Tag: Gandhi

AZ bill returns homestead protection against HOA claims.

We must make the injustice visible. We must provoke until they respond and change the laws.[1]

Arizona alert – strike everything HB 2648 (2024)  returns homestead protections against HOA claims.  

“ARS 33-1807 and 33-1256. “B. THE COMMON EXPENSE ASSESSMENT LIEN PRESCRIBED BY THIS SECTION IS NOT SUBJECT TO THE HOMESTEAD EXEMPTION.”

Let’s go back into the forgotten history of the homestead exemption in Arizona, starting in 2004,[2] 2007[3] and 2023.  The issue was and is the use of statutes to mimic the common boilerplate of the CC&Rs:   Statutory vs consensual lien. “A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents.”[4]

In 2004, still learning the ropes, I did not follow up on the state actors controversy based on the ARS statutes saying (my emphasis), “‘The association has a lien on a unit for any assessment.” 

“Representative Farnsworth made quite clear that ARS33-1807(A), which opens with, ‘The association has a lien . . . . is a statutory lien and not a consensual lien – the homeowner has no choice in the matter whatsoever.” (emphasis added).”

This can only be interpreted as a mandatory statute making the HOA an arm of the state, acting in place of the state – a state actor.[5] No, and, if, or buts! It is not a consensual lien if mandated by the state!

A second argument raised many times subsequent to 2004 questions the validity of a genuine consensus – “an agreement to be bound.”  In short, the argument raised in Common Sense[6],

“First, the application of contract law to the CC&Rs agreement reveals the many invalid aspects of the CC&Rs as a bona fide contract.  It is obvious from a simple review of contract law.  Yet, courts have held that the CC&Rs are a contract or are to be interpreted as a contract, and have even analyzed the meanings of CC&Rs in the same manner as a contract. But, the courts do not question the validity of the CC&RS contract with respect to contract law.  The courts resort to equitable servitudes law, which simply requires the acceptance of a deed in order to bind the home buyer to the CC&Rs sight unseen.”

On this point alone, HB2468 must be strongly supported. The controversy of statutory vs consensual is avoided to the relief of homeowners.

It is the Achilles heel of CAI’s reason for being  — cruel foreclosure and no homestead exemption as a punishment to coerce obedience.

Notes

[1] Mahatma Gandhi, fighting for India’s independence from British rule, 1948.

[2] HOA Homestead Exemption Exclusion (SB1470) (2023) (A 2004 look back and a comment by Fred F).

[3] See, The constitutionality of legislation: AZ Gov. vetoes homestead exemption bill (2007);

Arizona SB1330 restores lost homestead protection in HOAs (2007).

[4] See, All state “may/shall” statutes imply HOAs as state actors.

[5] See in general, Are HOA state actors created by statutory use of shall/may? (Section 2, paragraphs 5 +). (2019).

[6] HOA Common Sense, No. 4: Consent to be governed

The how and why of “boss” HOA presidents

This commentary is a follow up on my review of Kelly G. Richardsons’ article (Dictatorial HOA presidents and silent directors are at risk).

With all due respect to Richardson, his discussion of the role of HOA “boss” presidents and silent boards of directors makes no references to the causes of this common defect in the management of HOAs, or the more relevant, in ruling a community.  As an important CAI (Community Associations) lawyer advising and educating BODs on how to rule a community, we should expect not only answers but solutions as well.  His article does neither.

Richardson does  inform his readers about the makeup of good presidents: “Good HOA presidents understand the boundaries . . . . Good presidents are key . . . .”  He closes with the advice, “So, keep the good ones!”  He fails to address the legal structure of an adhesion contract and the CC&Rs that grant the BOD broad powers and authority. As such, the legal structure would not stand up to constitutional judicial scrutiny if the HOA were an arm of the state and not a private, contractual arrangement.

The legal structure prevents active, meaningful, democratic participation by members in board  elections and in amendments to the governing documents as found with public government. For example, members cannot file a petition, equivalent to a public domain initiative, requiring the BOD to hold a vote of the members on an issue, removing the absolute power to do as it pleases when contrary to the will of the  majority. The members would be able to contest the BOD’s position. Ihe absence of constitutional protections promotes the formation of power cliques that function as authoritarian governments. And so, we have “boss” presidents and silent boards of directors.

