Tag: legislature

Whether apathy or anger, it’s always the HOA owner’s fault

The policy of the pro-HOA forces, including your state legislature, is to hold the homeowner at fault for problems in his HOA.  Never the HOA government itself.  Owners are apathetic and should be more involved in solving HOA issues, they argue,  but when owners join they find that their minority position has no power against the clique.  And if they react with anger against repeated outright violations by the board, they are again the problem people who just can’t get along.  Never the HOA government itself.

Many of us, who are involved in attempting to make changes in the public arena have encountered failures by our elected officials to provide fair and just HOA laws. And after a number of years begin to walk away with a harsh understanding that you can’t fight city hall.  There is nothing any different with the similar behavior of HOA owners facing the same public government failures with their HOA government.  They just can’t fight HOA city hall, too.

On the other hand, a number of homeowners react in the other direction by getting angry with the repeated frustrations with the failures of their HOA. With the lack of a viable means to correct these flagrant violations and unjust powers cast in concrete as CC&Rs and pro-HOA laws, what can you expect of good people?  So they get angry, shout, and become bitter at their treatment with no avenue for relief.  They are charged with abusive behavior, harassment, and bullying by the HOA. But, it’s never the fault of the HOA government itself.  Never.

The position of the pro-HOA forces has been, in my view: if the owners would only follow the rules all would be fine. Their position is that the HOA government works in the best interests of the community for everyone.  And that the best interests of the community rests in the unquestioned obedience to the HOA government.  Or suffer the consequences.

Like any other totalitarian government or banana republic, the HOA has the power to destroy your life by taking your home, by imposing harsh monetary penalties (fines), by curtailing your free use of the common property, by denying your right to vote as if you were a criminal of the HOA, and by ostracizing you and your family before the community. To drive you out of your home.  But, it’s never the fault of the HOA government itself.  No, never.

Of course, as with all dictatorships and banana republics where there are loyalists — those who support and defend their government — so, too, do HOA governments have their loyal supporters.  They have bought into the system and refuse to accept anything to the contrary. But what kind of community are they defending? Surely not a democratic system that surpasses that of the US Constitution.  It’s only common sense.

Decl. of Indep. from HOA government

In 2000, as a naïve and newbie to the politics at state legislatures, Arizona in particular, I addressed the HOA Study Committee on September 7th and submitted a statement titled, “HOMEOWNER’S DECLARATION OF INDEPENDENCE  from homeowner association governments.”  In it I quoted parts of the Decl. of Indep. and informed the committee that I had hoped that these hearings would bring forth a list of grievances for which homeowners were seeking redress. 

And as in those times of 1776, a small, principled and dedicated group of citizens are seeking a redress of their grievances. They first looked to the existing government, the HOA Board, and failing to obtain satisfaction therein, must seek other means of redress – a radical change in the concept and legal structure of the homeowner association controlling document, the CC&Rs.

Mr. Chairman, ladies and gentlemen of the Committee, at this time I had hoped that the citizens a Arizona would be able to present and enumerate their long list of abuses, and solutions to these abuses, similar to as is found enumerated in the Declaration of Independence, without the interference and obstruction by elements of these ‘oppressive governments.’  I see that this will not be the case.

The people of Arizona only wish to be able to present their case before this Committee in a fair and just manner. However, sadly I feel that, because of the composition of the committee, the homeowners are actually being placed on trial; that they are being asked to justify their grievances before their oppressors.

This statement was referenced in Robert Nelson’s 2005 highbrow book, Private Neighborhoods (p. 342). He covered a lot of material including HOA secession from local government and on constitutions (Part V, “Creating HOA Constitutions”).

The purpose of a constitution is to set the ground rules for governance. . . . Yes the rise of the private neighborhood has resulted in far and away the largest number of new constitutions in recent years. [Is he referring to HOA principalities?] . . . . [T]he real estate lawyers and their developer clients . . . with no previous experience available to understand what the pros and cons would be to live in a community controlled by covenants, [governing documents] were born.

In HOACommon Sense: rejecting private government I outlined 5 broad categories to be addressed by reform legislation.

Today, I think it would be helpful to adopt my statement and add those grievances that you feel need to be solved, and submit the entire package to your legislature and the media.  It would be your declaration from HOA governments, your petition for redress. Of course, the more signatures you have the better.

tyranny of the AZ Senate: SB 1482 as SB 1454 redux

Yesterday I noticed that ARS shows the statutes as in Ch. 254 (SB 1454) that includes those found unconstitutional.  This is misleading to the average person as there is no annotation that the court ruled certain statutes unconstitutional.

The status of these unconstitutional statutes must be brought to the attention of the court if an attempt is made to enforce any of them.

I can understand the need to formally remove these statutes by repealing them through the legislative process. But, until and if then, keeping them on ALIS with no annotation on the official records is mind boggling.  The repeal is taking place within SB 1482, and the statutes are being replaced by almost exactly the same laws now shown in ARS.  What’s the point?  This is a win-win – pass the bill and minor changes to SB 1454 take place, kill the bill and the unconstitutional changes remain.

I believe it only proper that an annotation be placed in ALIS to alert the public as to the facts, and a separate bill filed that deals solely with the repeal of the unconstitutional statutes in SB 1454 in the event SB 1482 or a House version fails.  This repeal bill should have been introduced at the start of the session, as “unfinished business,” and passed without delay. To allow unconstitutional laws to remain on the books is unconscionable.

Please call this sorrowful state of affairs to the attention of your media contacts ASAP!

AZ’s ominous SB 1482: the return of unconstitutional SB 1454

As last year’s sponsor of the unconstitutional SB 1454 amendments, Rep. Ugenti, vowed to reintroduce the bill. The reincarnation of her trice failed bill is now the omnibus SB 1482.  It’s really her HB 2371 that had twice failed and she attempted to get it passed as part of Sen. Griffins’ SB 1454. (see AZ Attorney General admits SB 1454 HOA to be invalid and without effect).

