Tag: law

FL supreme court upholds private contract over constitution

 

This decision sounds really exciting, but . . . . . Read the relevant part of the Florida Supreme Court opinion (emphasis added):

 

The Grand’s declaration, which was filed in 1986, adopts the terms of “the Condominium Act of the State of Florida (Florida Statute 718, et seq.) in effect as of the date of recording this Declaration” and does not contain “as amended from time to time” language subjecting it to future statutory changes to the Condominium Act. See Angora Enters., Inc. v. Condo. Ass’n of Lakeside Vill., 796 F.2d 384, 386 (11th Cir. 1986) (noting that express agreement by parties in the declaration of condominium regarding application of future statutes to the association may determine whether parties have a “constitutional protection against future amendments to the Florida Condominium Act which, absent such an agreement, might arguably impair a party’s contract obligation”).   Cohn v. The Grand Condo Assn., SC10-430, (Fla.  3/31/2011).

 

In essence, the court is saying, as I’ve always opposed, that the people have the right to determine via a private contract whether the supreme law of the land, and of the state, applies to them.  And by constructive notice alone, without explicit consent, the courts hold that you surrendered your rights! This is wrong!  This “opt out” is ridiculous!  And it is an essential defect in the HOA/condo legal scheme – private parties can draft and file a document, especially a declaration, that exempts them from the application of the Constitution and laws protecting the people. So, why bother to have a constitution anyway?

 

Another advance for The New America of HOA-Lands. 

HOAs in America: the illusion of democracy in a dysfunctional republic

In order to understand the public policy toward homeowner associations with its manufactured appearance of bona fide homeowner consent, we need to examine the political climate and value system within our society.

See short video paralleling the decline of Rome. 

1. The empty value system – anything goes

The Declaration of Independence provided the fundamental basis for the unalienable rights that no government may take away from the people. Unfortunately, contemporary political and judicial leadership has failed to retain and uphold our unalienable rights in a replacement value system of ethics and morality.

2.  The decline in the caliber of elected officials and the rise of political party ideology

 The political system has evolved to a point where the vast majority of elected officials in each party feel comfortable only in advancing ideas acceptable to their core supporters. The political system now rewards ideology over pragmatism. . . . What’s unusual now is that the political system is more polarized than the country. Rather than reducing the level of conflict the ideology increases it.

3.  Legitimate government and the illusion of justice

And speaking of justice, the necessary ingredient for the claim to the legitimacy of government and to be obeyed in conscience, Allen offers Machiavelli’s advice, “Because the [right] to rule is rather the appearance of justice rather than justice itself, the appearance of injustice defeats every [right] to rule.”

4.  The rise of authoritarian private HOA governments

“Therefore this Restatement is enabling toward private governance. The question of whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law [meaning these servitudes], not constitutional law.” And, “What has been deliberately and carefully made ‘socially acceptable’ was, not too long ago, thought to be irresponsible — both financially and morally.”

5. The transformation of society and the acceptance of the New America of HOA-Lands.

 There are parallels between the acceptance and establishment of the HOA as an institution, and the influence and acceptance of Nazi doctrine in Germany before and during WW II. Both offered benefits and serious drawbacks, but only the pluses were seen and not the negatives. The rationale of the defenders of Nazism follow a similar pattern to that of the defenders of the HOA authoritarian, private government.

Mayer wrote that the “good” Germans went along “in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.”

 

Read the complete article HOAs in America.

AZ bill, HB 2441, is a bill of attainder and an act of tyranny

 

Arizona’s HB 2441 is an unconstitutional Bill of Attainder under the US (Art. I, § 9, cl. 3) and Arizona Constitutions (Art. 2, Section 25).  It is a violation of the “separation of powers” doctrine as the legislature has acted to punish certain members of its citizenry — the taking of private property rights from homeowners living in HOAs — by a “trial of the legislature” and a legislative exercise of a judicial function.  As such, a bill of attainder has been described as an act of tyranny (US v. Brown, 381 US 437 (1965)). 

