Tag: legal doctrine

The battle for HOA Constitutional Government – supplement

It should be well understood that the real purpose for HOA reform legislation is to seek homeowner-member justice and fairness. Either with respect to day-to-day denied under the HOA legal scheme, as set forth in the Declarations of CC&Rs and state laws. 

To be more specific, these rights affect free speech, participation in HOA government, fair elections procedures, due process with respect to fines and punishments including foreclosure abuse, and an effective means to hold the board accountable under the law. In other words, challenging the validity and constitutionality of the HOA legal structure.

Over the past year I have noticed a favorable increase  in legislation and in court decisions as a result of increased claims by homeowners and advocates who, by their actions, are winning with the winners.  What is there to fear? Reforms have moved at a turtle’s pace over the past 30 years. Nothing to lose by taking a strong stand backed by legal authority.

“There can be no change without change”

Encourage others to take a strong stand by providing authoritative support to win with the winners, as can be found in HOA Constitutional Government: the continuing battle. My Collective Writings over 24 years.  Spread the word to others to act without fear.

Publisher’s Cataloging-in-Publication Data

  • HOA Constitutional Government: the continuing battle / George K. Staropoli
  • 145 p. StarMan Publishing, Surprise, AZ | includes index | Published January 9, 2024
  • ISBN: 978-0974448886 (pbk) | ASIN: B0CSC5LCY8 (KDP eBook)
  1. Constitutional law – Constitutional principles – public policy – form and structure of government
  2. Political science – sovereignty – consensus. Consent to be governed –  law making  – local government
  3. Social sciences – community – social influence

K3154 – 3370 LCCN classification

Activist judge interpreting the law

I have presented my case many times, saying that many judges have become activist and in doing so have violated long-standing legal doctrine on the interpretation of contracts and laws.

“The Constitution should be construed so as to ascertain and give effect to the intent and purpose of the framers and the people who adopted it. We give effect to the purpose indicated, by a fair interpretation of the language used, and unless the context suggests otherwise words are to be given their natural, obvious and ordinary meaning.”

. . . .

An example of this misconstruing of the law — of the 14th Amendment, Section 3 —  

can be seen in the controversial Trump court battles.

“No person shall . . . hold any office, civil or military, under the United States [who]  shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

This CNN opinion by Dean Obeidallah quotes Colorado District Court Judge Sarah Wallace:

“[Wallace] ruled last week that former President Donald Trump ‘engaged in an insurrection’ on January 6, 2021, as defined by Section 3 of the US Constitution’s 14th Amendment. She didn’t disqualify Trump from the state’s ballot, however, finding that the ‘insurrectionist ban’ in the 14th Amendment does not apply to US presidents.”

Wallace added,

“At the time the 14th Amendment was ratified, an insurrection was ‘understood to refer to any public use of force or threat of force by a group of people to hinder or prevent the execution of law.’  The ‘events on and around January 6, 2021, easily satisfy this definition of ‘insurrection.’” [However,] ‘for whatever reason the drafters of Section Three [of the 14th Amendment to the US Constitution] did not intend to include a person who had only taken the presidential oath.’”

. . . .

To clarify, her decision is unreasonable and lacking in legal support. She interjects her opinion, my view, that she didn’t think the drafters intended to include the President although the wording of this 14th Amendment, Section 3 speaks to “no person.” That’s plain and simple.  If, as many courts have held when attempting to assert a missing clause into the law, “if the legislature wanted the clause it would have added the clause,” rejecting the lame defense that it was simply an oversight.

No unreasonable HOA expectations

A healthy democratic society cannot be said to exist without  a representative government making fair and just laws. A practical, real-life approach gave rise to the legal concept of reasonableness in an attempt to classify and designate conduct underlying a fair and just administration of the law. The reasonableness doctrine has finally come to HOA disputes in regard to reasonable expectations.

CAI has opposed the doctrine of reasonable expectations as too vague, too iffy, and disrupts the order and structure of the HOA “community.” In its amicus brief CAI argued that “reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants.”