As an omnibus bill it contains the 5 separate topics relating to HOAs, which make it an omnibus bill. They are: planning board prohibitions on requiring HOAs; permitting the display of political signs, regulations on renter rights and protections, and permitting unlicensed and untrained HOA managers to represent HOAs in small claims court and before administrative hearings.

Some say that omnibus bills help legislators better understand broad changes in the subject of the bill.  But, are the above mentioned 5 topics really related to make a better understanding of the broad changes? No, not all. They are just separate changes, separate bills, thrown together for a reason. And that reason, as attorney Tim Hogan pointed out last year, is to get bills that could not stand and get passed on their own lumped together to obtain sufficient support by giving something to every supporter. It also involves accepting changes to the law that are of no interest to or concern of the supporter. These other changes are an “I don’t care” attitude.  So omnibus bills become law based on “I don’t care” how these non-interest changes affect others.

For example, what has planning boards got to do with better understanding the need for HOA managers to represent HOAS?  Nothing!  It’s an evil, an undemocratic mechanism to get support for unwanted bills. “Because of their large size and scope, omnibus bills limit opportunities for debate and scrutiny. Historically, omnibus bills have been used to pass controversial amendments. For this reason, some consider omnibus bills to be anti-democratic.” (http://en.wikipedia.org/wiki/Omnibus_bill). It forces an all or nothing choice.

Remember that it was Sen. Griffin, now the lead sponsor of SB 1482, who allowed her bill to be amended by Rep. Ugenti last year.  Apparently she was rewarded with the President Pro Tem position in the Senate.  And, Rep. Ugenti will get to hear the bill, if passed by the Senate, as she is Chair of the House Government committee.

Here we go again!  Kill the bill for a fourth time and force the legislature to introduce separate bills to allow a vote of one’s conscience and not an “I don’t care” vote.

HOAs with police powers: sliding down the slippery slope to HOA-Land

In State of NC v. Weaver[1] an HOA security officer stopped a driver on the suspicion of speeding within the HOA grounds.  Even though there were almost identical circumstances in Poris v. Lake Holiday[2] – uniforms, patrol car marked “Metro Public Safety,” and flashing lights – where the Illinois court held that security agents had the right to stop and detain drivers, the state in this appeal argued that the security officer was not a state agent. 

 The HOA authorized the security officers “to issue civil citations and fines to anyone on the property who violated the rules and regulations of the community (fines to be collected by a debt collector).  Note the broad grant of power to the security officers to fine and collect debt from non-members (the question of public streets remains unknown).  Therefore, it should not be surprising that the trial court had held:  “1. The armed security guard . . . [a]cted as an agent for the State[.]; 2. The armed security guard is a State actor.”[3]

 In reply, the State argued that:  “a traffic stop conducted entirely by a nonstate [emphasis added] actor is not subject to reasonable suspicion because the fourth amendment does not apply.”  In other words, while a cop had to have had a good suspicion that a crime was committed in order to stop and detain, it did not pertain to the security agent who was not a state agent, and constitutional protections did not apply as it does not apply to the HOA contract in general.

The question of whether or not the officer was acting under HOA orders was avoided, thus not allowing the question of HOAs as state actors to be entertained.   Questions like: Was the HOA’s authority to have its security agency act with civil police powers – stop and detain – constitutional?  Was the HOA, itself, a state actor?[4]

Where did the HOA get such authority? Certainly not by delegation from the NC legislature as required by law even for the creation of state agencies.  (In Arizona, constitutionality challenges were mounted by CAI attorneys questioning the authority of the Office of Administrative Hearings (OAH) to adjudicate HOA disputes).

But, this constitutionality issue was not the question before the court, but should have been as it pertained to the legality of the initial stop and detain act by the security officer.

The appellate court maintained that there was no evidence that the officer was acting to assist bona fide law enforcement officers or was asked by them for assistance.  However, it ignored its own acknowledged fact that the officer detained the defendant when  he smelled alcohol and “asked defendant to “step out of [the] vehicle and have a seat on the . . . sidewalk[.]”

The appellate court also ignored the trial court finding, which was not challenged by the State, that: “No Longer was he performing under Metro’s contract. After issuing the civil citation his actions exceeded his contractual authority. His goal and purpose evolved into detaining [d]efendant until local law enforcement arrived.” Was this a legitimate citizen’s arrest?

And what if the officer was acting under contract?  Then what?  Not addressed.

The appellate court dismissed the findings that the HOA security officer was a state actor and the case goes back to the trial court to decide its merits.  Namely, as a private citizen did the officer unconstitutionally stop and detain the defendant?  Poris said no. Federal court decisions on Arizona’s SB 1070 immigration laws put a strong damper on even police stopping and detaining citizens. 

So, where do we go from here?    Hopefully to answer the question of the HOA’s authority to act with police powers, a power confined to civil, not private, government.

 

 References

 

[1] State of NC v. Weaver, NO. COA13-578 (NC App. 12-13-2013). This appeal centered on the trial court’s granting of a motion to suppress evidence in the DUI case, because the security officer was a state actor.  It does not consider the very important issue of HOAs as state agents. The defendant was represented in the appeals case by NC’s version of a public defender.

[2] See in general, Corporatism in America: IL Supreme Court grants HOA police powers to arrest and detain.

[3] A ‘state actor’ can be defined simply as ‘an arm of the state’ as if it were a public agency or entity.  As such, the HOA would then be subject to 14th Amendment restrictions that protect your rights.  See Do state HOA Statutes Establish HOAs as State Actors?