Tag: statutes

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.

HOA Homestead Exemption Exclusion (SB1470)

`Please pass SB 1470, homestead protection for the people.

History of Homestead Exemption HOA Exclusion (SB1470)

In 2004 ARS 33-1806(3)(h) was added to the mandatory disclosure requirements, requiring a buyer to sign an acknowledgment that he agrees to the loss of his homestead exemption (now $400,000). Just one year later, in 2005, the statute was again amended to remove any reference to the loss of the homestead exemption.  In 2007 Governor Napolitano vetoed the homestead exemption bill on a flimsy argument – to many subjects.

Today, ADRE (real estate dept)  still does not inform consumers of the loss of their homestead exemption.

In 2007 I wrote, in part,

“They [CAI] raise the issue of a consensual agreement, the unsigned CC&R ‘agreement,’ which, under Arizona statutes, is an exception to the application of the homestead protection.  The author of the S/E amendment to the bill, Representative Farnsworth, made quite clear that ARS33-1807(A), which opens with, ‘The association has a lien . . . .’ (emphasis added), is a statutory lien and not a consensual lien – the homeowner has no choice in the matter whatsoever. 

“Any reference to a consensual lien must come from a voluntarily entered agreement, and, not from a statute. Our concern here is the alleged CC&Rs consensual agreement that may contain a provision for an agreement to a lien for unpaid assessments and the right to foreclose.  No CC&R that I have been made aware of mentions a surrender or a consent to the loss of the homestead exemption.  No real estate purchase agreement that I am aware of mentions an agreement to surrender the homestead exemption. The CC&Rs have been held as binding, not as a consensual agreement per se, but by the application of the doctrine of constructive notice, or the simple posting to the county clerk’s office.” 

This is the Legislature’s second chance to restore the equal protection of the laws to homeowners in HOAs. There is no justification for denying homestead protection when.

Resources

ARS Title 33, -Ch. 8

 33 – 1101. A. Any person the age of eighteen or over, married, or single, who resides within the state may hold as a homestead exempt from attachment, execution and forced sale, not exceeding $400,000 in value, any one of the following:

1. The person’s interest in real property in one compact body upon which exists a dwelling house in which the person resides.

2. The person’s interest in one condominium or cooperative in which the person resides.

33-1103. Homestead exemption; extent of exemption; exceptions

A. Real property that is subject to the homestead exemption provided for in section 33-1101, subsection A is exempt from involuntary sale under a judgment or lien, except in connection with:

1. A consensual lien, including a mortgage or deed of trust, or contract of conveyance.

33- 1256; 33 – 1807. A. The association has a lien on a unit for any assessment levied 14 against that unit from the time the assessment becomes due.

SB1470 (Feb. 13, 2023)

C. Subsection B of this section does not affect the priority of

10 mechanics’ or materialmen’s liens or the priority of liens for other

11 assessments made by the association The lien under this section is not

12 subject to chapter 8 of this title.

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).

Colorado HB 1200 needs your active support

Colorado’s HB 1200,[i] brought to my attention by journalist Ruthy Wexler, is an outstanding bill that provides for the long ignored, not my job, state oversight of HOA violations. It is a measure that provides the constitutional protections against depriving “a person of property without due process of law” and against denying “the equal protection of the laws.” These protections have been denied by the HOA “constitution,” its CC&Rs. Although a private contract, these protections cannot be waived.

HB 1200 is a much more protective bill of homeowner rights and freedoms as was introduced in Arizona in 2006 and adopted in the face of stringent opposition by CAI. CAI then proceeded in 3 court cases over 4 years to have the statute declared unconstitutional and have the ruling applied to all Arizona HOAs. It almost won but the Arizona Supreme Court denied it precedent value and in 2011 the statute was amended to handle CAI’s claims of unconstitutionality. It is in operation today under Arizona’s real estate department.

I was actively involved in the creation of this Office of Admin. Hearings adjudication of HOA disputes and in the defense of its constitutionality.[ii]

The role of CAI, as presented above, should not be taken lightly. Strong and active homeowner support will be necessary to carry this bill to law. I commented on former Colorado Senate President Morgan Carroll’s book:

Yes, there have been champions of HOA reform, but advocates fail to realize that these legislators must buck the powers that be at the legislature and win over the votes of a majority of other legislators. And this takes outcries by many people, not with gripes of “I wuz wronged!” but with valid arguments as to why HOAs are wrong for the state and the general public well-being.  And how to fix  these wrongs.[iii]

Take heed Coloradans and get behind the sponsors today!

Notes

[i] HB 1200.

[ii] See AZ Supreme Court accepts advocate’s amicus brief in challenge to HOA statute.

[iii] See Why HOA reform advocates fail at legislative reforms (2011).

Authorities for protected HOA political speech — SB 1412 poll

In regard to Arizona’s SB 1412 seeking free political speech with regard to HOA governance issues, please see the following Commentaries containing relevant court opinions and California bill, SB 323, passed into law last year. Don’t forget about the important references — endnotes — found in these Commentaries.

Take the HOA public issues poll in confidence. Complete privacy. I don’t get name or email address, so take the poll today!

  1. Political free speech both without and within the HOA (2018).
  2. NJ Supreme Court upholds constitution against HOA free speech electioneering violations (2014).
  3. CA SB323 a model on fair elections for all states (2019).
  4. courts hold HOAs as political second governments with public issues (2009).
  5. Protecting HOA political free speech on matters of general community interest (2015). Applies anti-slapp laws protecting HOA free speech.