Tag: due process

HOA adudication at OAH: a rebirth of constitutionality, abuse, and legislation

It seems that with the “rebirth” of Arizona administrative agency adjudication of HOA disputes in 2011, CAI and other the pro-HOA supporters want to stifle this due process protections that has leveled the litigation playing. Although not the answer to all issues, with its 42% win ratio favoring Pro Per homeowners, it is a very good start. In continued attempts to deny homeowners a fair and just hearing, the first OAH case in 2011 reveals a challenge to the constitutionality of the new statute, feeble as it may be. To better understand the issues at hand, let’s review the activity took place in two arenas in 2008: the courts and at the legislature.

1. Courts. After several prior years attempts to obtain a just hearing process in HOAs, a hard fought battle resulted in the passing of HB 2824 in 2006 that established OAH adjudication of HOA disputes. After a full year of complaints in 2007, 2008 started with several constitutional challenges to the new laws. Starting early in 2008 with Waugaman and the OAH appeal to the superior court, the new statute was found unconstitutional. At the close of the year the Merrit OAH case broadened the court ruling to apply to all HOAs. At the same time of Waugaman, Gelb filed an OAH Petition that resulted in an appellate court affirmation of the superior court ruling in 2010, making the ruling precedent.

2. Legislation. While the CAI attorneys attempted to end OAH adjudication, legislation was introduced in 2008 to stop the abuse of process at OAH, whereby the HOA attorneys were trying to make OAH just like a civil court proceeding with the formality of the rules of court. The two prominent bills, HB 2724 and SB 1162, were defeated, but they caused panic in CAI and with HOA attorneys. Among other things, these bills sought:

HB 2724

“notwithstanding any provision of the declaration, an amendment to the declaration is void and unenforceable against any unit owner who entered the association before the adoption of the amendment unless the amendment was approved by unanimous consent of all unit owners . . . .”

the association shall enforce that provision of the condominium documents against all other unit owners who can reasonably and readily be determined to be in violation. . . . the association bears the burden of proving that the association enforces that provision uniformly. . . . Any provision in the condominium documents that is not uniformly enforced pursuant to this section is deemed unenforceable for purposes of any pending enforcement action.

Except as expressly prescribed in this chapter, the requirements of this chapter including any rights conferred by this chapter shall not be modified by agreement or otherwise waived. A person shall not use any device to evade the limitations or PROHIBITIONS of this chapter.

SB 1162 (two separate issues presented)

A. Amendments. “An amendment to the condominium documents does not apply to any court or administrative action filed before the amendment is adopted.”

B. Attorney fees – penalties.

the administrative law judge shall not award attorney fees or costs and a court shall not award attorney fees or costs in any appeal from an administrative order unless the administrative law judge or court makes a finding that the attorney or party did any of the following:

1. Brought or defended a claim without substantial justification.

2. Brought or defended a claim solely or primarily for delay or harassment.

3. Unreasonably expanded or delayed the proceeding.

4. Engaged in abuse of discovery.

If the administrative law judge or court makes a finding pursuant to subsection C of this section, the administrative law judge or court may allocate the payment of attorney fees among the offending attorneys and parties . . . [This was designed to punish the abusers, the HOA attorney and HOA, as the homeowner was overwhelmingly a Pro Per.]

“without substantial justification” means that the claim or defense constitutes harassment, is groundless and is not made in good faith.

Please bear in mind that, “Good faith, a state of mind consisting in ((1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation . . . (4) absence of intent to defraud or to seek unconscionable advantage.” (Black’s Law Dictionary).

Are we seeing a second attempt at abuse of process in OAH adjudication? Today, the first Petition was challenged with a feeble constitutionality challenge. Of the first 3 Petitions filed, 2 resulted in the quick use of a civil court permitted Motion to Dismiss being filed with one Petition having already been dismissed. In the newest Petition, filed just last week, the HOA has not yet responded. As I have previously written, the other Petition appears to be proceeding with a pre-hearing conference, where I suspect a discussion of the Motion to Dismiss will occur. The OAH records are not clear. From the OAH stated purpose of pre-hearing conferences and topics for such a hearing (A.R.S. § 41-1092.05(F)), it seems the question of OAH jurisdiction will be raised a a legal matter – “Clarify or limit procedural, legal or factual issues.”


If this is indeed the case, using motions to dismiss to over-power the homeowner and to avoid any audiotape record of the hearing — an invaluable resource not readily available in trial court proceedings — I strongly urge that legislation be introduced as indicated above to put a stop to this abuse. Legislation to stop “ex post facto” amendments, which is a violation of Constitutional restrictions, must be proposed and sponsored in January.

