Defending the Constitution: VA, yes; AZ, no

With the removal of the statutory imposed right of an HOA to fine members from Virginia’s  HB 791, the VA legislature demonstrated that it stood behind the separation of powers doctrine of the US and VA constitutions.

I had written VA Rep. Suorvell and Senator Petersen, who opposed the bill as it was written, about the Virginia Supreme Court’s findings in Gillman v. Unit Owners, which said HOA fines were unconstitutional.

In Gillman the Virginia Supreme Court held,

We do not agree that it was ever the intent of the General Assembly of Virginia that the owners of units in a condominium be a completely autonomous body, or that such would be permitted under the federal and state constitutions. Admittedly, the Act is designed to and does permit the exercise of wide powers by an association of unit owners. However, these powers are limited by general law and by the Condominium Act itself.

The imposition of a fine is a governmental power. The sovereign cannot be preempted of this power, and the power cannot be delegated or exercised other than in accordance with the provisions of the Constitutions of the United States and of Virginia. Neither can a fine be imposed disguised as an assessment. . . . We think it clear that the Gillmans were being punished, not assessed, and hold the action of the Association to have been impermissible.

 And very importantly from a constitutional point of view (my emphasis), “A condominium restriction or limitation, reasonably related to a legitimate purpose, does not inherently violate a fundamental right and may be enforced if it serves a legitimate purpose and is reasonably applied.”

Sadly, the Arizona Legislature is still trying to pass for a 4th and 5th time (two versions of last year’s trice defeated HB 2371/SB 1454).  It would allow unlicensed and untrained HOA property managers to represent HOAs in small claims court and in administrative hearings;  but not allow the homeowner a third-party representative, violating the equal application of the laws and no special laws for special groups provisions of the US and AZ  constitutions.

What is the legitimate AZ government purpose to selectively deny homeowner equal representation?  Does it reasonably promote good public policy?

Published in: on March 7, 2014 at 3:35 pm  Comments (7)  
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rate of growth of HOAs declines sharply nationwide

pop-hoaHere is one statistic that the CAI 2012 survey failed to mention.  The stats are from CAI’s “industry Data” and US census.  Graph shows % US population living in HOAs.  The period of 2004 – 2006 was the beginnings of the Enlightenment Period during which the statutory HOA disclosures were shown to be biased, incomplete, and misleading, and during which the Truth in HOAs began being publicized.

The biennial rate of growth from 2004 to 2012 decreases from 1.4% to .15%

2004 –6        1.4%

2006 –8          .46%

2098 – 10       .49%

2010 – 12        .15%

It seems that the advocates’ The Homeowners of HOA-Land media stories have had an effect on the public. The continued pro-HOA special interest (aka HOA Stakeholders) dominance of state legislatures will only accelerate a sharper decline, especially as they react with ‘get tough’ vehemence. State legislatures can no longer bury their heads in the sand with  a “we didn’t know” attitude and continue to support the misguided virtues of oppressive HOA private governments.

Published in: on March 3, 2014 at 2:51 pm  Comments (5)  

HOA SB 1454 progeny: passing SB 1482/HB 2695 would be an act of tyranny by the AZ Legislature

“The tyranny of the legislature is really the danger most to be feared.”  Thomas Jefferson

Summary

  1. HOA mirror omnibus bills, SB 1482 and HB 2695, — while there are some concessions to those concerned with criminal activities — are materially the trice defeated HB 1454/HB 2371 bills of last session. They leave statutes declared unconstitutional on the ARS books regardless of pass or not-pass. The public is thereby being deceived as to the validity of ARS, which continues to report unconstitutional statutes.

  2. The log-rolling, something for every HOA special interest, aka HOA stakeholder, includes a separation of powers issue with respect to amendments to the Supreme Court UPL rules, Rule 31. Petition for rule change, R13-0041, to allow exceptions for HOA manager representation of HOAs was withdrawn last year upon the unconstitutionality decision. The 2011 request, R11-0001, which contained the same exception for HOA manager representation, was rejected by the Supreme Court.