The full commentary is a lengthy legal exposition examining 3 Arizona cases on the application of a homeowners’ reasonable expectation at time of purchase. Read it here: Reasonableness public policy. “reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants

AZ CAI attempts to unduly influence the courts

In Arizona’s Thompson v. Albertson,[1] the Arizona Supreme Court ruling in Kalway[2] was put to the test and challenged by CAI in its amicus brief.  Kalway held that

“The general-amendment-power provision and general-purpose statement were not sufficient to provide notice of future amendments. We interpret such restrictions to reflect the reasonable expectations of the affected homeowners.  We hold that a general-amendment-power provision may be used to amend only those restrictions for which the HOA’s original declaration has provided sufficient notice.”

The appellate Court addressed CAI’s 42-page amicus brief, which the court does not usually perform but special attention was warranted.  In short, CAI sought the appellate court to modify the AZ Supreme Court’s ruling that the case was a memorandum and not mandatory precedent. And as such, it did not consider its decision as mandatory precedent.  Therefore, the ruling applied only to the case at hand.

Not the first time CAI attempted to influence the Court. In 2011 CAI AZ had tried 3 times to have the court’s decision that OAH adjudication of HOA disputes was unconstitutional. I had filed as pro se amicus that was accepted and resulted, as I firmly believe, resulted in changing the appellate court decision as an opinion to a memorandum without precedent standing.

“The [AZ Supreme] Court in addition to its regular fashion of terse announcements, DENIED or ACCEPTED, added an order under its powers to do so, AZ Supreme Court Rule 111(g), that the Gelb decision was not to be published. Not being published means that it is not binding authority, or precedent. It seems then that the door is open and res judicata – already decided – doesn’t apply.”[3]

[In Thompson] Discussion, Section IV. The Amicus Curiae Brief

“¶31 Community Associations Institute (‘CAI’) filed an amicus curiae brief requesting ‘clarification’ and possible ‘limitation’ of Kalway. Whether Kalway should be clarified or limited is a question for our supreme court. . . .  (‘The lower courts are bound by our decisions, and this Court alone is responsible for modifying that precedent.’). We therefore decline CAI’s invitation to reach beyond the specific facts of this case to provide ‘direction and guidance.’”

Simply said, the appellate court rejected CAI’s attempt to overrule the AZ Supreme Court.

####

Thompson v. Albertson, No. CA-CV 23-0082 (Ariz. App. Div 10 10-24-2023

AMICUS CURIAE BRIEF OF COMMUNITY ASSOCIATIONS INSTITUTE (CAI) (FILED WITH THE WRITTEN CONSENT OF THE PARTIES)

Mark Lines – #020553

SHAW & LINES, LLC

Counsel for Community Associations Institute

First, CAI continues to misrepresent itself and claim it’s “serving more than 74 million homeowners . . . CAI is representing not only itself, but also its tens of thousands of members on this important issue.” CAI fails to inform the Court of that the homeowner “volunteers” constitute an estimated 32% of its membership and have an estimated meager 14% representation in its governing board of trustees.[4]

CAI membership, at most, consists of a miniscule .05% (.00048).

Of the 33,000 CAI members, a minority of some 10,800 are ‘volunteers’ and not attorneys or managers.

‘Volunteers’ (CAVL) represent a miniscule .016% (.00016) of HOA members.

Second, the CAI argument. The AZ Supreme Court decision in Kalway[5] made reference to the vague term, “reasonable expectations” when considering the validity of HOA amendments. (The supreme court realized that the common procedural covenant that any amendment passed by the necessary vote was valid regardless of its impact on the members).

What the original declarant might have intended, and what owners first reasonably expected of the eventual use and improvement of those lots must be considered in the context of time, and reasonableness should be measured by the collective voice, exercising their contractual right to lawfully amend their covenants.

“Indeed, a “covenant can be amended to refine it, correct an error, fill in a gap, or change it in a particular way.” Kalway,  . . . That’s the power and right of the owners collectively, through a majority vote, if the dictates of time demand it.”