If, on the other hand, the Petitions did not conform to the statutes for OAH adjudication, then all those looking to file a Petition must read the OAH letter from its Director addressing homeowners in HOA proceedings — Homeowner Petitions Against An Association. A must read for all.

HOA boards cannot escape wrongful acts by their managers

Given the fact that the HOA manager and/or firm acts “in place” or “on behalf of” the board under a contractual relationship that explicitly identifies the manager as an “agent” or “management agent,” the HOA can be held liable for the acts of its manager. (See study of Arizona management contracts).

Under tort law (the common law of wrongful acts) of vicarious liability (the tort doctrine that imposes responsibility upon one person for the failure of another) and respondeat superior, the board cannot ignore, walk away or refuse to take corrective action action against the manager without incurring liabilities.

First, from the HOA’s obligations, under the officers and directors duties to act in good faith and as a prudent man, the board is obligated to act against its manager where state laws and the governing documents have been violated, or when the manager is clearly committing wrongful acts, like making false statements, harassing a homeowner, etc.

Second, let’s look at what the Restatement (3rd) of Agency (2006) has to say about the liabilities of the agent and principal (manager – board). (Of course, one would not expect to see this material covered in any government sponsored seminar, or manager licensing education, like at the Leadership Centre in Phoenix, which is supported by the towns of Chandler, Mesa, Gilbert, Queen Creek, Apache Junction). “Direct liability” refers to suing the party as such. The main points are summarized below:

¶ 7.01 An agent is subject to liability to a third party (homeowner) harmed by the agent’s tortious conduct.

¶ 7.03 (1) A principal is subject to direct liability to a third party harmed by an agent’s conduct when . . .

(a)(ii) the agent’s conduct, if that of the principal, would subject the principal to tort liability; or . . .
(b) the principal is negligent in selecting, supervising, or otherwise controlling the agent;
(2) A principal is subject to vicarious liability to a third party harmed by an agent’s conduct when . . . the agent commits a tort when acting with apparent authority in dealing with a third party on or purportedly on behalf of the principal.

¶ 7.05 (2) When a principal has a special relationship with another person [as the board with a homeowner], the principal owes that person a duty of reasonable care with regard to risks arising out of the relationship, including the risk that agents of the principal will harm the person with whom the principal has such a special relationship.

¶ 7.06 A principal required by contract or otherwise by law to protect another cannot avoid liability by delegating performance of the duty, whether or not the delegate is an agent.

AZ independent HOA tribunal again under constitutional attack

The Arizona independent tribunal, Office of Administrative Hearings (OAH), must really be hurting not only the CAI lawyers, but all lawyers, too. OAH does not pay attorney fees and HOAs cannot expect to get fees from the homeowner. They have to pay from the total of assessments collected. And with a national law firm at its side, it will be paying big, very big.

In the opening rounds of this second period of adjudication, the first ending with 42% of the cases won by the homeowner, a national law firm undertook the defense of an HOA on the issue of an amendment to the CC&Rs. The amendment forced a homeowner to stop building her home, which she was legally entitled to under under her existing CC&Rs. In Wozniak v. North Slopes POA, OAH No. 11F-H1112001-BFS, filed July 22nd, the attorney seeks dismissal of the case based on 2 black and white claims: the homeowner failed to indicate what law or governing document provision was violated, and that North Slopes was, by definition, not a planned community and, therefore, not subject to OAH adjudication – the HOA does not own any property in the subdivision.

BUT, this did not stop Karen Karr of the national firm of Lewis Brisbois Bisgaard & Smith from an opening barrage against the constitutionality of the old statute — old news and moot – and the claims that the new statute is also unconstitutional. She is a labor management attorney. Obviously, the ALJ would dismiss the Petition based on the “black and white” laws and need not entertain the constitutionality question (as an earlier OAH case appealed to the superior court bypassed the constitutionality question). So why the fuss? Headlines? Coaching from you know who lobbyist firm who got scathed by its initial foray into the constitutionality issue, and seeks others to do its work? The one who promised to attack the new statutes? Could that be Carpenter Hazlewood?

The attorney spends 1 1/2 pages (of 7) on reciting history, not applicable to the new statute, and fails to state the fact that the AZ Supreme Court did not allow the appellate case of Gelb to serve as precedent when it declined to hear an appeal. In another 1/2 page, unsupported allegations are made as to the constitutionality of the new statute – no case law, no constitutional law, no administrative agency law. Why on earth bring constitutionality up in such a feeble manner?

