Tag: due process

Gross injustice: HOA declarations not a contract, but held binding as a contract

In Epernay CA v. Shaar the Texas appellate court again avoided declaring that a declaration of CC&Rs is a contract, but use the carefully worded, CC&RS “are subject to the general rules of contract construction,” followed by, “In construing contracts. . .” Other courts have declared CC&Rs to be a contract without providing evidence, making the declaration a dicta (ipse dixit made by a judge). Others have referred to cases that, themselves, are also dicta utterances.

 

The reason for this is that HOA governments under CC&Rs are held to be subject to the laws of equitable servitudes, which simply requires the filing of the CC&Rs with the county in order to be binding on the unsuspecting homeowner. He doesn’t even have to read the CC&Rs or even explicitly consent to agree in general, or to agree with the surrender or waiver of all his rights stated or implied in the CC&Rs. If indeed CC&RS were to be considered a bona fide contract under contract law 101, they would be thrown out the window.

 

See the responses to the Truth in HOAs poll where 92% said they would not agree to the conditions in HOAs as disclosed in the Disclosure Agreement.

 

Additionally, if the requirement for the genuine consent with full knowledge, and the absence of misrepresentation, were applied under contract law, the CC&Rs would be thrown out the window.

 

Why have the courts followed servitude laws over constitutional law with its requirements for the equal application of the law – contract law – and due process protections against special laws for special private organizations? Why have the courts or state legislatures failed to declare HOA governments to be an unconstitutional delegation of legislative powers to private organizations? Or to be state actors under the criteria set forth by the US Supreme Court (and not the ancient and misplaced holding of the “public functions” test)?

 

If people can get together a draw a contract, call it CC&RS, and operate as private governments not subject to the 14th Amendment, why do we need constitutional government? That’s secession, isn’t it?

Courts will enforce CC&Rs except when . . .

This Alabama appellate decision, Grove Hill HOA v. Rice, sheds light on the reasons CAI insists that the CC&Rs being strictly enforced by the HOA and the courts: the irrational fears of a slippery slope eradication of the HOA. (The HOA was seeking an injunction against the homeowners who had built a driveway not to its liking). One person, the proft-seeking developer, is allowed to set the rules that govern the HOA community for all time to come, regardless of any political consequences with respect to the creation of a private government regime.

 

The trial court held, based on the Willow Lake opinion, emphasis aded,

 

“The Association maintained throughout the proceedings that any violation of a restrictive covenant, if allowed over its objection, necessarily dilutes the power of the restrictive covenants and thereby lessens the value of the subdivision property. We agree. In creating the restrictive covenants, the partnership expressly declared that the purpose of the covenants was `to protect the value and desirability of the Property.’”

 

However, as we are finally beginning to see a proper sense of justice for homeowners, the appellate court attempted to reject the Willow Lake precedent and held, “We do not interpret Willow Lake as requiring that an injunction is due to be granted in every case in which a resident has violated a restrictive covenant. Indeed, this court has applied the doctrine of “undue hardship . . . .” That is, emphasis added,

 

enforcement of covenants running with land `”is governed by equitable principles, and will not be decreed if, under the facts of the particular case, it would be inequitable and unjust”‘; specifically, if `”the restrictive covenant has ceased to have any beneficial or substantial value”‘ or `”the defendant will be subject to great hardship or the consequences would be inequitable,”‘ a court of equity will not enforce the covenant.

 

Unforunately, to complicate matters, “undue hardship” requires “clean hands” on the part of the homeowner in that he had no prior knowledge that his act was in violation of the CC&Rs. The court held that the homeowner had prior knowledge and therefore had “unclean hands,”  stating “that a restrictive covenant should be enforced if the defendant had knowledge of it before constructing an improvement contrary to its provisions, even if the harm is disproportionate.” The homeowner lost and had to undo the driveway at a cost of $15,000 to him.

 

 

Grove Hill HOA v. Rice, No. 2100293 (Ala. Civ. App. July 29, 2011).

CAI acknowledges “unconstitutional taking”, but not from homeowners

CAI-CLAC (CA CAI lobbying committee) has apparently discovered the meaning of “an unconstitutional taking” when it object to the new California law, SB 209, that permits homeowners to install electric vehicle charging stations in HOAs. CAI argued in its July 26, 2011 email release (not shown under HOT BILLS on its website), “a very significant problem remained unresolved in that the measure essentially condones an unconstitutional governmental “taking” of property that is commonly owned by all the members for the benefit of one. (My emphasis). I’m impressed that CAI acknowledges constitutional law.

