contract – Page 12 – HOA Constitutional Government

Public policy protects HOA principalities

How many readers own a timeshare? I do. Do you know, for a one-week ownership and for a comparatively inexpensive purchase, the buyer gets tons of protections under the law. Why? Because of the abuse in the past. But, not so with respect to all the HOA abuse and questionable validity of CC&Rs and the consent to agree issues over so many years. There are no “Truth in HOA” laws in any state!

When buying a timeshare (“vacation ownership” nowadays), and I bought a few, we actually had a sit-down with the sales manager who, like in a closing, went over all the many documents, took time to answer questions, and had us initial a double-spaced, large type, two-page itemized list of important legal matters, indicating that we had full knowledge and consent of the legal issues. Thats’s in addition to all the other papers that we had to actually sign.

What’s the problem with buying an HOA propertty, if everything is on the “up and up?” Maybe because there would indeed be a “Truth in HOAs” document to be given and signed off by the prospective buyer prior to closing, and only if signed off can the sale be completed. And that’s in addition to the current sales document, the inadequate HOA disclosure document, now required by almost all states.

What seems to be the problem that these HOA buyer protections have been missing all these years?

AZ legislature falls for CAI lobbyist ramblings – HB 2441

I just watched the Arizona CAI lobbyist, Kevin DeMenna, spew forth misleading statements and irrelevant ramblings in support of HB 2441, before the AZ House Government Committee on Feb. 8, 2011, in an excellent example of professional spin. And the committee members bought it, lock, stock and barrel with its 8 – 0 vote. Based on the few questions asked by the committee members, apparently all that counts is the information provided by paid special interest lobbyists, and the statements by informed and knowledgeable citizens are given scant attention.

Were the members sleeping when DeMenna stated at the very start that, “We are are the managers and association boards’ duly elected . . . and what have you.” (That’s a technique in advertising to avoid fraudulent advertising). Obviously, no committee member read or understood my plain language that CAI is a business trade organization not permitted to have HOA members, and that all those “volunteers” do not speak for their HOAs.

I had emailed the committee my detailed analysis of the bill (Analysis of AZ HB 2441, the HOA minority control bill), and wrote again in my 2/6/11 email saying,

However, for years CAI attorney lobbyists have been misrepresenting that they speak for HOAs and is homeowner members. HB 2441 continues this misrepresentation and interference into the HOA CC&Rs contract for the interests of attorneys, and not the HOA or its members. CAI AZ spends more money on lobbyists activities than on its educational programs, which is the stated basis for its tax exemption. (See its 990 EZ).

Apparently, the democratic process previously extolled by CAI means little to them in regard to HB 2441 where CAI supports the position that a minority can take away the private property rights of the homeowners without their consent. DeMenna gave false and evasive replies that the courts will uphold a validly enacted amendment. Section 3.1, Validity of Servitudes, of the Restatement (third) of Servitudes clearly states that covenants are not valid if they are unconstitutional, contrary to public policy or are unreasonable. DeMenna easily misleads the committee with his false analogy of legislature’s frequent interference with contracts across the state in Santa Cruz and Cochise counties, which are not private contractual governments! (More slight of hand). Of course, the CAI lobbyist first slicked them with an admission that HOAs are “in effect, little tiny, mini-governments.”

The DeMenna & Associates Ethics web page proudly states that, “we will consistently uphold the highest standards of personal integrity” and “will always do our best to win.” DeMenna’s conduct before the committee reflects the extent to which he will go to win, and his ethical standards.

In my amicus curiae brief in the OAH constitutionality challenge before the AZ Supreme Court (Gelb v. DFBLS, CV 10-0371-PR) I wrote, justifiably with respect to this astonishing vote,

“It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE for due process protections and the equal application of the laws.”

Source: House Archives. Click on “video” for House GOV, 2/8.

Suppose I park on an HOA public street. Then what?

Dear Arizona Legislators,

I cannot fathom the continued refusal of the Legislature to put this bill into law, having failed to do so for the past four years — SB 1360 (2007), HB2724 (2008), HB 2034 (2009), HB 2153 (2010).