My guess is that we will see another attempt, maybe more, to unseat justice for homeowners in HOAs. I mean, it took Carpenter Hazlewood 4 tries before it won  the appellate court, but not precedent, decision in Gelb.

BTW, why DFBLS did not outright reject this Petition is a mystery. Clearly it did not meet the requirements of proper adjudication. (While the new DFBLS Petition form asks for specific statutes alleged to have been violated, it does not ask about specific provisions of the governing documents that are alleged to have been violated). If DFBLS had properly rejected the Petition, it would have had to return the $550 fee.

Furthermore, I can understand the ALJ giving the Petitioner a chance to answer, but this ALJ, who is experienced in HOA matters, does not ask the homeowner to address these jurisdictional issues right-out, but seeks a pre-trial conference and entertains a motion for continuance.

Is there a “plot” to raise OAH expenses on frivolous matters in order to obtain evidence for a fee increase?  An increase that was already on the drawing board even before the law became effective in July.

AZ CAI attorney Carpenter admits CAI is no longer in control

An advocate questioned the sincerity of CAI attorney Carpenter’s repeated use of the phrase, “They know us,” in his Sept. 15th seminar, Best Practices for Meetings in an Era of New Regulation. In response I wrote,

Earlier this year I wrote that the victories of Arizona’s HB 2441 (defeated), CAI soundly thrashed by Arizona Senate, and SB 1148 (passed, overcoming Carpenter’s DFBLS/OAH court victory), New Arizona laws for 2011 session — thanks to the legislators, signaled a major defeat for CAI in the power politics game at the Legislature. The tone of Carpenter’s remarks in the seminar only reinforces my view that a major setback took place at the Legislature for CAI. All as a result of the efforts of advocates, the real homeowner rights advocates, to get involved and expose, challenge and confront the CAI propaganda. It’s working!

I will just mention a few points from the seminar. First, Carpenter laments the new age of regulation, meaning a loss of CAI influence on HOA boards.

Second, his advice on what not to do is given with cautionary remarks that his, and the boards’, statements will go viral on the web (internet), like now. And he realizes that he is helpless to stop it. So he cautions the boards not to play “redefine” games — calling a meeting a “workshop” —which will only result more regulation when a homeowner (Sally was his example) runs to the legislature to stop some HOA evil. He further advised the attendees to shut up and not be recorded for the internet distribution. In fact, he suggested a reasonable rule, in his view, that would restrict a homeowner’s right to publish his taping of the meeting on the internet.

Third, he sought to confuse issues by identifying the management class of HOA members, the directors, as the true advocates because they are fighting for “what the members signed up for.” This serves to confuse the meaning and purpose of the bona fide “homeowner advocate” label.

In short, CAI is reacting to our issues and no longer controls the playing field. Congratulations everybody!

See also, CAI attorney Carpenter’s view on OAH bad for HOAs.

For legislators: poster-child case of HOA extortion of homeowners

This Florida case is the poster-child for the “standard operation procedures” by rogue HOA boards. The situation heard too many times by this advocate, and amounting to legalized extortion because most homeowners cannot afford to go to court for justice. And the HOA, its management firm, and its attorney all too well know this!

The “see no evil, hear no evil, speak no evil” attitude of state legislatures and their misguided belief that the HOA, like any other business  are angels can do no wrong — and will protect the rights and freedoms of its members — must cease right now! This is another example of “us agin’ them” and the destruction of trust and social capital within HOAs.

The appellate court quoted,

“The trial court found that the complaint to foreclose the lien was premature. Agreeing with the trial court, the Third District noted, ‘Had the Association accepted and applied the tendered payments, the dispute would have been reduced to an inconsequential amount, and the Association’s attorneys could not in good faith have filed to foreclose the miniscule claim remaining.’ Ocean Two Condominium Ass’n v. Kliger, 983 So.2d 739 (Fla. 3d Dist. App. 2008).”

The court held,

“What can be gleaned from this record is that the association and its accounting methods were woefully inadequate to correctly ascertain and give notice of the amounts claimed to be due. Because of this imperfect record-keeping, the association did not make a proper claim of lien, nor did it give sufficient notice in its complaint of its claim. Had it done so, in all likelihood this case would not have even been filed. Saar showed that she consistently made the payments required and had detailed records to support her payments, many of which were not properly credited by the association. She paid all sums due in accordance with the notices and claim of lien.”

SAAR v. WELLESLEY AT LAKE CLARKE SHORES HOMEOWNERS ASSOCIATION, INC.