As a good lawyer, Richardson would probably say that this is the law, this is the way it is, and if you don’t like it change the laws. And who helped create and shape these pro-HOA laws?   For example, CAI has been involved since the beginning in 1964 in creating those Uniform Common Interest Ownership Acts (known as UCIOA) and adopted  with some modifications by a handful of states.

It’s up to YOU, as it has always been.

“It does not  help the sheep to blame the wolf. The sheep must not fall into the clutches of the wolf “ (Mahama Gandhi, fighting the imperialist British Empire).

HOAs undermine principles of democratic America

The immediate reaction to the title of this editorial comment from the vast majority of readers, is as I suspect,

Unbelievable, wild statement; No way; I love my HOA; the volunteers work for the community; the board of directors has my interests at heart; I can vote for the directors and on other matters, And anyway, I really don’t care, I’m happy with the amenities, facilities, and protection of my property value.

This blindness toward compliance with the US Constitution and the laws of the land can be traced to the culture of the HOA-Land Nation as I presented in Part 1 of The HOA-Land Nation Within America. As for the false argument that because members can vote for a board of directors makes the HOA democratic, ignores the reality of Cuba, China, Russia, North Korea and other countries where people can also vote for their leaders.  Voting alone does not make a democracy.

Other aspects of the HOA model of government that illustrate departures from public government, the Constitution and laws of the land can be found in the HOA-Land Nation publication: lack of oversight protections and the absence of a separation of powers, especially there is no independent judicial function for fair hearings; an absence of meaningful  penalties against acts of the Board amounting to absolute immunity; and inadequate fair election procedures as found in public elections.

In all practicality, the HOA private government is based on a business model and not a municipality model, and whoever described a business as being democratic?  As such, following the business model, the HOA is a one-party government; the party of the incumbents who control the selection of candidates, who can vote, and the election procedures designed to keep the establishment in power.

Here’s what Gandhi had to say about one-party governments and democracy. With the independence of India from British control in 1947, Mahatma Gandhi reflected on the dominance of the Indian National Congress Party over the newly formed government.

“[Gandhi] realized that a one-party system could actually be a no-party system, for when the government and party are one, the party is a rubber stamp and leads only to a fictitious existence.

‘Without free criticism and potent opposition, democracy dies.

‘Without political criticism and opposition, a nation’s intellect, culture and public morality stagnate; big men are purged and small men become kowtowing pygmies. The leaders surround themselves with cowards, sycophants and groveling yes-men whose automatic approval is misread as a tribute to greatness.’”

(The Life of Mahatma Gandhi, Louis Fischer, The Eaton Press, collector’s edition (1988, initially 1950).

The common culture within the HOA-Land Nation treats any criticism, any opposition, any independent thought not supported or approved by the board of directors as subversive. The members are inculcated into adopting and supporting this attitude and treat such views as harmful to the peace and harmony of the community.  Committees of members — opposing political parties – are attacked and treated with hostility. Free political speech and dissent is not tolerated.  

With 23% plus Americans living in HOA-Land, the HOA culture has had its effect on national, state and local politics; ignoring the Constitution and laws of the land are easily acceptable and do not constitute a problem for HOA members. 

Webinar Lost Constitution – Pt 2

HOA Lost Constitution Webinar

Veritas para justitia

(truth for justice)

The overall intent and purpose of this FREE StarMan Group webinar series is the education and reorientation of HOA members, especially the board of directors,  to long ignored issues of constitutional validity; issues that the public will not find in the propaganda from the Evil Empire.

The next webinar is planned for  Friday, June 5, at 11:00 AM PDT. 

It is a continuation of part 1 and will cover introductory  materials needed to understand the reasons for BOD reorientation. If you missed Part 1, I urge you to view the video and script prior to attending Part 2. The video is available at https://vimeo.com/421950279 and the script is here.

To receive an invitation please respond to gks256@NYU.edu with “webinar” as the subject and the email address that you will use to participate.  Invite email will be sent with info needed to attend.

Session Format

Free ZOOM webinars; mute attendees

The sessions are limited to less than 100 attendees

Time restraint to 30 minutes

Attendees may submit questions via chat to be answered at later session.

Password protected

Will be recorded

“We must provoke until they respond and change the laws.”

Gandhi