CAI had argued against the reasonable expectations test as being too vague when all was clear and precise in the existing amendment procedures.  The Court rejected the amicus brief because  CAI had the audacity and the arrogance to ask the appellate court to overrule a supreme court decision.  Unreal!

There cannot be change without change

As long as advocates remain silent and fail to criticize CAI’s misrepresentations —
“candor to the tribunal” ethical code violations —  before the court, the legislature, and the media CAI will remain the voice of HOA-Land.

“To succeed you must accept the world as it is  and rise above it.”

[1] Thompson v. Albertson, No. CA-CV 23-0082 (Ariz. App. Div 1)  10-24-2023.

[2] Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532.

[3] (See AZ Supreme Court denied hearing the Gelb Petition to restore ALJ adjudication of HOA disputes).

[4] See “Why CAI is the Evil Empire.

[5] Supra n. 2.

Important AZ case on CC&Rs interpretation

While this case deals specifically with Arizona statutes, the legal doctrine applies across all states.  The issue involved amending the CC&Rs by means of consent forms. Learn how the courts look at HOA complaints on interpretating CC&Rs — not what you probably think. So learn! 

Your declaration probably has the misleading statement that the board has the right to interpret the governing document. Not so! The courts have that sole right.

Please note that on important cases affecting HOA board authority and  powers, you may well find CAI filing an amicus brief as in Mountz.[1] For those with some legal understanding, the following will make sense. If you don’t understand, post questions here.

 The case

A number of owners sued seeking a declaratory decision that the amendment was unenforceable, and the lower court agreed. The HOA had sent a letter indicating “that owners could approve the Amendment by signing and returning an attached consent form.” The result was announced at the subsequent annual meeting, and the VP  “certified that the Amendment was adopted by at least 50% of the lot owners.”

Now pay attention to my warnings of word games and expansionist interpretations. The lower court held “the Amendment invalid because it was not executed by at least half of the owners,”  because

“the CC&Rs authorize an amendment “by Instrument executed by the [o]wners of at least fifty percent (50%) of the Lots . . . and such amendment shall not be effective until the recording of such Instrument.” (Emphasis added.)  The Court said that “Because it was  not done in this manner, the Amendment is invalid.”

Mountain Gate argued “when the approving owners signed and returned their consent forms, they gave the Board actual authority to execute the Amendment on their behalf.”  The key issue came down to, what is the meaning of “execute.”

CC&Rs contract Court interpretation principles

My annotations are in square brackets [].

  • A restrictive covenant is a contract [The courts have not clarified that by “contract” they meant under Contract Law, which the CC&Rs would fail to meet.  Instead, one court held that the CC&Rs are interpretated as a contract, again missing application of Contract Law.]
  • When we interpret them, as with any contract, we strive to give words their ordinary, common-sense meaning to carry out the parties’ intent. [As with the argument over the meaning and use of the word “execute”].
  • Restrictive covenants “should be interpreted to give effect to the
  • intention of the parties. . . . We look to the “language used in the instrument, . . . the circumstances surrounding the creation of the [instrument], and . . . the purpose for which it was created.”
  • Enforcing the intent of the parties is the “cardinal principle” for interpretating restrictive covenants. . . . We will not read a covenant in a way that defeats the plain and obvious meaning of the restriction.  [the Amendment, and it was executed by only one lot owner, a Board member.] The plain language of Section 11(E) does not authorize one individual to amend the CC&Rs by “written consent”
  • we will not add provisions that were not originally included because doing so would defeat the intent of the amendment provision. . . . [the HOA]  broadly reads those definitions to allow the execution of a document through an agent. But the Association cites no authority supporting its argument that agency principles may trump the plain language of a restrictive covenant. [The HOA argued the interpretation of the word “execute” but the Court rejected this expansive meaning of the word within the intent of the CC&Rs. Also understand the need for supporting evidence to back any argument you make.]
  • Contracts are read to incorporate applicable statutes,  but a statute governs only when the contract is incompatible with the statute. [This is a strong statement of no interference with contracts].

Notes

[1] Mountz v. Mountain Gate, No. CA-CV 21-0656 (App. Div. 1, from Navajo County,11-10-2022).