Tag: law

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

CAI firmly supports the New America of HOA-Land

This issue of the Community Association Institute’s house organ, Common Ground, has the strongest language for the triumph of private agreements to supersede the US Constitution, making the Constitution a meaningless piece of paper, a meaningless document, and an empty compact between the people and the state. “The right to regulate activities within a community association is an embodiment of our constitutional rights to enter into agreements with our neighbors” so proclaims CAI. It implies that the community association is just another corporate entity, and not the governing body that regulates and controls the people within its borders, which is the essential ingredient that distinguishes a corporation from a political government, a state.

CAI is falsely arguing that anybody can write an agreement to circumvent the Constitutional protections that forms the basis of our political system of government. In essence, CAI is advocating the rejection of the Constitution as the supreme law of the land and you and your neighbor can draft a new constitution as you see fit, ignoring the original Founding Fathers document. And so can another group, and another, and another, and so on. Why Is CAI arguning so? Perhaps because as private organizations, HOAs are not bound by the Constitution and can do as they please – the Constitution be damned!

CAI bitterly complains in this piece about one “disgruntled resident “[who] used the power of government to limit the freedoms of association residents” and caused Arizona to use its legitimate police powers to regulate people and organizations, and to protect the constitutional free speech rights to fly the Gadsden Flag in HOAs

And, seemingly desperate, CAI lets its readers know where it stands: The one constant is that your colleagues at CAI, working through 33 state legislative action committees, are fighting to protect associations and ensure a healthy business environment for the companies that support our communities” (Emphasis added). CAI does not stand for the people, but for the undemocratic governing body of subdivision territories known as homeowners associations. And, CAI says it loud and clear, making it quite explicit: CAI is “fighting to . . . ensure a healthy business environment for the companies that support our communities.”That is, for their members, the lawyers and their self-proclaimed professional management firms. Let the Legislators hear well!

CAI is firmly behind the New America of HOA-Land of independent principalities unaccountable to any state in the Union. A balkanized hodge-podge of independent “city-states, under a parallel constitution known as the Uniform Common-Interest Ownership Model Act (UCIOA) and its variants across this country. Brought to you by the legal-academic aristocrats who have avoided any discussion of secession or repudiation of the principles of our American system of government. But, running to the state for protection as any principality must do. And the civil government of the state abdicates its duties under the US and state Constitutions, and protects these regimes against its own citizens.

“Fees, Finances and Flags,” Common Ground July-Aug 2011, CAI.

Twin Rivers and NJ HOA free speech rights, redux

Here we go again! Once again revisiting the question of free speech rights to display signs in a New Jersey HOA. In Mazdabrook v. Khan the appellate court revisited Twin Rivers and the underlying “test case’, State v. Schmidt, but with a different outcome in favor of free speech. I find it very interesting how our judicial system analyzes and bisects broad legal principles into 1001 “and, if or buts” micro-segments. How is the average person to know what is legal and what is not? Must he go to an attorney, who may or may not know but will take you to court to find out?

In Mazdabrook the homeowner placed campaign signs for his election as major of the town, not a for sale sign, but the HOA had governing documents permitting only for sale signs and no others. The court said No, No, No, that’s content-based restriction on commercial advertising and a constitutional violation of free speech rights and a total ban on other signs. In contrast to Twin Rivers, the HOA sign restriction to allow a sign in every window and one outside sign no more than three feet from the house was held not to be an unreasonable burden on the owner’s free speech rights. It cited the Restatement of Property “suggestion” that a covenant is not valid if it “not mentioning the obvious that a covenant is also invalid if it were unconstitutional.”

See, as to another question of reasonableness, the NJ Esposito case, In NJ, HOA boards do not have to be reasonable, and go figure how our judicial system works. See also the link to the Paula Franzese and Steven Siegel critique of the Twin Rivers decision in Rutgers Journal articles on HOAs and Twin Rivers case.

OF SPECIAL INTEREST and importance is the dissenting opinion of a judge who addressed such questions as: the waiver of one’s rights when simply taking possession of his deed, the implied consent to be governed, and a surprising reference to the waiver of ex post facto rights. Where did he get that from??? I wonder?

I’ve been told that the appellate decision has been appealed to the very same NJ Supreme Court, but oral arguments have not yet been heard. Also, the Rutgers Constitutional Law Clinic under Frank Askin, the party that represented the homeowners in Twin Rivers, has filed an amicus curiae brief for ACLU, and will be allowed to make an oral argument.

Cases

Mazdabrook v. Khan (N.J. Super. A.D., 2010, unpublished).

CBTR v. Twin Rivers, 929 A.2d 1060 (2007).

State v. Schmidt, 423 A.2d 615 (1980).