A careful reading of the Senate amended version of HB 2441 . . . permit and declare it is not illegal to so act by minority vote, the taking of private property rights from Arizona citizens without their consent, and in violation of their contractual rights. This bill, by its “blessings” that it has now been declared legal for a minority to so act and therefore incumbent on the homeowner to be obey, opens the “barn door” to the establishment of the oligarchical control of the community.

In Brown, the Supreme Court held,

“The Bill of Attainder Clause was intended to implement the separation of powers among the three branches of the Government by guarding against the legislative exercise of judicial power.

“A statute which inflicts its deprivation upon named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, discouraging future conduct.”

HB 2441 repudiates the fundamental premise of democracy — majority rule. This bill is a special law for a private party and is prohibited under state and federal constitutions.

Read the complete Commentary here.

Violating HOA due process would be oppression

“That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.” (Thomas Jefferson, 1801).

 

The Arizona bill, SB 1148 passed out of committee on March 1st, to restore the Office of Administrative Hearings adjudication of HOA disputes appears to be stalled, once again as in 2006, by the House Rules Committee.  Once more it is not on the House Rules agenda.  Failure to address the objections of the appellate court opinion in Gelb will heighten the likelihood that the Arizona Supreme Court will now have to decide the issue, and other matters raised in my amicus curiae brief. See Gelb v. DFBLS, CV 10-0371-PR.

 

The supreme court has yet to decide to hear this important case, waiting, as expected, to see if the Legislature would pass SB 1148 to render the constitutionality issue moot – no longer a controversy.  If not handled by the Legislature, then the Court cannot avoid addressing the following plea in my brief:

 

It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE for due process protections and the equal application of the laws. Even the lower courts are suspect. With all due respect, it remains to this Court to stand behind the promises and covenants between our system of government and the people as set forth in the U.S. and state Constitutions.

  

In deciding the constitutionality issue, the Court will need to address the real issue at hand, the separation of powers issue, where the Legislature remained silent and did not file a defense of their HOA due process statute. However,  the Legislature felt compelled to intervene in the controversial DOJ challenge to the immigration law statute, SB 1070.  Is this selective support for certain laws and parts of the Constitution over others? 

Senate President Pearce, author of SB 1070, said, “I want to make sure everyone knows, we, in the Senate, will govern from the bottom up, not from the top down” and I believe in the rule of law, I’ve always believed in the rule of law, We’are a nation of laws.”  Yet it appears that top-down, special interest “push” pressures still prevail with respect to HOAs (See prior commentaries with respect to HB 2441).

It is a well established doctrine that the legitimacy of a democratic government  rests on fair and just laws.

“That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law is to protect, and to violate would be oppression.” (Thomas Jefferson, 1801).

 It would seem that the best course of action is to quickly pass SB 1148

Proposed “consent to be governed” statute, the “Truth in HOAs” bill

No provision of any contract or any declaration of covenants, conditions, and restrictions . . . is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties . . . . Any representation or statement offered as clear and convincing evidence . . . shall include a signed statement containing the following, beginning with “I understand that I can ask that the following be read and explained to my satisfaction.“

So reads an excerpt from my proposed “Truth in HOAs” statute that should be made law in each and every state. That is, if indeed the legislature stands by the Declaration of Independence and the US Constitution, which we are hearing so much about in the media nowadays. We know that CAI is opposed to such constitutional protections for members in HOAs, as the record shows in their NJ Twin Rivers appellate amicus brief. But, it is time for the legislators to “man up” and protect the people from harm inflicted by special interest groups. There is no necessary and compelling need for legislatures to deny the homeowner his rights, freedoms, privileges and immunities as a citizen of his state and of this country.

Read the complete proposed Truth in HOAs statute.

See also Public policy protects HOA principalities,

Calif. opinion: CC&Rs and surrender of constitutional rights