This refusal to pass this bill invites more and more senseless litigation that only benefits the HOA lawyers, who should be advising their HOA of its violation of the law rather than willing go off to court against the member. Suppose I park my car on a public street in Sun City, or Sun City West, or Anthem, perhaps in front of a board member’s home. How will the scenario unfold?

Nothing happens, and everybody lives happily ever after Not likely, since these HOA members have argued over the years before legislative committees for their right to stop this parking.
Some HOA member, presumably a board member, or his “hired gun”, the management firm, call the local/county police to evict me. I ask the officer his name, rank and serial number, and just what law I am breaking parking on an unrestricted public street. If he persists on getting me to move, I say to him this is harassment and you are violating the law, and wrongfully acting to evict me. If he says that I am creating am nuisance, I reply that he is the person violating his authority and acting on behalf of a private person/organization who is filing a false complaint. I ask him to arrest the HOA member for filing a false complaint.
Does the HOA fine the member for not “policing” his street segment, under which he has no legal authority to do anything but plead and beg me to move? If so fined, then I have no sympathy for any homeowner who allows his board to engage in establishing such “laws”, presumably under the advice of the HOA attorney.
In effect, all this posturing is an illegal extortion of the HOA member to violate the law under the threat of a fine, as the HOA and its attorney know better than to undertake such an illegal enforcement action themselves.
The HOA member has the right to file suit against the HOA, if he believes that the HOA “law” is illegal, contrary to public policy or unconstitutional, and he may do so. The Legislature will honor his beloved CC&Rs contract, between the member and the HOA, and not third-parties, and do nothing, leaving him to happily pay his fine as a good, loyal HOA member.
If the HOA does not fine the member, what is their real issue, except the power struggle of who controls and regulates the people within the HOA territorial subdivision. All these HOAs have to do is to go to their zoning board and get a variance. Why aren’t they doing it? Why?
Suppose 10 other cars are so parked throughout these HOAs. Then what?

You may ask why hasn’t this happened? Perhaps because:

homeowners are law abiding,
they do not understand or know their rights under the law since there is a broad “no negatives about HOAs” policy pervading the state,
there is no “Truth in HOAs” law like truth in lending or truth in advertising,
and they are intimidated by their HOA with its coercive fines and liens authority, without effective legal recourse to stand up to the HOA with its money and attorneys.

This sad and preventable state of affairs, creating divisiveness, hostility, anger and resentment only benefits the HOA attorneys who are all too eager to go to court — their reason for being. All because the Legislature has failed to uphold the Arizona Constitution and to pass this bill.

AZ CAI attorney maintains that “the law cannot fix” abusive board problems

CAI lobbyist and LAC co-chair in Arizona, Scott Carpenter, made it quite clear in his 2011 Legislative Preview blog post, Jan. 11, 2011, that: “Community associations function worst when the elected directors act out of self-interest, play favorites, and work for their own political purposes” (see, there are indeed serious problems in HOA-Lands). And then declares, “The law cannot fix this problem directly any better than the law is capable of fixing conflict in families or marriages.” Let me repeat that: “The law cannot fix this problem directly any better than the law is capable of fixing conflict in families or marriages.” Has he ever read the Constitution, the Bill of Rights or the Declaration of Independence?

Sarah Palin, in her video on the Arizona shooting this past Saturday, made reference to the Founding Fathers understanding of man’s imperfect nature. She quoted James Madison (Federalist Papers #10), “If men were angels there would be no need for government.” (See Constitutional Local Government website, http://pvtgov.org). It was that awareness by the Founding Fathers that led to the adoption of checks and balances and of a separation of powers. But when there is no accountability, no check on private HOA governments by state government, one can only assume that those who become directors are blessed with perfection in all that they do. And that the wise and learned legislators have the exceptional ability to see these angelic persons, and find it only fair and just to leave HOA matters to the HOA board. Perhaps this is the real reason for the hands-off policy of the legislature.

