Tag: legislature

AZ SB 1468 – holding HOA boards personally liable for going to court

SB 1468 is one of three bills that will put into place strong and effective penalties against HOA boards who use the threat of law suits to intimidate and punish homeowners into keeping their mouths shut. This bill will hold directors personally liable for the HOA’s attorneys fees if they lose in court.

This long needed enforcement of HOA laws against the boards, rather than just the members, comes about as a result of the HOA industry failing to police itself and to oppose intentional and rogue HOA violators. HOA lobbyists pay lip service to the ”5%” bad boards, but oppose any meaningful attempt to reign them in, a gross failure to act as a good corporate citizenship. Well, it’s time to pay the piper! HOAs “have gotten away with murder” against widows, retirees, single parents, minorities, and those who do not have the money or stamina to buck the HOA. Many of which are simply having the board to just comply with the law and governing documents.

Not only are the boards themselves directly at fault, they are also guilty of abdicating their duties and responsibilities under the law and governing documents to their hired hands, the attorneys and management firms. They are negligent in allowing their agents to act without accountability and without proper oversight and restrictions. The HOA attorneys make money win or lose by going to court. The HOA attorneys often step across the line and collude with the president and wayward boards to violate the laws and governing documents under the excuse of “in defense of my client.” They violate Arizona R. Civ. P. 11(a) (federal rule 11(b)) that requires,

The signature of an attorney or party constitutes a certificate . . . that to the best of the signer’s knowledge, information and belief formed after reasonable inquiry it [the complaint] is well grounded in fact and is warranted by existing law . . . and that it is not interposed for any improper purpose, such as to harass . . . or needlessly increase the cost of litigation.

and Supreme Court Rules of Professional Conduct, 1.2(d), counseling client to break the law, and  1.13(b), Organization as Client, with respect to knowledge of client breaking the law.

Former Arizona Supreme Court Disciplinary Commission Chair, David D. Dodge, wrote about attorney “overzealousness” in the June 2005 edition of Arizona Attorney. (See my Commentary, HOA attorney fiduciary duty to homeowners).

The pro-HOA forces will immediately cry, “NO one will want to become a board member and the HOA will fail.” Well, I got news. Not too many members are rushing to become board members today, anyway. This bill requires the legislators to not only make a just and proper approval of the SB 1468, but to take a proper and just ethical and moral stand against authoritarian, undemocratic private governments that abuse the citizens of Arizona. Violations of the laws and our principles of democratic government cannot be allowed to continue! There are existing legal mechanisms today — just as there are mechanisms for HOAs to obtain public street variances, but HOAs prefer their independent principality status rather than be part of the greater community — that will maintain the perceived planned community benefits while holding the HOA government subject to the 14th Amendment as required of all government entities. (See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters).

Homeowners in HOAs have been waiting a long, long time for effective enforcement against HOA violators. Passing SB 1468 would be a very good start!

PS. The other bills are HB 2445 and SB 1240.

SB 1468 changes to the law

Notwithstanding any provision in the condominium documents, if a unit owner incurs attorney fees in a court action between the condominium or the board and the unit owner regarding enforcement of the condominium documents and the unit owner substantially prevails in the action, the following apply:

1. The members of the board of directors who voted on the record to support the court action against the unit owner are personally liable to the association for attorney fees and costs incurred by the association in the action.

2. If there is no record of who voted to support the court action against the unit owner, all of the members of the board of directors are personally liable to the association for attorney fees and costs incurred by the association in the action.

The ‘voice of the people’ must muster against the Constitution – including HOAs

The Ninth Circuit Court of Appeals (CA plus) rejection of the voice of the people, Proposition 8, same sex marriage, demonstrates that acts and votes by the people must stand muster against the Constitution. And that was a majority voice. “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause,” [Judge] Reinhardt said.

CAI— the national, pro-HOA lobbying trade group — and other pro-HOA stalwarts have repeatedly argued that the voice of the people, the members of an HOA, under a private agreement, expressing the alleged voice of the people because they live there, should prevail regardless of the Constitution. Their rationalization is, “better landscaping makes a better America.”

