Tag: democracy

Proposed “consent to be governed” statute, the “Truth in HOAs” bill

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. We know that CAI is opposed to such constitutional protections for members in HOAs, as the record shows in their NJ Twin Rivers appellate amicus brief. But, it is time for the legislators to “man up” and protect the people from harm inflicted by special interest groups. There is no necessary and compelling need for legislatures to deny the homeowner his rights, freedoms, privileges and immunities as a citizen of his state and of this country.

Read the complete proposed Truth in HOAs statute.

See also Public policy protects HOA principalities,

Calif. opinion: CC&Rs and surrender of constitutional rights

CAI asks why the government won’t let HOAs do as they please

 Under the slow awakening of state legislators across the country, Community Associations Institute (CAI) finds it necessary to remind the faithful followers and public policy makers of the grand and immense contributions that HOAs make toward our society and system of government[1]. So it claims in its “Why HOAs?” article.

 

In article’s second paragraph the writer recites the history of the “master” land owner who sets forth the use and control over the land forever in what we know as covenants running with the land, or CC&Rs.  He then speaks of the value of such CC&Rs, in his next paragraph, bypassing any mention of duly elected government of the homeowners and democratic functions of the HOA. No, you get the HOA constitution from the profit-seeking developer and his attorney written, almost boiler-plate, CC&Rs. So much for a democratic government.

 

Holmgren, the writer, continues to properly inform the reader that local governments like this – a privatization of government services onto you, the homeowner. But, there is one major problem not mentioned. He does not mention that  the protections of your rights and freedoms under the Constitution does not apply to these private contractual HOAs. No, it’s definitely not mentioned, not even hinted.

 

In an abrupt about face, Holmgren then speaks of “why government is so rarely a friend to homeowners associations,” and “they [government] believe homeowners associations are an untoward restriction on individual freedom.”   The issue is one of power – the writer, following CAI policy, firmly believes that HOAs are indeed independent principalities not to be regulated as any other entity, especially as a private government.  He plays to the simplistic dogma that the people can do anything they like, and regulation to protect one faction against the evils of another doesn’t apply to these principalities.

 

The writer then directly attacks the legislatures across the country that have over the years enacted pro-HOA laws. Holmgren blames the government as being opposed to HOAs. Did he fall off a turnip truck and hit his head? In Arizona where he performs, and as reflected in the pro-HOAs laws enacted in other states, my data over the past 8 years show only three substantive bills (foreclosure, due process, control of public streets, etc) out of thirteen that were put into law, and one was declared unconstitutional in a suit brought by the Carpenter Hazlewood law firm.

 

While CAI argues before the legislatures about freedom of local control and the rule of the majority, it seeks top-down imposition of laws upon the HOA homeowners, without their consent and to their detriment. It has now admitted that HOAs are mini-governments, so now it’s OK to interfere with a government contract. And that the right of a minority to change the HOA “constitution”, the CC&Rs, is consistent with democratic government.[2] It appears to be an effort to control the HOA board cliques with their “expert” advice.

 

In spite of its alleged argument with the legislature (carefully called “government”), CAI figures that these draconian undemocratic propositions will be accepted by the legislators in view of their alleged necessity and compelling justification to protect HOAs.  Propositions denying homeowners the equal protection of the laws and due process protections.  I guess CAI, a third-party interloper that seeks to alter the private contract between the HOA and the homeowner, are feeling the threat of a loss of their ability to show a value to HOAs.  And to protect their income stream.

 

This is a sad case of “the tail wagging the dog.” It is sad because there exists an alternative legal scheme for those individuals who seek the benefits of planned communities and condos, who with full knowledge of all the factors relating to HOA lifestyles and without duress, so freely choose. This alternative, existing in all states today[3], can provide these benefits along with the protections of their rights, freedoms, privileges and immunities under the 14th Amendment and every state’s Declaration of Rights, which do not exist under the HOA authoritarian regime.

 

References

  1. CAI Carpenter Hazlewood Delgado & Wood enewsletter of 3/11/11, Why HOAS?, Mark Holmgren.
  2. See video of CAI lobbyist’s statement before the Arizona House Government Committee meeting of 2/15/11 on HB 2441. (http://azleg.granicus.com/ViewPublisher.php?view_id=13, scroll down to entry link).
  3. See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.

For AZ Speaker Pro Tem is an honorable man

 Dear Arizona Speaker Pro Tem Montenegro,

 

Rep. Montenegro, you seem to have adopted the same approach as the special interest CAI lobbyists who are against constitutional protections for the people.  I cannot understand your continued support for this bill, and making false statements about all the stakeholders, holding an “ex parte” meeting with the only the special interests attending and no advocates, and alleging agreement by all “stakeholders” to the trivial amendment to a horrendous bill —  the Home Builders Assn., CAI, and its its property managers spring-off, AACM.   America is a country of the people, by the people, for the people,  not for the special interest business groups.

 

Emails in opposition to the bill were sent to you from a few homeowners prior to your ex parte meeting, any one or all of whom you could have invited to the meeting, if you were indeed a neutral party as you alleged in your false statement to COW. (Ariz. COW # 2 session of Feb. 23, 2011, HB 2441. For an anlaysis of this bill, see Analysis of AZ HB 2441, the HOA minority control bill).