It should be noted, however, that Carpenter, in an about face, fails to mention his Dec. 17, 2010 letter to the CAI lobbyist, DeMenna, that it’s a good idea for a law that gives a minority of members the power to alter your CC&R contract at the time of purchase – 2/3 of 50% quorum = 33.5% of all the members. HOAs are contractual and are not public governments. If Carpenter wants the HOA to function like a public government with its election laws, his justification for this proposed change in law, then he should argue for the modification the CC&Rs contract by member vote and not by legislative fiat. Apparently legislative interference is a swinging door, depending on which side of the fence Carpenter is on. He now seeks legislative interference that he otherwise rejects. (While Carpenter takes pains to inform the reader that he speaks for himself, not CAI and not for the firm, the letter is signed by Carpenter “for Carpenter, Hazlewood, Delgado & Wood, PLC.” Nor does he mention the fact that he remains co-chair for Arizona Central CAI chapter as he writes.)

Carpenter closes with a strong statement that control of the HOA belongs with the members and directors, in contradiction of his above proposed changes by legislative fiat. What is quite clear is: Carpenter is opposed to the democratic functioning by the people, the members alone, within the HOA subdivision, with no recourse to state oversight of its operations to protect you, the homeowner. He is strongly opposed to accountability to the civil government by private governments functioning under an authoritarian form of government. In fact, his law firm, Jason E. Smith the attorney of record, has trice opposed the delegation of authority by the legislature to a state agency (DFBLS/HOA) to hear HOA disputes. (See, in general, https://pvtgov.wordpress.com). He appears to want HOAs to be treated as independent principalities.

Carpenter has made his position quite clear. He is opposed, like CAI Central, to constitutional protections for homeowners. He seems to be arguing that HOAs are a special class of utopian government that require no oversight by the state. And sadly, like many other political statements on the national level, there are those true believers who see no wrong because it would not sit well with their own personal agendas. Or, they are declaring their preference for dogmatic principles, like a misguided support for “individual rights,” which they interpret to mean, “we can do anything the majority wants with no constitutional constraints.”

This secession from constitutional government must stop!

States Rights: the transfer of power from Washington to private government HOAs

I am pleased to hear the whispers of substantive issues regarding the institution of HOAs that undermine our democratic principles of government as found in this Washington Post article. Among the Christmas cards to one homeowner, a warning, “Several state courts have ruled that by agreeing to abide by homeowners association rules, home buyers relinquish some constitutional rights,” and who points out there are some limits on HOAs. But, I would like to clarify that these few rights had to be fought for in each state legislature on a piecemeal basis – restoring those rights taken away by the HOA declaration “agreement.”

The media must follow in this reporter’s footsteps and stop being an active participant in the Unspoken Alliance of “No Negatives About HOAs!” The media must understand that “States Rights” is nothing more than the transfer of political power from Washington to the state legislatures. State legislatures who, in turn, openly and eagerly support the transfer of political power to local private governments — homeowners associations — unanswerable to the US Constitution as required of all public forms of civil government.

These unrecognized, de facto governments hold power by the mere filing of a subdivision declaration of covenants, conditions and restrictions (CC&Rs), which is necessary and sufficient to bind unsuspecting home buyers. Declarations that bind without the need for the buyer to have read or to have explicitly signed-off on these relinquishments of constitutional rights, privileges and immunities, absent of any equal protection of the laws, and absent of any due process protections loss of life, liberty and property.

Perhaps we shall see a second effort by a number of states to amend and rewrite the Fourteenth Amendment to the Constitution, one that attempts to justify and defend this disgraceful state of affairs by a country once held in high esteem as the ideal democracy. This second amendment would sanction “chartered” private governments with their imposed, unconscionable adhesion agreements that provide for the carte blanche surrender of constitutional rights, and with their powers that include the loss of private property rights by the votes of others without the need for the consent of the affected homeowners. This amendment would legitimize these declarations of CC&Rs that do not recognize any “inalienable rights” at the time of purchase, and that permit ex post facto amendments to render the so-called sacrosanct declaration a meaningless pieces of paper. A travesty of our American democracy.

Who will stand up and fight for Lady Justice? Qui Pro Domina Justitia Sequitur (“who prosecutes on behalf of Lady Justice?“, DOJ seal). Who will defend and preserve our principles of democratic government?