In effect, they ignore and reject the Constitution. In effect they argue for, encourage, promote and incite sedition against the lawful and legitimate government of this country and the states.

The government cannot meet the strict judicial scrutiny for the surrender of private property rights in order to allow current statutes to remain.  Our government cannot claim, “I didn’t know.”  There is no legitimate justification for the denial of the equal application of the laws and due process protections for citizens living in an HOA. Unless, of course, for national security reasons to protect against terrorism.

KY legislators allow HOA private contract to determine public policy

This failed bill reflects the facts of life that HOA private agreements control the public policy for all citizens of a state. Read this simple bill. It is disgraceful!

In Arizona, the Senate debated such unconstitutional powers of private government HOAs over regulating public streets. (See Arizona Senators debate HOA legal status and The power of private HOA contracts, and other “voices of the people”). HOAs have become the second form of local political government in this country, and have been accepted and supported by state legislatures in violation of their oaths to support the US Constitution.

This bill, an emergency bill for a disabled boy who lives in an HOA, whose parents built a play house in their backyard, without HOA permission, was rejected with 6 out of 14 committee members not voting. I believe the KY legislators caved in to the powers of the HOA industry, and. shamefully took no sides. Disgraceful!!

AN ACT relating to the protection of disabled children.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

âSECTION 1. A NEW SECTION OF KRS CHAPTER 382 IS CREATED TO READ AS FOLLOWS:

(1) Any owner of real property used as that person’s actual residence shall have the right to alter or construct on that property any structure reasonably necessary or convenient for the accommodation or therapy of a physically disabled person residing on that property who has not reached the age of majority, provided that the alteration or construction is recommended by a physician for the accommodation or therapy of the disabled person and the alteration or construction does not otherwise violate local, state, or federal law.

(2) The application of any property agreement or provision arising by deed, covenant, servitude, contract, or other instrument or agreement that would limit the rights granted by this section is hereby declared to be contrary to the public policy of the Commonwealth and any attempted application of these provisions in violation of this section shall be void and unenforceable.

âSection 2. This Act shall be known and may be cited as Cooper’s Law.

âSection 3. Whereas the immediate effectuation of the fundamental rights created by this section is necessary to protect the physically disabled children of this state from pending harm and no good cause exists for delay, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.

The power of private HOA contracts, and other “voices of the people”

A scenario, not so hypothetical, and only to emphasize my point.

Suppose a group of ethnic people in a subdivision draft a set of “mother country” laws to govern the community. That among these contractual laws, by virtue of just remaining within the community and not moving out, are covenants that concern the proper treatment of marriage, of women, and of children. Anyone entering into the community is held subject to the community laws and Mother Country punishments. Will this private contract prevail over US law? Why not? HOA contracts do. What’s the difference?

Now suppose a group of homeowners living in an HOA do the same thing? Suppose they argue, as in the Dec. of Indepen., that the HOA government is illegitimate and invalid for various reasons including contract fraud, unconstitutional, and contrary to public policy. That they therefore reject the HOA government. Which contract shall prevail? The Mother County contract or the HOA? Can the HOA claim that their contract is superior to the will of the people in this group, as they have done in turn with civil laws? What’s the difference? Who is right?

Is this country, and your state, under the rule of law or the rule of man?  Where any group can write an agreement to circumvent the US and state constitutions.

Obstacles to substantive HOA reform legislation

What comes out loud and clear, from the Arizona senatorial debate (Arizona Senators debate HOA legal status), as obstacles to substantive HOA reform legislation is the dogmatic belief by many in the righteousness of the HOA legal scheme. That the will of the people shall be allowed to prevail, without restraint of any kind, over the supreme law of the land.

Until advocates can reconcile their belief in the benefits of their HOA with the need for substantive HOA reform legislation, what can they expect of others? And that requires not surrendering to the irrational fear of losing their HOA, as pro-HOA supporters find useful to prevent necessary reforms.

Until advocates are able to get the policy makers, the legislators, to reconcile their belief in the benefits of HOAs with the need to rewrite the HOA legal concept, there will be no substantive reforms. And advocates will return year after year with their “petitions for redress” only to have their petitions “answered only by repeated injury.”

But first, they must look inward, toward themselves.