Tag: HOA fundamentals

HOA lawyers take heed! Federal judge chastises lawyers

The NY Times Opinion by retired federal Judge Luttig*, while speaking to the national Trump Era crisis, well applies to HOA lawyers. I am completely mystified by the lack of defense and silence by state attorney generals, constitutional think tanks like CATO Institute, The Heritage Foundation, The Federalist Society, and constitutional lawyers and law schools. Read on!

“Leaders of the legal profession should be asking themselves, ‘What role did we play in creating this ongoing legal emergency?’ But so far, there has been no such post-mortem reflection, and none appears on the horizon.  Many lawyers ‘have instead stood largely silent, assenting to the recent assaults on America’s fragile democracy.’

“More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. . . . Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.”

The Opinion is concerned about what, if anything, is being done to rectify this attack on democratic institutions.

“The Federalist Society, long the standard-bearer for the conservative legal movement, has failed to respond in this period of crisis. . . . Principled voices [must] speak out against the endless stream of falsehoods and authoritarian legal theories that are being propagated almost daily. To do otherwise would be to cede the field to lawyers of bad faith. We have seen in recent years what the unchecked spread of wildly untrue and anti-democratic lies gets us.”

Addressing law colleges failure to educate students, a movement is called for.

“The movement will focus on building a large body of scholarship to counteract the new orthodoxy of anti-constitutional and anti-democratic law being churned out by the fever swamps. The Constitution cannot defend itself; lawyers and legal scholars must.”

In the past I’ve written about the failure of law colleges to include the numerous views and positions on the constitutionality of the HOA legal structure. See “Is CAI’s ‘lack of candor to the tribunal’ intentional?”

*          “The Trump Threat Is Growing. Lawyers Must Rise to Meet This Moment,” NY Times Opinion, Nov.23, 2023. By George Conway, J. Michael Luttig and Barbara Comstock.  “The writers are lawyers. Mr. Conway was in private practice. Mr. Luttig was a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Ms. Comstock represented Virginia’s 10th District in Congress from 2015 to 2019. They serve on the board of the newly formed Society for the Rule of Law Institute.”

The loss of American spirituality: a lesson for HOA leadership

Institutionalized religions have failed the people, focusing on bible interpretations and ritual; government has failed the people, adopting “God is dead” public policy. What has become of the Golden Rule? “In everything, do to others what you would have them do to you.” (Matthew 7:12).

“When someone has been given much, much will be required in return; and when someone has been entrusted with much, even more will be required.” (Luke 12:47-48).

The Gospel of Wealth (1889), Andrew Carnegie,* a lesson for HOA leadership and boards of directors.

“This then, is held to be the duty of the man of wealth: To set an example of modest, unostentatious living, shunning display or extravagance . . . to consider all surplus revenues which come to him the man of wealth thus becoming the mere trustee and agent for his poorer brethren . . . which, in his judgment, is best calculated to produce the most beneficial results for the community . . . doing for them better than they would or could do for themselves.”

It is easily demonstrated that the HOA legal scheme has not created a better community or a better America.

* Andrew Carnegie was an American industrialist and philanthropist. Carnegie led the expansion of the American steel industry in the late 19th century and became one of the richest Americans in history. He became a leading philanthropist in the United States. His 1889 article proclaiming “The Gospel of Wealth” called on the rich to use their wealth to improve society, expressed support for progressive taxation and an estate tax, and stimulated a wave of philanthropy.

Legislative proposals and research memoranda

Many homeowners have become alienated from the political process both within the HOA — board of directors, president, community managers (CAM), and the HOA attorney; and  within state government – the legislature, judiciary, and elected officials.  The news media has failed to tell the truth and to ask the hard questions, as they commonly proclaim to their audiences, with respect to the HOA legal scheme, questions of constitutionality, and misrepresentation in the selling process; thereby giving a false message and spreading misinformation in support of the special interests.

They feel that their voice doesn’t matter and that the special interests control the policy decisions affecting their lives.   VCL-HOA assures that homeowner influence is brought to bear on the decisions made by politicians and state legislatures and agencies, including on the HOA political community as  well.The Valley Citizens League – Homeowners Association Research is a national, member-based  community organization performing research on HOA problems and issues through a study process, rather than by opinion polls, surveys or focus groups.