  3. The cooperation with the HOA stakeholders, the 800-pound gorilla, by the bills’ sponsors and the passage by their committees is iconic of the tyranny of the legislature under the extreme dominance of HOA special interests.

sen_Gov gorilla

HOA omnibus SB 1454/HB 2371 redux

The Arizona Legislature would be making a strong statement this 2014 session: no one challenges the Legislature, itself, and a legislator, of intentionally violating the Arizona Constitution — and wins in court.[1] There are two mirror bills, SB 1482, Senator Griffin again, and HB 2695, Representative Ugenti again, that are a resurrected HB2371 from the last session. HB 2371 was a bill that twice failed, but was snuck into and unconstitutionally attached to SB1454[2] in the closing hours of last year’s session  — an omnibus bill having something for all special interest HOA stakeholders. 

Rep. Ugenti’s opening statement on HB 2371, before Senator Griffin’s committee, stated that she combined all those bills,

Working through a stakeholder process and allowing the stakeholder process to filter the proposed legislation   . . . representing a consensus from the AZ realtors, and AACM [AZ Association of Community Managers, the beneficiary of this bill]. . . . I do feel responsible to the many stakeholders and representatives in the bill.   [Homeowners were not included among the “stakeholders.”] 

 

No choice to repeal statutes found unconstitutional

These statutes were declared unconstitutional by agreement with the AG, representing the Legislature, and an order by the court accepting the settlement agreement.  However, the Arizona Revised Statutes (ARS) still shows these statutes as if they were valid and enforceable laws, which is deceptive to the public accessing the official Legislature’s website, ALIS. There are no annotations to advise the public otherwise.  

The repeal of these unconstitutional statutes is conditioned upon bill approval. A failure to pass both bills will still leave these statutes on the books. There is no stand-alone bill that repeals these unconstitutional statutes as would be expected by a legitimate legislature acting with integrity as representatives of the people, and not as representatives of the special interests. Apparently the defiant eight-hundred pound gorilla, the special interest HOA stakeholders (CAI, AAR, AACM and AHBA)[3]  has flexed its muscle, and the sponsor has reacted accordingly. 

Grant of unconscionable special powers to HOA managers

As to the  content of the amendments, it is inexcusable that these bills would bless willful violations of UPL as uncovered by the Arizona Supreme Court’s action against AAM, LLC[4], a CAI and AACM member HOA management firm. Among its findings of numerous UPL violations, the court added (my emphasis), The Board would add AAM also should have known better than to let its certified legal document preparer employees perform in a representation function in violation of Rule 31 and ACJA 7-208(1).”  It seems that AACM forgot about the rejection in 2011 of a request for HOA manager representation, R11-0001. Its conduct in 2012 can be seen as a direct flaunting of the laws of the State of Arizona.

The bill offers no justification for the special treatment of HOA managers to allow them to represent HOAs without any licensing or training in spite of the numerous violations revealed by the AAM findings.  The Court action followed upon the March 2012 State Bar UPL Opinion, 12-01,[5] in which six questions pertaining to HOA manager conduct were addressed. Question 6:May CAM [community association manager] personnel negotiate legal matters on behalf of the Association with Association members?”  The answer: NO!  Not even licensed and educated Certified Legal Document Preparers can!

Machiavelli wrote: “Because the [right] to rule is rather the appearance of justice rather than justice itself, the appearance of injustice defeats every [right] to rule.”  Unlike SB 1062 where the public is genuinely divided, these bills are the special agendas of the HOA stakeholders alone, and not of the people. Because the sponsors chose an omnibus approach to log-rolling yes-votes for acceptance, rather than to allow free choice on each issue, these bills must be defeated.

I sincerely hope that the Arizona Legislature finally stands up to the 800-pound gorilla, the HOA stakeholders, and does the right thing:  not allowing these bills to become law and to repeal the unconstitutional statutes of Ch. 254 (2013).

 

References


[3] CAI – Community Associations Institute; AAR – Arizona Association of Realtors; AACM – Arizona Association of Community Managers; AHBA – Arizona Home Builders Association.

[4]In re: Certified Legal Document Preparer v. AAM, LLC, No. LDP-NFC-09-L094, LDP-NFC-10-L026, p. 4 (May 24, 2012). Not available online at Supreme Court, but copy at http://pvtgov.org/pvtgov/downloads/upl12-01.pdf.

Published in: on February 25, 2014 at 1:53 pm  Comments (4)  

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.

Published in: on February 22, 2014 at 1:19 pm  Comments (5)  
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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.

Published in: on February 12, 2014 at 8:29 am  Comments (1)  
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