CAI flexes its muscle in Congress arguing constitutional law and judicial review

With respect to the federal Amateur Radio Parity Act of 2015, S 1685/HR 1301 (HAM operators), the national lobbying organization, Community Association Institute (CAI), seeks to assert that the private contractual HOA CC&Rs are constitutionally protected from government contract infringement. CAI CEO Skiba argues that there is no compelling government interest to allow contract infringement and that the province for HOA regulation lies at the state level.[1]  This is a first for CAI!

It shows that it understands what I’ve been writing about: that the surrender and waiver of constitutional rights in HOA-Land must pass judicial scrutiny although the courts have gotten around this legal requirement.[2]  Here, for the first time that I’m aware, CAI argues that the Amateur Radio Act fails to pass judicial scrutiny because there is no compelling and necessary government interest for the law.[3]

As I wrote the sponsors of these bills,

State laws are pro-HOA, and the states have abdicated their obligations to protect the individual rights of citizens. State legislatures are strongly influenced by the special interest lobbyists headed by CAI.

I explained that the attitudes, views, and conduct of CAI demonstrate the dual façade, the two-faced voice of CAI, that now shouts for constitutional protections against the bill.

CAI gives the false impression that HOAs are democratic and offer the same protections of individual rights as found in the public domain. This is grossly untrue. You will not find fair election laws in HOAs, nor effective due process hearings for violations, nor penalties against the HOA officers and directors for violations of the law and contractual obligations as found in the public domain, nor the right to member initiatives, nor the conditions for a valid surrender of one’s rights and freedoms. All of which would be necessary for a just and fair legitimate democratic government.

CAI would also have you believe that HOA CC&Rs, which are binding sight unseen by means of constructive notice, are sufficient for the surrender of fundamental rights.

I further wrote that “protecting an invalid contract would make a mockery of the Constitution.

With respect to CAI itself, I informed the sponsors that,

“CAI comes with unclean hands. . . . Operating as a monopoly, CAI indoctrinates the public at large, public officials, the media, and homebuyers into its view of the HOA industry.  This indoctrination creates a common core of beliefs and attitudes, and establishes CAI as a national shadow government, a private entity, that has not been delegated such powers and authority by Congress.”[4]

I explained that CAI’s opposition to the bill is based in its argument that private entity HOAs need not be subject to the Constitution or the laws of the land. [And that] the 14th Amendment does not apply to these private governments.”

I added that, “Furthermore, CAI resists the intrusion of government into its shadow government arena and dominance of HOA-Land.”

 

Notes

[1] See, Statement For the Record  H.R. 1301 The Amateur Radio Parity Act 2015 , House Energy and Commerce Committee, Jan. 12, 2016, Thomas M. Skiba, CAI CEO; see also, Will the real CAI standup: its contradictory beliefs, pronouncements and goals.

[2] The courts have upheld free speech surrenders and other implicit surrender of rights on the basis of a general government interest, and not applying strict scrutiny review.  The courts presumed genuine consent to be bound was present, or the application of constructive notice – no need to see or sign the CC&Rs to be bound – as controlling. The question of violations of the 14th Amendment “due process” and “equal protection of the law” requirements were not considered.

[3]Are the means [the statute] narrowly tailored to accomplish a compelling governmental objective? (narrowly tailored – the means are necessary and there are no equally effective less restrictive alternative means available to accomplish the objective) (sometimes the word necessary is used instead of narrowly tailored, but in the context of strict scrutiny they mean the same thing).

Standards of Review web page, (http://www.wneclaw.com/conlaw/standardsofreview.html).

[4] This one-sided, personal agenda becomes obvious when CAI has failed to adopt a poll based on the Truth in HOAs Disclosure Agreement, and in general, does not include in its education programs the topics contained in HOA Common Sense: rejecting private government.

Published in: on February 3, 2016 at 10:56 am  Comments (5)  

AZ SB 1088 is an unconstitutional and selective impairment of a contract bill

Arizona’s SB 1088 bill seeks to invalidate CC&Rs that require approval by a homeowner to allow any visitor access to the homeowner.  It specifically deals with — and is only meaningful with respect to gated communities which are gated for a very good reason — not hindering process servers access to a homeowner defendant.  It is punitive with a $250 “civil penalty” for anyone violating this law.

