Tag: justice

Texas & Arizona: the different meanings of ‘standing to sue’ an HOA

The question on appeal was a question of a legal standing to bring this suit against the defendants.  In general, the Texas appellate court in Webb clarified the legal status of “standing” (emphasis added),

 Standing deals with whether a litigant is the proper person to bring a lawsuit. . . . To establish standing, one must show a justiciable interest by alleging an actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally. . . . As stated by the United States Supreme Court, the question of standing is whether the party invoking jurisdiction has “a personal stake” in the outcome of the controversy.

 

Traditionally, courts have held that this “personal stake” must exist at the commencement of the litigation and continue throughout the lawsuit’s existence.

 

With respect to the Webb decision, the Court noted (emphasis added),  “Accordingly, unless Webb is an owner of a lot within Glenbrook Estates, she does not have standing to seek a declaration whether the Association waived enforcement of certain Covenants.”  Webb was not the recorded owner of the lot, only her husband’s name appeared on the deed, and Webb could not establish any fiduciary relationship or other representation for her husband.  Webb’s  case was dismissed due to a lack of standing to sue.

 See  Webb v. Voga, No. 05-09-00074-CV, Tex. App. Dist. 5, July 15, 2010.  (Glenbrook Owners Assn was a defendant).

NOW, TURNING OUR ATTENTION TO ARIZONA’S MOCKERY OF JUSTICE,  where the Office of Administrative Hearings adjudication of HOA disputes was declared unconstitutional  by the Maricopa County Superior Court (Meritt v. Phoenix Townhouse HOA, LC2008-000740, January 29, 2009), we find an unaddressed issue of standing to sue.  In short, after the decision and after a denial of this writer’s right to file a Motion to Intervene by Judge Murdock, an attempt was  made to bring the issue of a lack of standing to the attention of the court. The fact that the homeowner, who initiated the case, was no longer a member of the Phoenix Townhosue Assn.  On Feburary 23, 2009 I wrote Judge McMurdie, providing the evidence and saying,

 

Petitioner and real party in interest, Ron Merrit (sic), had quitclaimed his deed to his co-owned property in the Phoenix Townhouse subdivision on October 10, 2008, prior to the superior court special appeal of October 23. (Exhibit 1).  I believe this issue became moot at that point.

 I reminded the judge,

 If I had been permitted to intervene, these facts, discovered subsequent to filing the Motion to Intervene, would have been presented appropriately. Rule 60(c)(6) “does not limit the power of a court to entertain an independent action to relieve a party from judgment, order . . . or to set aside a judgment for fraud upon the court.” 

 On March 2, 2009 Judge McMurdie responded with the following Minute Entry (emphasis added),

 The Court has received Intervener’s, George Staropoli, miscellaneous filings.

IT IS ORDERED striking these filings.

IT IS FURTHER ORDERED that the Clerk of Court shall not accept any filings from George Staropoli in this case.

  Apparently, the Arizona courts have a different take on this doctrine of standing to sue when it comes to HOAs.  The decision and harsh attitude of the Judge, and the absence of any government agency or official to defend the statute, allows a paraphrasing of Carl von Clausewitz’s, “War is the continuation of policy by other means” (On War):

  “The judicial system is the continuation of policy by another means!”

  Read the complete story of OAH constitutionality at

The State of Arizona will not protect buyers of HOA homes!

HOAs as an institution and its impact on society

The common definition of “institution”, for our purpose, is “ a custom, practice, relationship, or behavioral pattern of importance in the life of a community or society”, or  “an established custom, law, or relationship in a society or community.”   The degree or strength of the acceptance of the established custom or behavior pattern often results in the perception that the institution is a concrete and indestructible reality, and not dependent on one’s belief or acceptance of the  institution.  For example, marriage is an institution that has been losing its acceptance in recent time.  

The definition of an institution well applies to planned communities and homeowners associations.  As a result of the failure over 47 years to mount substantial opposition, homeowners associations have become an American institution, an accepted  way of life.  While there were “spots” of protest and informed communication over the years, it was the accumulated effect of the national lobbying organization, CAI, supported by real estate and land usage legal-academic aristocrats writing in their journals and speaking at conferences, that brought about the institutionalization of HOAs.  Homeowners associations  have become accepted as a way of life in our society and culture, and thoroughy ingrained into our society. 

Consequently, it does not come as a surprise that any substantial opposition, such as my commentaries and citations of authorities, is met with disbelief. This is normal human behavior, which occurs with any idea or facts that are contrary to one’s long term beliefs and values.  This is the effect of institutionalization.  