 

However, CAI, that national leading HOA educational organization — as it likes to promote itself, but is truly a business trade group to help its members make $$$$ — has no quarrel with the taking of homeowners’ constitutional rights, freedoms, liberties, privileges and immunities as a result of the application of the common law of servitudes over constitutional law. The taking of constitutional rights and freedoms, and the violation of the equal application of the law and due process protections for homeowners in HOAs by constructive notice — the simple posting to the county clerk’s office — binds buyers to the CC&Rs sight unseen, never mind the absence of explicit consent.

 

CAI seems to take this fascist state approach, where the goals of the state, the HOA, come before individual rights, is an absolute, sacrosanct, untouchable right conferred upon the HOA, without regard to the US Constitution. The justification for the legitimacy of the HOA government is the lame excuse that the homeowner remains in the HOA and does not leave its jurisdiction, thereby giving his implied consent to be governed and to the surrender of his rights. But, the HOA is not a de jure public government that functions without any contract. The HOA is a contractual arrangement, and this application of public doctrine is an constitutional taking of the homeowners’ private property rights.

 

Sadly, state legislators see no evil, no rejection of the US Constitution, and the courts allow this secession from the Constitution to prevail. What is the purpose of a constitution if any two people can sign a document that says we reject the Constitution? What is happening to America?

 

As we discovered with regard to Arizona’s secessionist feelings earlier this year, Art. I, Section 10, Clause 3 of the Constitution prohibits compacts between the states without the consent of Congress: “No state shall, without the consent of Congress . . , enter into any agreement or compact with another state”. And to allow private citizens to do so makes a mockery of the Constitution and the American system of government.  Are we already in The New America of HOA-Land? 

 

Read on CAI, read on and learn more about constitutional law.

HOA justice: dues must be paid no matter what!

This Pennsylvania case explains why homeowners cannot withhold HOA payments even when in a dispute. Understand that while a dispute over a credit card charge may be put on “hold” by filing a certified letter, this FDCPA protection does not apply to HOAs. (Nor can your unpaid assessments be wiped out by bankruptcy).
The trial court’s Opinion correctly sets forth why the substantive and procedural law supports the grant of the Motion [summary judgment for the HOA], and cites Mackenzie [PA case] for its legal explanation that: assessments are due and payable by the homeowners; the issues raised concerning the propriety or legality of those assessments are neither properly litigated in a suit for the collection of those assessments nor properly withheld for such reasons; and the homeowners contesting the assessments must seek remedies other than self-help or non-payment, such as a declaratory judgment action. [In short, a “must pay” no matter what rule.] As a matter of settled substantive law, the Opinion explains why these ancillary issues raised by Appellants cannot be used as a defense against non-payment.

Footnote 8, in part, further explains, “Although Appellants’ ancillary [not directly related to the case] issues allege improprieties and/or illegalities of the assessments, such issues are not a defense for non-payment and cannot be used to delay payments that are due as a matter of law to the Association.”

Fawn Ridge Estates HOA v. Carlson, (Pa. Cmmw., No. 1462 C.D. 2010, July 25, 2011. (Not for precedent).

Why isn’t this very serious legal doctrine, one with important issues of a surrender of one’s rights to the HOA — one that the average person would expect to be just, fair and therefore a valid law — not  disclosed to the potential HOA home buyer? This disclosure is made more important because the HOA obtains its powers under an adhesion contract that suppresses the rights and freedoms available to the people who do not live in an HOA.

It will be made part of The Truth in HOAs Disclosure Agreement.

The hostile face of Arizona’s DFBLS to HOA dispute resolution

So I now ask, as the DFBLS website still informs viewers that there may be a fee increase, placed there soon after SB 1148 became law, “Why is there this heightened concern for HOA filing fees and not other fees? Have the pro-HOA special interests been at work making suggestions to, or whispering in the ears of, DFBLS Director Palma to increase the fees as part of their effort to stop justice for homeowners in HOAs? The same group that lost 42% of their cases before OAH, who had finally brought down the 2006 law as unconstitutional, and now threatens to do so again with SB 1148.

 

Please note that DFBLS is not listed inder ARS 41-1092(7), definitions by name of agency, as a “self-supporting regulatory agency”  . . . In fact, according to its minutes, the arguments for a fee increase were rejected by the JLBC on November 15, 2006.

Under the DFBLS web page, Homeowners Associations, why is there no information being provided to homeowners who may seek to file a complaint, except to have them read the law? Why is there no email contact provided for the public? For a $50 fee, DFBLS provides plenty of information under its mobile home obligations. And much, much more under its Fire Marshall and Manufacturing obligations.

Why is DFBLS presenting this hostile face to homeowners in HOAs seeking justice under the law?

Read the complete Commentary at DFBLS Hostility