Background 

Under our laws and judicial system a plaintiff must service notice of a lawsuit upon a defendant as required by the Constitution.[1]  It is well known that there are people who act to avoid being served notice, which stops any lawsuit from moving forward. However, the law does allow for posting the summons notice to the public notices page of a newspaper in the event the defendant cannot be personally contacted.[2]

Impairing the obligation of contracts

The proponents’ argument would be generally along the lines that “due process under the law” triumphs over any contract infringement violation as a matter of public policy and for the general good of the people. An HOA covenant cannot hinder constitutional due process of law and the equal application of the law to a person, not necessarily an HOA, who is suing a defendant in such an HOA.  It’s not fair they would cry, referring to the greater good served outside the HOA.

But, the bill seems to be unnecessary as there are other means to satisfy civil procedure process servers.  It would also not pass judicial scrutiny[3] required to deny constitutional rights under contract infringement.  The bill seems to be sponsored as a request from a constituent facing some problem that lacks merit, considering the alternative methods available for service notice by process servers.

Selective enforcement of the law

It is long held doctrine that a government cannot pick and choose what laws to enforce or to ignore, and still be seen as a legitimate government.  The entirety of the covenants in a declaration of CC&Rs — allegedly constituting the voice of the people in a private contract to not be bound by the Constitution and the laws of the land — contains many, many covenants that violate the protected rights of the people.

Yet the state stands idly by and does nothing to end these private contractual violations of the constitution’s requirement for the equal protection of the law.  The CC&Rs are a mockery of due process protections, of fair elections, of eminent domain protections, of cruel and unusual punishment by foreclosure rights, of contract law misrepresentation and full disclosure violations, of the failure to provide civil penalties against HOA violations of the law, etc.

They are either ignored or have the “blessings” of the legislature as a result of laws that coerce compliance with the HOA, cooperate with the HOA, or closely interact with the day-to-day operations of the HOA. Any of which would make the HOA a state actor subject to the Constitution.

SB 1088 is a selective impairment of contract obligations while other infringements of the laws are allowed to stand. Adopting this bill would be a mockery of the law.

 

References

[1] 14th Amendment, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.”

[2] Ariz. R. Civ. P., 4.1(n). “Where the person being served . . . has avoided service of process . . . then service may be by publication  . . . . “ Also, Rule 4.1(m) allows for “alternative or substituted service.”

[3] Judicial scrutiny relating to constitutional rights requires a compelling and necessary government interest, not a general government interest, to deny protected rights.  See, in general, Arizona’s HB 2382 is an unconstitutional violation of eminent domain law.

Published in: on January 27, 2016 at 4:58 pm  Comments (1)  
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Arizona’s HB 2382 is an unconstitutional violation of eminent domain law

HB 2382[1] deals with valid association covenants and amendments.  The section dealing with valid covenants is severely lacking in homeowner protections, but the section dealing with amendments has substantive, positive reforms, which should be applied to covenants under ARS 33-440. Please bear in mind that Article II, Section 2 of the Arizona Constitution affirms the state’s obligation to defend individual rights. “[G]overnments . . . are established to protect and maintain individual rights.”

Amendments

On the positive side, HB 2382 contains additions to ARS 33-440 (subsection C), and PUD law in ARS 33-1817 (new subsection A), but not condo law. It addresses an aspect of consent of the governed[2].  Under the above subsections, paragraphs 1 and 2 are of interest.

Paragraph (2)(b) requires the actual consent of the affected homeowners, which opens up a bona fide exchange that is satisfactory to the affected homeowners.The amendment receives the affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies.” In short, they can reject the amendment or demand payment from the HOA. However, it applies only to instances where less than all the members are affected by the covenant.

Paragraph (1) provides the right of the board or of a homeowner to propose an amendment provided he obtains the requisite number of votes for a valid amendment. This subsection appears to allow for no board involvement in the amendment process. The “reformer” only needs to get the required valid votes and file a document with the county clerk affirming compliance with the law and CC&Rs.

Still, the vote of affected, non-consenting homeowners is not required and constitutes a private government eminent domain[3] taking.

While this is a major advance for substantive reforms that bring the HOA closer to the same constitutional restrictions and prohibitions as are public entities, unless (2)(b) is made part of paragraph (1), it still is a private government “eminent domain” taking without compensation.