When confronted with facts and hard evidence to the contrary of these long held beliefs, the normal reaction is a defense of the long held belief.  After all, many aspects of one’s life are tied to one’s beliefs and values, and they cannot be dismissed out of hand.  The common reactions are:  You are crazy! You don’t know what you are talking about!  You’re a weirdo!  A radical!  The reaction is to ignore any evidence to the contrary. 

The stronger the belief, the more reactionary is the response to contradictory information.  Defensive arguments offered to retain the long held belief can rise to highly illogical and absurd defenses.  Even legislators are not immune to this aspect of human nature.  Such is the effect of institutionalization on society.   

HOAs became part of our society with the help of the special interests who did not speak, and continue not to speak, of any negatives about homeowners associations in America.  The unspoken alliance of “no negatives” has been thoroughly ingrained into our elected officials, the media, and the public at large.  Just a natural consequence of the institutionalization process.  But, an institution does not automatically carry the stamp of being ethical, moral or just.  Slavery was once an American institution.  Established practices and behavioral patterns just reflect the mindset and values held by a large majority of the society, and we well know societies can go awry from time to time.   

The only rehabilitation therapy is the continued and repeated exposure to the facts, and I mean facts backed by hard evidence, legal authority, and confronting those seeking to maintain the institution’s continued existence in our society.  Such as, presenting the other side of the issue at hand, which, as we know, was often purely propaganda and not the full truth.  (A good example would be the HOA Academy backed by a number of Arizona towns that does not inform HOA members of their limited rights when a suit is brought by their HOA, or provide information about the statutes and the demanding nature of legal Rules of Procedure). 

In time, either the established institution is now seen in a a different and unfavorable light, or society becomes divisive with the supporters taking dogmatic ideological positions, resorting to, essentially, an “I don’t care” rationale.  

De facto NJ private HOA governments granted liability immunity

While reading the NJ Superior Court case, Fernicola v. Pheasant Run HOA[i],  I was surprised to find that New Jersey statutes grant an HOA greater immunity than granted to public entities.  In this case, a homeowner was injured as a result of tripping on an uneven section of common ground sidewalk.  One adjacent slab was 2 inches  above the other, of which the HOA was well aware.  But, this was just one such incidence of an  uneven sidewalk.    The HOA was not found guilty of gross negligence.

Negligence is a wrong under a duty of care doctrine, to which  HOAs and public governments are held accountable.  In short, from my lay knowledge of the law, a complaint must show that a duty of care existed, and that the accused violated that duty resulting in damage to another caused by this failure of care.   In general, public entities are granted either absolute or partial immunity from such liability[ii], under the logic that who would work for the government if all employees were made liable for their actions.   Apparently, to even a higher degree of protection,  this logic was applied to  de facto, private, contractual government HOAs.

Following is the appropriate section of the N.J. statutes.  Note that, once again, the law defers to, and makes legal, privately drafted contractual provisions. The presumption is that all members to these CC&R servitude contracts agreed to each and every surrender of rights and protections.  Note, too, the deliberately awkward wording of subsection (b), which obscures the fact that the HOA has immunity except from any of the enumerated factors.  N.J.S.A. 2A:62A-13 provides as follows:

a. Where the bylaws of a qualified common interest community specifically so provide, the association shall not be liable in any civil action brought by or on behalf of a unit owner to respond in damages as a result of bodily injury to the unit owner occurring on the premises of the qualified interest community.

b. Nothing in this act shall be deemed to grant immunity to any association causing bodily injury to the unit owner on the premises of the qualified common interest community by its willful, wanton or grossly negligent act of commission of omission.

Under real property tort law liability[iii], there are three categories of a duty of care toward others by property owners.  We would expect this common law doctrine to apply to HOAs were it not for special laws for private organizations.  Under tort law, there is not duty of care for trespassers — they enter at their own risk.  Licensees are people you invite on to your property, such as social guests.  With this class, the owner must only inform of conditions that he is aware of. The last class, Invitees are those whom the owner invites on to the property to conduct business, or that has public services, such as a public phone, etc.  The owner has a duty to inspect and to  inform this class of people of any situations that might prove harmful, such as faulty construction, etc.  However, given the above special statute, the HOA has almost no accountability to its member-owners; they would get a better deal from belonging to de jure public government.

IT SHOULD BE CLEARLY UNDERSTOOD that these grants of special privileges to private organizations, as the various state HOA and condo laws can be described, occur without any justifications or consideration being offered to the homeowners as to enhanced rights to deal with any abuse of these special grants.

AND LET US NOT FORGET the wisdom of the NJ Supreme Court in Twin Rivers[iv] that homeowners are protected by the business judgment rule, and not to worry about constitutional protections.  The Court failed to note the this rule was also designed to protect the HOA entity and not the people from abuse, in contradiction to the principles found in the Constitution and Bill of Rights.

