Tag: local government

CAI is worried about homeowner reasonable expectations

I am confused by two CAI Arizona supreme court briefs in defense of the HOA in CAO v. Dorsey;[i] one by Scott Carpenter and the other by Krupnik,  a former Carpenter attorney and, along with Scott, a member of the CAI attorney’s group, the College of Community Associations Lawyers (CCAL).  In my view dealing with CAI over 23 years in several states, it reflects the awareness by CAI of the potential loss of its dominance over HOA boards and state legislatures.

The CAI Krupnick brief

In Krupnick’s brief, she argues that condos are a creature of state law otherwise they could not exist. We all know that state HOA laws and Acts favor the HOA against member rights.

“Sui generis presents a view of HOAs as private government principalities supported by your state legislature and is used to justify special laws for a special organization, the HOA. But the condominium is a unique form of real property ownership and . . . are created and governed by specific statutory schemes that deal with ownership, administration, transfer, and termination of commonly held property interests. More fundamentally, it is that statutory scheme, not the common law, that frames the issues in this controversy”[ii]

Does that make them state actors —  arms of the state?[iii] Existing constitutional law is inadequate to support this model of local governance [sui generis] and so, in violation of US and state constitutions,  we see all those HOA/PUD/condo “Acts” in almost every state.  These Acts constitute a parallel supreme law of the land with sharp contrasts to the US Constitution.

Krupnik stresses state laws control and “reasonable expectations”[iv] is not involved. “the amendment to A.R.S. § 33-1228 . . . does not significantly impinge on the parties’ reasonable expectations.” Her argument is that it would create problems for the administration of the HOA to have so many grandfathered clauses as the governing documents are amended from time-to-time. Gee, for over 247 years we have lived with the protection of grandfathered clauses in the public domain. What’s the problem?  The fear mongered survival of the HOA and CAI’s member income stream, that’s what!!

In my early days a CAI member emailed me saying: “What are you doing, George? We have a good thing going here.”

The CAI Carpenter brief

I focus on an important aspect of this brief.

Carpenter follows Krupnick’s argument on the need for uniformity, citing a precedent which held that “majority and minority owners alike were subject to a uniform set of rules which were consistent with the parties’ collective expectations at the time of contract.” Adding, “If left unchecked, the Opinion will very quickly leave Arizona community associations struggling to discern which versions of the state’s robust statutory  schemes apply to which owners in their communities.”

Carpenter raises a valid question, one that I concluded with in my commentary on CAO, should the HOA need to ask each owner if he agrees to be bound by  state law? And also asked for agreement to reasonably expected future amendments to forced sale in a takeover scenario. How can one agree to something ill defined?   This is a question to mislead the focus of the lawsuit.  Carpenter ignores contract law that requires a bona fide meeting of the minds and an  understanding of the explicit terms, and any assertion to be bound by iffy amendments in the future is without validity.

Obviously, contract law implicitly raises the question of surprises and a true meeting of the minds. No putting one past the other party in a violation of good faith. We know that there is wide misrepresentation in the selling process!

“By focusing on the amorphous concept of an owners’ reasonable expectations at the time they took title subject to an association’s declaration, the Court of Appeals has ignored an important reality: the statutes which apply to owners and associations must be applied uniformly, unless they contradict a pre-existing express term of the contractual covenants.”

He is arguing that ex post facto HOA amendments are valid, and the constitutional protections  do not apply to private contracts. After all, according to CAI HOAs are sui generis and have their own “constitution” outside the US Constitution. Carpenter makes the anguished plea — my interpretation –

“By creating an untenable and unworkable rule which deeply burdens associations and the owners who comprise them, the Court of Appeals’ Opinion will make it nearly impossible for any future association to effectively terminate their condominium.”

Poor baby! It’s a cost of doing business under the HOA legal scheme, but CAI wants more favorable treatment.  It’s an HOA defect because of the limited number of payees to support the HOA —  the members who are severally and jointly responsible for the viability of the HOA. (If Pete can’t pay, we’ll get it from Joe or Mary who can pay).  Is that a reasonable expectation of members?? I don’t think that have any idea of their financial obligations.

Please note that five other amicus briefs were filed in favor of the homeowner, CAO, including one by the Cato Institute and one by Arizona’s Goldwater Institute.  Only CAI opposed the appellate decision.

Notes

[i] CAO v. Dorsey, CA-CV 21-0275 (Ariz. App. Div.1, 2022).

[ii] Why aren’t HOAs held as state actors based on USSC criteria? (2019).

[iii] Id. The US Supreme Court has held state laws  that are “supportive”, “cooperating,” “encouraging,” and “entwined” in both public policy . . . and in the “management and control” of the HOA create state actors.