 Covenants

Relating to covenants, upon a close reading of 33-440(A)(2), which has been law since September 26, 2008, the above changes appear to be redundant and not necessary, because in order to be a valid covenant the consent of “the owner of real property affected” by the covenant is required.  This paragraph renders the proposed changes to the HOA amendment process to be unnecessary. It is binding whether or not the covenant affects only some of the members. It applies to existing covenants existing declarations and in any new HOA declaration as well as to amendments.

This law, section 33-440, has been ignored by attorneys for homeowners and, as expected, by HOA attorneys for over 7 years!  I have not seen this law raised in the courts in Arizona.

Could it be because paragraph (A)(3) renders the entire law meaningless as it defines “consent” as set forth by the CC&Rs procedures, which, as we all know, do not require the consent of any affected property owner? They require a specified vote of consent by the members without regard to the consent of affected members. It also broadly presumes that each new purchaser has agreed to the surrender of his private property rights to the whims of other members as set forth in the CC&Rs amendment covenant.

(A test of the weak argument that members have openly and knowingly agreed to be bound at the time of purchase, or now have agreed to be bound, which the leading national pro-HOA lobbying organization, CAI, has failed to adopt, is a poll based on the Truth in HOAs Disclosure Agreement [4].)

These boiler plate CC&Rs amendment procedures, themselves, also constitute an unconstitutional surrender or waiver of property rights that will not pass judicial scrutiny.  Judicial scrutiny relating to constitutional rights requires a compelling and necessary government interest, not a general government interest, to deny protected rights.[5]

Take, as an example of the government’s interest, the defensive arguments that HOAs are justified because they 1) maintain property values and 2) lower municipal costs due to private funding of infrastructure. Are there alternative methods or approaches that can effectively accomplish these goals without a loss of rights?  I think we all would agree that the answer to this question is “Yes.”  These widely accepted government interests cannot be just a preference over other alternatives.

CC&Rs permit HOAs to ignore constitutional protections

I believe that this bill, with all the good intentions of its sponsor, provides an excellent example in support of the argument that these private declarations of CC&Rs are a devise to bypass constitutional protections of the rights of citizens.[6] Paragraph (A)(3) of 33-440 is an unconstitutional statutory violation of the private property rights of citizens living in HOAs. It permits the HOA to alter your CC&Rs “contract” at the time of purchase and remove your rights without compensation.  It’s not the American way!

The most shameful example of this taking involved a homeowner who paid a premium price of some $50,000 for a golf course view that was protected by the CC&Rs from neighbors infringing upon that view. This did not stop the board from amending the CC&Rs to remove that restriction, which allowed a neighbor to so obstruct the golf course view by planting large trees.  The affected homeowner was not compensated for his contractual loss of property rights.

HB 2382 recommended revisions

For the reasons given above, this bill must be amended by deleting 33-440(A)(3) in its entirety, and to include only the proposed amendment subsection with the addition of 1) “notwithstanding any provision in the declaration” and 2) the proposed changes to the HOA amendment process in paragraphs (1) and (2) be deleted in their entirety, substituting the following:

“1. THE DECLARATION MAY BE AMENDED BY THE ASSOCIATION OR AN OWNER OF PROPERTY THAT IS SUBJECT TO THE DECLARATION BY

(a) AN AFFIRMATIVE VOTE OR WRITTEN CONSENT OF THE NUMBER OF ELIGIBLE VOTERS AS PRESCRIBED IN THE DECLARATION, AND

(b) AN AFFIRMATIVE VOTE OR WRITTEN CONSENT OF ALL OF THE AFFECTED OWNERS OF THE LOTS OR PROPERTY TO WHICH THE AMENDMENT APPLIES.”

The legislature cannot allow HOA private covenants to serve to override constitutional law and to bypass constitutional protections of fundamental rights and freedoms of the good citizens living in HOAs.  It must not!

 

References

[1] http://www.azleg.gov/legtext/52leg/2r/bills/hb2382p.pdf.

[2] See HOA Common Sense: rejecting private government, Consent of the governed, No.4.

[3] The 5th Amendment clearly states, “nor shall private property be taken for public use without just compensation”; Section 1 of the 14th Amendment clearly states, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” (My emphasis).

[4] Truth in HOAs Disclosure Agreement; Homeowner Association Consent to be Governed Agreement model Act (“Truth in HOAs Act”).