 

Notes

[i] Fernicola v. Pheasant Run HOA, No. A-2027-08T1, N.J. Super. App. Div., July 2, 2010.

[ii] Under the Federal Tort Claims Act, the government can be sued for negligent acts or omissions that need not rise to the level of willful or gross negligence. See Tort Law for Legal Assistants, Linda L. & J. Stanley Edwards, eds. p. 218 0 219(Thomsom-Delmar Learning, 3rd ed. 2004).

[iii] Id, p. 86-88.

[iv] See generally A choice for Americans: the US Constitution or authoritarian, private HOA government.

HOA made no attempt to contact soldier in Iraq before foreclosing

As a followup to the Bogcritics article, While Fighting in Iraq, Soldier Loses Home to HOA,  a June 27th article appeared in the Telegraph Herald (Dubuque, IA), reporting that the Heritage Lakes HOA has hired a PR firm to address all the publicity stemming from this foreclosure.  In short, in dispute are the HOA claims that the assessments were owed before going on duty and when Clauer was on active duty,  and that they never knew he was on active duty.  Clauer’s attorney replied that they never even attempted to call him.

 Not addressing the claims and counterclaims, and adding to the justification for HOAs having the right to foreclose, I wrote in my HOA Constitutional Government commentary, “CAI attorney advises negotiate payments in HOA short sales“,

 I have written repeatedly about the short-sighted, self-defeating, hardnosed position that the HOA does not negotiate and does not give in one inch.  That posture stems from the great fear of a slippery-slope path to a loss in absolute power over homeowners — it would be a seen as a sign of weakness.  How true that is — asking the HOA to face reality rather than to foreclose themselves out of business as the CAI lawyers have been exhorting HOAs to do over the years.

 

And this attitude is reflected in the actions by the Heritage Lakes HOA — we don’t gotta do nuthin’, cause we have the power.

See also the May 2007, Memorial Day: American soldiers are defending a New America, one without democratic protections.

HOAs and unauthorized practice of law

I just received a copy of a letter from a homeowner in which the HOA manager explains the rights of the homeowner under the CC&Rs.  This is not an uncommon occurrence, where untrained and uneducated managers, even if they are  a Certified Legal Document Preparer (independent paralegal), make such statements in response to a homeowner’s request  “to know”.  The average homeowner is not familiar with the law and usually doesn’t understand what the rules mean or say.  And, obviously, the same goes for these HOA managers, including those with those CAI “certified” as to training designations — PCAM, AAMC, etc.
 
The manager, in defense of a board rule change, had misdirected the homeowner by quoting a section of the CC&Rs that grants the board to the right to create rules and regulations.  However, the issue at hand and pointed out to the manager, limiting the number or dogs, is not specified in the CC&Rs, which simple says dogs may be kept.  Consequently, the CC&Rs would have to be modified accordingly to specify any limitation, not by a vote of the board, but by the members.  This is both unethical and an outrageous unauthorized practice of law, which I shall say once more, occurs all too frequently under HOA regimes.
 
The letter did not contain a disclaimer that, “I am not giving legal advice or opinion, and I am not an attorney nor employed by an attorney.  You should seek independent legal advice from a competent attorney.”  (Remember that the HOA attorney is just that, the attorney for the fictitious HOA and not for the opposing party, the homeowner.) This simple disclaimer never appears on statements made by HOA managers, in violation of Arizona, and all other state UPL (Unauthorized practice of law’) restrictions.  Under  the Arizona Rules of the Supreme Court, R 31(a)(2)(A), “‘Practice of law’ means providing legal advice or services to or for another by: (5) negotiating legal rights or responsibilities for a specific person or entity.”
 
Rule 31(a)(2)(B) states:  “‘Unauthorized practice of law’ includes but is not limited to:  (1) engaging in the practice of law by persons or entities not authorized to practice pursuant to paragraphs (b) or (c)”
 
 
Subsections (b) and (c) state that UPL occurs when a person is not a member of the State Bar, including a disbarred or restricted Bar member.
 
 
IMPORTANT
 
If you receive any such letter from a manager or management firm employee, and that letter does not contain a disclaimer, please file a UPL complaint against the manager.  This is the only way to stop this practice.  It is a small thing you can do to help yourself and all other people living in an HOA.  If a director writes such a letter, then he risks personal liability for his error since he did not consult an attorney.  If he claims “acting on the advice of the attorney”, demand to see it in writing!  If he does not provide it, then he is not acting in good faith as required of directors of nonprofit corporations.
 
 

Qui Pro Domina Justitia Sequitur 

 (“who prosecutes on behalf of Lady Justice?“, DOJ seal)

 

 
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