[iv] See HOA constitutional “takings” and reasonable amendments.

The HOA legal scheme is ab initio unconstitutional

TO:     Legislative leaders in every state

The HOA legal scheme based on the Homes association Handbook is ab initio unconstitutional

In March 2006 I wrote Christopher Durso, editor of the Community Associations Institute’s (CAI) monthly house organ, Common Ground, asking four questions in regard to the constitutionality of HOA’s  (CID, POA, planned unit development, etc.) legal scheme.  My concern was that CC&Rs are a devise for de facto HOA governments to escape constitutional government as presented in  the 1964 “bible” that brought forth the legal scheme, The Homes Association Handbook. 

Replacing democratic local governments with authoritarian private governments:  Is this good public policy? 

“Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

Here are the four questions:

 1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

3. When did “whatever the people privately contract” dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so (CBTR v. Twin Rivers, 2006). Does “constructive notice,” the “nailing to the wall,” the medieval method of notice, measure to the requisite level of notice and informed consent to permit the loss of Constitutional protections?

4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?

Please respond  to these fundamental questions of HOA constitutionality.

Can and will constitutional scholars reply to 4 HOA questions?

In March 2006 I wrote Christopher Durso, editor of the Community Associations Institute’s (CAI) monthly house organ, Common Ground, asking four questions in regard to the constitutionality of HOA’s  (CID, POA, planned unit development, etc.) legal scheme.  My concern was that CC&Rs are a devise for de facto HOA governments to escape constitutional government as presented in  the 1964 “bible” that brought forth the legal scheme, The Homes Association Handbook. 

As of this date, these questions remain unanswered by CAI, by state legislatures and attorney generals, by constitutional think tanks such as the CATO Institute, the Heritage Foundation, the Federalist Society, and by the many constitutional scholars. Is it because any response would be seen as an attempt to defend the indefensible as it would require a rejection of the Constitution and a recognition of the HOA community secession from the Union.  State governments, including the judiciary, exhibit a willful blindness that makes the Constitution a meaningless piece of paper that can be ignored by private contracts unassailable from government interference.

Replacing democratic local governments with authoritarian private governments: Is this good public policy? “Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

Here are the four questions:

 1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

3. When did “whatever the people privately contract” dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so (CBTR v. Twin Rivers, 2006). Does “constructive notice,” the “nailing to the wall,” the medieval method of notice, measure to the requisite level of notice and informed consent to permit the loss of Constitutional protections?

4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?

Once again  I await their replies.

Cc:  HOA Constitutional Government

Law review on CC&Rs constitutionality – part 1

While the title of the Ken Stahl Pepperdine Law Review article[1] addresses the “validity of private deed restrictions” (CC&Rs) and “an unconstitutional taking” (eminent domain) with respect to affordable housing, Stahl’s investigation covers many of the HOA constitutionality concerns that I’ve raised over the years. He warns about legislative “overrides” – statutes that impinge on CC&Rs – and the balance of governmental powers between the state/county and private, contractual governments.

While the article is focused on California’s dealing with its affordable housing crisis, my annotations are questions focusing on the constitutionality of the  HOA CC&Rs. The article covers a lot of ground – 55 pages of legalese — and so I will make several commentaries or, in this case, research memoranda. Starting at the beginning, the Abstract and Introduction materials, Professor Stahl speaks to:

  • California legislature invalidating CC&Rs. We  are aware of statutes regulating what HOAs can and cannot do on things like “pets, clotheslines,  signs and flags” but the legislature is going a bit further in regard to local zoning, home rule statutes, and “overriding” many covenants in the interest of affordable housing. 
  • “The doctrine of “home rule” that places some outer limits on the ability of state legislatures to preempt local regulatory power.”
  • Home rule statutes exist in all states that allow a high degree of community independence from state/legislative interference on local matters.  The HOA scheme avoided these statutes that would provide all the current benefits but subject the HOA to the Constitution – HOA could not hide behind “not us, we are private” nonsense.
  • This overriding is facing concerns of the state “taking” of property rights that HOA members agreed to under a private contract. This invokes eminent domain concerns of just compensation as I have raised with respect to the questionable HOA contract’s taking of a member’s property rights.
  • All fifty states have detailed legislation regarding the governance and management of HOAs, including voting rules, budgeting, disclosure, and so forth, and a few states authorize state agencies to regulate HOAs.
  • “HOAs are ubiquitous, vastly outnumbering local governments, and they act essentially as little municipalities, taxing residents through mandatory assessments and regulating land use with detailed restrictions, called “covenants, conditions, and restrictions” (CCRs), that often mirror local land use regulations. Indeed, CCRs are typically far more restrictive than local land use regulations in many respects.”  There you have it, almost like McKenzie’s words in his 1994 Privatopia [2].
  • The question of quasi-government HOAs is expressed  as “the HOA is “simply a convenient mechanism to enforce those rights.”  Recall my charge that “HOAs are a devise to circumvent the Constitution.” The rights in context above refer to “the extension of the property rights” imposed by the CC&Rs.
  • “In contrast to the local government, which is considered a public body within the quasi-federal structure of state government, the HOA is generally considered a private entity, an extension of the property rights of homeowners.”
  • The author is concerned about the aggressive nature of the California legislature in regulating and controlling HOAs, far beyond their previous involvements. They deal with “what HOAs are really about: the ability to strictly control the character of the community by excluding undesirable uses of property within the community.
  • The controversial issue of consent to be governed or agreed to be bound does not escape Stahl’s view. “Homeowners are presumed to voluntarily subject themselves to CCRs when they choose to purchase property.” He makes the strong point that public policy  “causes courts to treat them as formally private, in contrast to the coercive nature of land use regulations enacted by public municipalities.”  This is a reference to the balance of power between the  state and supposedly freely agreed to expression of homeowners, the CC&Rs.
  • The mantra of CAI and legislators – You agreed to be bound! I witnessed an AZ legislator condemn a homeowner speaker that he was trying to get out of a contract that the speaker discovered was bad and he wasn’t going to be a part of it. A deal is a deal!
  • The author believes that the newer  legislative overrides will be constitutionally challenged,  arguing “ that overrides are likely to be upheld against constitutional challenges except in very unusual circumstances.”  In other words, Stahl seems to be saying that advocates can look to favorable legislation regarding due process and the equal protection of the laws for homeowners. He has already made favorable arguments in his journal article that simply need to be focused on justice and homeowner rights than just affordable housing.

I plan  at least  2 additional commentaries concerning this article following its structure: the role of equitable servitudes (covenants) and CC&Rs, and  constitutional concerns.

Acknowledgement

I would like to thank Barbara Lorraine-Johnston  for bringing this law review article discussing many of the constitutional issues that I have repeatedly argued and commented on over the years.  The importance of advocates bringing events, court cases, statutes, papers, articles, and law journal publications cannot be overstated. I can only comment on what comes to my attention.

For additional information, visit my comments, some 1,314 since 2004, can be found at HOA Constitutional Government.  Become a Subscriber to receive automatic updates.

NOTES

[1] “The Power of State Legislatures to Invalidate Private Deed Restrictions: Is It an Unconstitutional Taking?” (pepperdine.edu). (50 Pepp. L. Rev. 579 (2023)). Kenneth Stahl is a Professor of Law and the director of the Environmental, Land Use, and Real Estate Law program at Chapman University Fowler School of Law.

[2] Evan McKenzie, Privatopia: Homeowners Associations  and the Rise of Residential Private Government (1994) and Beyond Privatopia (2012)).

HOA defect: volunteers & boards of directors

There is a serious defect in the HOA model of local governance based on a private contract that requires a board of directors to manage the association through the use of unpaid volunteers. It seems as though the framers ignored the old truism: you get what you paid for. Now don’t get me wrong, there are qualified directors and those with an honest belief in volunteering and pitching in to make their HOA a better place. But the legal structure to often prevents them having any real impact. A topic to be addressed elsewhere at another time.

The framers of the model were well aware that to ask homeowner/members to fork up assessments that included director/officer salaries or compensation would never fly. It would not even fly today. Recourse then was made to the utopian concept, the private commune, where everybody chipped in and did what they were capable for the benefit of the commune. And that required individuals who believed in the model to volunteer their time. Without this above and beyond call for volunteers the mass merchandising of HOAs would have failed.

In order to explain my opinion, I must take members back to 1964 and the framing of The Homes Association Handbook that became the HOA declaration of CC&Rs “bible.”  All HOA declarations flow from this Handbook and constitute the vast boilerplate found in all CC&Rs over the past 58 years.

This topic was addressed in the Handbook. And since the growth in size of HOAs led to incorporation of the associations, the need for a board of directors was mandatory and a solid and necessary requirement. The answer was solved, they thought, by unpaid volunteerism. Further reaching out in order to make the HOA legal scheme work, the demand for involvement in the affairs of the HOA, especially for directors, ran against the national data on citizen involvement in government. (Just check the number of voters in presidential elections as a percent, not of registered voters, but of voter age people, shows on average a 35% turnout.)

As it has become apparent, many HOAs have resorted to “conscripting” members just to sit on the board to meet the statutory and governing document requirements. They are generally YES men, going along with the power clique or president’s wishes. This has led to anyone, qualified or not, to get him on the board.