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?