Important information: View full document, VCL-HOA, Sample case analysis, Sample legislative memo

Disclaimer

The information contained in this written or electronic communication, and our associated web sites and blog, is provided as a service to the Internet community, and does not constitute legal advice. We try to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel. No person associated with AHLIS or Citizens for Constitutional Local Government, Inc. is an attorney nor is employed by an attorney.

HOA defect: volunteers & boards of directors

There is a serious defect in the HOA model of local governance based on a private contract that requires a board of directors to manage the association through the use of unpaid volunteers. It seems as though the framers ignored the old truism: you get what you paid for. Now don’t get me wrong, there are qualified directors and those with an honest belief in volunteering and pitching in to make their HOA a better place. But the legal structure to often prevents them having any real impact. A topic to be addressed elsewhere at another time.

The framers of the model were well aware that to ask homeowner/members to fork up assessments that included director/officer salaries or compensation would never fly. It would not even fly today. Recourse then was made to the utopian concept, the private commune, where everybody chipped in and did what they were capable for the benefit of the commune. And that required individuals who believed in the model to volunteer their time. Without this above and beyond call for volunteers the mass merchandising of HOAs would have failed.

In order to explain my opinion, I must take members back to 1964 and the framing of The Homes Association Handbook that became the HOA declaration of CC&Rs “bible.”  All HOA declarations flow from this Handbook and constitute the vast boilerplate found in all CC&Rs over the past 58 years.

This topic was addressed in the Handbook. And since the growth in size of HOAs led to incorporation of the associations, the need for a board of directors was mandatory and a solid and necessary requirement. The answer was solved, they thought, by unpaid volunteerism. Further reaching out in order to make the HOA legal scheme work, the demand for involvement in the affairs of the HOA, especially for directors, ran against the national data on citizen involvement in government. (Just check the number of voters in presidential elections as a percent, not of registered voters, but of voter age people, shows on average a 35% turnout.)

As it has become apparent, many HOAs have resorted to “conscripting” members just to sit on the board to meet the statutory and governing document requirements. They are generally YES men, going along with the power clique or president’s wishes. This has led to anyone, qualified or not, to get him on the board.

Arizona’s landmark fair elections, free speech law on HOA governance

On Sept. 25, 2022, Arizona’s new HOA reform law (Session Law Ch, 125; HB2158),  bringing substantive free public speech on HOA governing issues and establishing a fair elections procedure, will become effective.

This is a major step forward to the application of Constitutional equal protection of the laws and proper due process as guaranteed to all US citizens. Under this bill, effective and meaningful opportunity for Arizona members to participate fairly and in an equal manner in the governance of an HOA.

It starts with the ability to campaign and discuss governing issues with the members on the same level playing field. All the members seeking change have to do is to get involved knowing they won’t be “fighting city hall” without legislative support. The “tools” are there for members to stand up and fight for their rights. No one else will do it for you! Especially your board of directors.

As James Madison wrote in The Federalist Papers #51: “If angels were to govern men, neither external nor internal controls on government would be necessary.” HOA boards for the most part have demonstrated that they are indeed not angels.

I congratulate the bill sponsor, Rep. John Kavanagh, and all advocates who supported this bill and the Arizona Legislators coming to understand the need to stop board of director’s abuse under authoritarian private agreements.

The intent and purpose of this law are highlighted below :

“‘association-specific political sign’ means a sign that supports or opposes a candidate for the board of directors or the recall of a board member or a condominium ballot measure that requires a vote of the association unit owners.“

The details specify the rights of members and prohibitions on the BOD regarding these signs. Furthermore,

“association may not prohibit or unreasonably restrict a unit owner’s ability to peacefully assemble and use common elements of the condominium [or HOA];

“group of unit owners may assemble to discuss matters related to the condominium [or HOA], including board of director elections or recalls, potential or actual ballot issues or revisions to the condominium documents, property maintenance or safety issues or any other condominium matters . . . .”

Relevant sections of HB 2158

The relevant sections of the new law can be read here: HB 2158;  Ariz. Sess. Law Ch 125 (2022). An audio version on Spotify can be heard here: https://spotifyanchor-web.app.link/e/mqz2Fe4Dytb