comment a, which states: [quote — ]The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law.[  –unquote  ]

Need I say more about securing the [quote — ]better administration of justice[  –unquote  ]?  Certainly not for the affected people — the H-O-A homeowners.  ALI is guilty of bias against the homeowners, the [quote — ]patients,[  –unquote  ] as analogous to the medical profession with its high degree of specialization where, working on the same body, the left hand doesn’t know about, or doesn’t care about, what the right hand is doing at the same time. 

If it is true and believable that laws are to provide justice, as widely proclaimed, the courts and the lawmakers must consider the effects of both hands on the patient. ALI must adjust its approach and remove these pro-H-O-A views and make references to applicable constitutional law.  ALI must also recognize that H-O-As are another form of local government that is not subject to the Constitution, and remove §6.13, comment a. 

The policy makers have failed to understand that the H-O-A CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.

Section 6 of the Restatement, Part D, Governance of Common – Interest Communities, attempts to deal with the governance of H-O-As in general. Section 6.16 addresses representative government.  It does not read at all like the Declaration of Independence, the Constitution, or the Bill of Rights.

Contractual freedoms and consent to be bound

Let’s begin with the excerpt from Desert Mountain opinion  in Part 1(1) linking the binding of the CC&Rs [quote — ]contract[  –unquote  ] by deed acceptance to the implicit consent to be bound in a single quote (emphasis added),

[quote — ]By accepting a deed in the Desert Mountain planned community, the [homeowner]  became bound by the Declaration, including properly adopted amendments. . . . when [a] homeowner takes [a] deed containing restriction allowing amendment by majority vote, homeowner implicitly consents to any subsequent majority vote to modify or extinguish deed restrictions[  –unquote  ].

By this doctrine, contract law 101 is ignored in favor of servitude law, as the Restatement advises  and an implicit waiver and surrender of a fundamental property right is accepted as valid, thereby treating the homeowner as a second-class citizen.  It does not do justice for the homeowner and should be held as an illegitimate exercise of police power by the legislature.

 In Item 5 of Part 1, I also raised the matter of the freedom to contract doctrine as contained in comment (a) of  the Restatement’s §3.1  that I now discuss in some detail here due to its constitutional complexity.

‘‘In general, parties may contract as they wish [freedom to contract] , and the courts will enforce their agreements without passing on the substance . . . The principle of freedom of contract is rooted in the notion that it is in the public interest to recognize that individuals have broad powers to order their own lives.’[  –unquote  ]   

In opposition to the above, I raised the following questions  years ago in 2005,

[quote — ]When did ‘whatever the people privately contract’ dominate the protections of the U.S. Constitution?  Please state what, if any, are the government’s interests in supporting H-O-As that deny the people their constitutional rights?[  –unquote  ]

I have not received an answer from any party including constitutional think tanks, state legislators, attorney generals, or the media.  It’s obvious that in any reply they [quote — ]would be defending the indefensible![  –unquote  ]

Freedom to contract; implied consent to be bound

The simplistic argument that remaining in the H-O-A implies consent is answered, in general,  by political scientist, professor of constitutional law, and author Randy Barnett,

Simply remaining in this country, however, is highly ambiguous. It might mean that you consent to be bound by the laws . . . or it might mean that you have a good job and could not find a better one [elsewhere] . . . or that you do not want to leave your loved ones behind. It is simply unwarranted that to conclude from the mere act of remaining . . . that one has consented to all and any of the laws thereof.[  –unquote  ][7]

I broadly address the consent issue in H-O-A Common Sense, No. 4: Consent to be governed[8]  (2008).  A deeper discussion can be found in H-O-A consent to agree vs. [quote — ]the will of the majority[  –unquote  ] (2019) wherein I quote constitutional scholars Randy Barnett, Keith E. Whittingham, and Edwin Meese.[9]

The important, selected, noteworthy quotes shown below bear directly on the defects in the top-down, take it-or leave it CC&Rs:

[quote — ]Tacit consent purports to provide a rationale for obligating those of us, by chance or choice, have not made their approval of the government explicit [Whittingham].[  –unquote  ]

[quote — ]The [quote — ]consent of the governed[  –unquote  ] stands in contrast to [quote — ]the will of the majority[  –unquote  ] . . . consent is the means whereby arbitrary power is thwarted [Meese].[  –unquote  ]

[quote — ]A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the H-O-A amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just’ [Barnett].[  –unquote  ]

US Supreme Court must decide

I have informed readers about the  sticky-wicket that ties all these constitutional questions together as applied to the H-O-A legal structure and scheme; a sticky-wicket that must be resolved once and for all by the US Supreme Court.

References

[1] Restatement (3rd), Property: Servitudes, Susan F. French, Reporter, American Law Institute (2000).

[2] The question of  [quote — ]legitimacy of consent[  –unquote  ] is explored by Randy Barnett in his publications where he argues that there are limitations.  Restoring the Lost Constitution: The Presumption of Liberty, Randy E. Barnett, Part 1, Princeton University Press, 2004). 

[3] Nicdon v. Desert Mountain, No. 1 CA-CV 20-0129 (April 29, 2021).  

[4] Supra n.1, §3.3(1).

[5] [quote — ]How the Institute Works,[  –unquote  ] American Law Institute (ALI),website (May 3, 2011).

[6] This section of the Restatement, Validity of Servitude Arrangements, speaks to unconstitutional servitudes (§3.1(d)) and servitudes violating public policy (3.1(e)).  Worth reading.

[7] Supra n.3, p.19.

[8] See H-O-A Common Sense: rejecting private government (2008) pamphlet on Amazon.

[9] Barnett, supra n. 3; Whittingham, [quote — ]Chapter 5, Popular Sovereignty and Originalism,[  –unquote  ] Constitutional Interpretation, Univ. Press of Kansas (1999); Meese, [quote — ]What the Constitution Means,[  –unquote  ] The Heritage Guide to the Constitution (2005). Meese was the US Attorney General under Ronald Reagan.