 

You erroneously assert by your actions, following CAI’s propaganda, that vendor groups are equal in private property rights with the  homeowner.  No, I’m sorry, you obviously believe that these so-called “stakeholder” vendors hold more rights than the homeowner, since you neglected to include any outspoken and known opposition homeowners in your alleged “stakeholder” meeting.  This is disgraceful conduct for one who holds the position of Speaker Pro Tempore. This is the attitude expected from a fascist government where  the business of government is in supporting businesses, and the people’s rights are secondary.

 

How do you justify this bill as good public policy? You bring disgrace and dishonor on all those good and honorable Arizona legislators.  I find your position quite surprising and disturbing, and I have difficulty in reconciling it with your deep religious beliefs and involvement with the National and Arizona Messengers of Peace (not related to the UN Messengers of Peace).   “The desire of his heart is to be a vessel of honor in God’s hands.”

 

Your floor amendment is dishonorable and still allows the declarant or a minority of members to control the board and therefore the HOA, as anyone who has really looked into the real-life conditions of HOA living would easily discover.  You’ve added additional “wiggle room” wording that still permits the CAI lawyers to run to the courts and soak up those fees.  Why were you afraid to include homeowner advocates at your meeting?  Was it because we don’t count?  

 

Interestingly, Rep Burges, Chair of the GOV Committee, responded to my email on HB 2441 by noting that I had not appeared before the GOV committee to speak.  I answered her with,

 

Generally, after 10 years before the Legislature, I’ve found such in-depth exchanges do not occur at any committee hearing.  I do not understand why any legislator or committee chair does not pick up the phone and say, “Come on down and explain your email to us.”  Yet, paid lobbyists walk the halls and legislators seem always to have time for them.  

 

Your disingenuous statement is living proof of my statement to Rep. Burges.   

Anticipating such a continued bias toward HOAs by a good number of legislators, I had included the following plea to the Justices in my Feb. 1, 2011 amicus brief to the AZ Supreme Court  in Gelb, “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.” (See Advocate submits amicus brief in AZ supreme court appeal of HOA due process).

 

You have not served your Party or the people of Arizona well with your misguided belief that better landscaping makes a better Arizona. I will be requesting that you be removed as Speaker Pro Tempore for your unethical conduct on behalf of the special interests, and against the good people of Arizona.

 

George K. Staropoli, Pres.
Citizens for Constitutional Local Government

 

To the valiant advocates fighting for HOA reforms:

Some words of encouragement on this President’s Day.

The task of educating the legislators, the courts, the media and the public as to all the factors inherent in the HOA legal scheme is a dauntless task.  Advocates have been doing battle against a fortified adversary with funds that has indoctrinated the many into accepting certain benefits, and instilling fear into the many of dire consequences.

The national lobbying trade group alleges that, if the HOA legal scheme is made to conform and adhere to our American system of government, where individual rights and freedoms come first before the objectives of the “state”, the HOA, all would be lost.  This same trade group claims to have  an educational mission, yet only instructs the people on how to live and accept the authoritarian HOA regime under its adhesion contract and under pro-HOA special laws.  Yet, it maintains legislative action committees in all 50 state legislatures to insure that its teachings and view of the new American political and social systems continues to prevail.

Do not falter, do not dishearten, as you continue to battle before the legislature for your rights as an American.  Take heart from the words of President Theodore Roosevelt in a speech made in 1910: 

 The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

Courage, and remember:  Illegitimati non Carborundum.  Don’t let the bastards wear you down!  Gen. Joseph Stillwell, WW II.

 

AZ Supreme Court accepts advocate’s amicus brief in challenge to HOA statute

The Arizona Supreme Court has accepted my amicus curiae brief in support of constitutionality of the DFBLS/OAH due process statutes (Gelb v. DFBLS, CV 10-0371-PR). The Court has yet to decide if it will hear the Petition from the homeowner. Neither party objected to my brief, not even the CAI HOA law firm that received harsh treatment. I had presented background facts and arguments in an effort to assist the Court in understanding the disgraceful state of affairs with HOAs.

Responses to my brief, if any, are due within 20 days. For over 10 years I’ve been waiting for the CAI HOA attorneys to debate the substantive, constitutional issues with me for all to see.  I await their response.

The excerpt below makes a strong accusation against the Arizona Legislature, which can be applied to all state legislatures. Given this posture,  I would like to thank those all too few individual legislators who had come forth over the years, in several states, to do battle for homeowner justice, but who were not sufficient to overcome the opposition in their legislatures. Your efforts are very much appreciated.

From the first paragraph of my Conclusion:

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 (real estate dept.) for due process protections and the equal application of the laws. Even the lower courts are suspect. With all due respect, it remains to this Court to stand behind the promises and covenants between our system of government and the people as set forth in the U.S. and state Constitutions.

See Advocate submits amicus brief in AZ supreme court appeal of HOA due process, and for a copy of the amicus brief, Amicus.