Tag: HOA constitutional government

HOA reform advocates: the enemy is us

Let me start by saying that I have the utmost respect to the handful of persons, advocates, who have actively supported HOA reforms of substance over the years, and have had some success.  To all others I say, the enemy is us.

I well understand the reasons and justifications of people refusing to get actively involved. Personally, talking over the phone and through emails, that most do not have the temperament, want someone to solve their own personal issue with an attempt to expand it nationally, fear retaliation, fear legal issues and the government, and just don’t care about government issues in general.

The numerous social media reform groups, some old but most are new less than 3 years, have not only failed but have  resisted the establishment of a unified,  bona fide and legitimate, national entity; argued as far back by Evan McKenzie when interviewed by Shu Bartholomew, to the best of my recall, sometime before 2004. Today, I must regrettably say some groups make this claim, but they are in name only.

And so, the many Davids believe that they can defeat the mighty Goliath of CAI. The newbie leaders who rise from time to time and disappear a few years later, start by believing that CAI acts in good faith and they can work things out for the protection of homeowner rights. They quickly discover that they have been had, been played with, and realize they are helpless to withstand the entrenched CAI. Today, many who are beginning to be actively involved realize the dominance of CAI over their legislature.

Watch AZ CAI lobbyist at work, 2010, before committee dodge questions, make false statements, and avoid hard questions. Who Controls public streets? HOA or municipality? Part 2 of 3 (youtube.com). (Early quality video).

As the adage goes, as a figural demonstration of one’s commitment to reforms, “put your money where your mouth is.” However, in reality, I have asked people to buy my book, HOA Constitutional Government, as a demonstration of national commitment on a national website, Amazon, but have received token response.

In my announcement I  clearly stated, and still abide by it, that if there were such a legitimate national reform group I would assign all my royalties to that organization.  $15.00 is a trivial show of commitment but will be effective for recognition of national support. BUY NOW! Amazon books.

Taking a positive perspective, I noticed over the past few years a growing trend toward legislation and court decisions in several states affirming constitutional and fundamental rights of HOA members. That’s a good sign that advocate messages and communications are having an effect. 

Now is the time to strike while the iron is hot! Get unified, get organized, get focused, and stop the HOA social media reform groups’ fragmentation of me first, NIMBY policy.

All state “may/shall” statutes imply HOAs as state actors

The use of the words “shall” and “may” have generally accepted meanings in state laws and statutes. Their use in bills and laws relating to HOA-Land raises the highly controversial question of: Are HOAs state actors?  “The overlooked impact and consequence of this word is to legalize activities and actions that were all-to-fore not legal rights granted to the HOA.”[1]

Arizona’s HB 2575 creates HOAs as state actors with the slick use of the legal differences between these terms. BUT, as applied to sui generis HOAs, implicitly create state actors. The bill introduces a new section (emphasis added) with, “ARS 33-1820. Powers of the association. Subject to the provisions of the declaration, the association may:” A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents. Very clever!

Item 4 is particularly onerous because of the use of the introductory “the association may.” A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents. Very clever!

Item 4 was particularly onerous because it permitted the HOA Board to lobby in the name of the members.

“[the association may ] 4. Institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more members on matters affecting the association or planned community or the members’ interests.”

After 3 sessions ending with “ret on cal,” (retain on calendar)  I emailed my may/shall state actor argument (as summarized here) to the legislative leadership resulting in the sponsor’s amendment rewording item (4). In relevant part, “the association may not institute, defend or intervene in litigation or arbitration in its own name on behalf of itself or a member.”

Thus, a potential constitutionality challenge was avoided as I had instituted in 2013, and won, with the help on a nonprofit legal organization, Arizona Center for Law in the Public Interest (ACLPI).[2]

Although the bill passed out of the House with the other argument that the 12 items also reflect an implied state arm it was a major victory 1) on a broad constitutionality issue and 2) a punch in the nose to CAI who actively sponsored this bill, according to the AZ Homeowners Coalition.  CAI can be beat!

There are other arenas to challenge and expose CAI for what it is and stands for.  I present some 56 events over 24 years that serve to guide what worked and what did not work for advocates to successfully challenge the Evil Empire. Organized into 4 sections: On Reform Legislation, On The Bill of Rights, On the Judiciary, and On Civics.[3]  Available on Amazon, paperback or Kindle.

References

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

[2] Suing the AZ Legislature: AZ Attorney General admits SB 1454 HOA to be invalid and without effect.

[3] Read the book, HOA Constitutional Government: the continuing battle.