[5] “Are the means [the statute] narrowly tailored to accomplish a compelling governmental objective? (narrowly tailored – the means are necessary and there are no equally effective less restrictive alternative means available to accomplish the objective) (sometimes the word necessary is used instead of narrowly tailored, but in the context of strict scrutiny they mean the same thing).” Standards of Review web page, (http://www.wneclaw.com/conlaw/standardsofreview.html.)

[6] See CC&Rs are a devise for de facto HOA governments to escape constitutional government and HOAs violate local home rule doctrine and are outlaw governments.

Published in: on January 23, 2016 at 9:45 am  Comments (4)  

HOA acts against secretary of state

On the lighter side — #MadamSecretary #TeaLeoni – last night’s Madam Secretary TV episode had Madam Secretary’s ”neighbors,” read “HOA,” serving notice of serious violations: security detail was disruptive, running their car engines all night, as required by protocol, was annoying, people coming and going and  parade of tourists disturbed the peace and tranquility of the community.  The HOA threatened a law suit that included a demand that Madam Secretary to move out.

In an act of good faith, the HOA was invited into her home to discuss the concerns of her neighbors, at which these serious concerns were voiced.  Not being able to appear due to an issue of international importance, her husband tongue lashes the neighbors for their pettiness and narrow-minded views, and throws them out.

However, upon the return of Madam Secretary, with another act of goodwill, she must call the President to order the security detail to turn off their engines, at least for that night.

The issue remained unresolved at the end of the episode.

 

I wonder how the court would deal with such a predicament. Consider that on Jan. 11, 2016,

The 9th U.S. Circuit Court of Appeals ruled a portion of a federal law making it a crime to wear an unearned military medal is unconstitutional and violates an individual’s right to free speech.  “Suppressing a symbolic communication threatens the same First Amendment harm as suppressing a written communication,” Judge Sandra Ikuta wrote in the majority opinion. “Wearing a medal has no purpose other than to communicate a message.”  (US v. Swisher, App. 9th Cir, No. 11-35796).

This ruling was held in spite of the purpose of military valor medals signifying “that the recipient has served the military efforts of the United States with valor, exceptional duty, or achievement worthy of commendation.”

This overriding attachment to protecting free speech, regardless, is leading to the decay and disorder within our society. It reflects a bias by the courts favoring the passions of the people, which would eventually lead to chaos followed by dictatorship to restore order.  History would repeat itself, even here in America.

Published in: on January 18, 2016 at 8:42 am  Comments (3)  
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Why aren’t HOA property managers held strictly accountable as are real estate property managers?

CCHAL[1] reports that “The California Bureau of Real Estate (BRE) is taking enforcement actions against M & C Management, one of the largest managers of homeowner associations in California.”[2]  Readers should understand that the suit is not based on HOA (CID) law violations but on real estate law violations.  HOA property managers are not held to the same strict real estate property manager requirements. WHY NOT?

Real estate property managers are held to strict procedures and accountability, especially in regard to money matters, as this complaint reflects.  Real estate brokers, the person in charge under which real estate agents must be licensed, must deposit buyer down payments within 72 hours, must maintain separate banks accounts, etc. and are subject to random audits by the real estate department.  Penalties are severe. Why are HOA managers getting a free ride, especially when they hold assessments, “trust money,” for hundreds or thousands of homeowners?

None of the state HOA manager licensing laws come close to requiring strict money accountability or strict enforcement in general as required of property managers. Yet, many states see no evil and turn to the special interests managers to train other managers and board members.  Or is it more accurate to say “indoctrinate” these parties, including state legislators.

When state legislatures ignore the 14th Amendment protections of due process and the equal protection of the laws, the people lose.  When the National Association of Realtors (NAR, which is a business trade group supporting its member agents) fails to demand that HOA property managers be licensed and held accountable as are real estate property managers, which you would think would be in their best interest, the people lose.

When HOA reform legislation fails to demand changes on the basis of constitutional protections, the people lose. When brave homeowners fail to raise constitutional issues when in court using competent lawyers, the people lose.

 

References

[1] Center for California Homeowner Association Law (CCHAL) (http://www.calhomelaw.org/).

[2] Id, CCHAL Newsbrief email. (1.9.2016).

Published in: on January 10, 2016 at 8:49 am  Comments (1)  
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