SB1330: Reflecting Fundamental Principles of the Arizona Constitution

The Arizona bill, SB1330, will restore the homestead exemption to homeowners living in planned communities, taken away in an unconstitutional law in 1996 promoted by the special interests lead by the Community Associations Institute*.  ARS 33-1807(C), with its harmless looking wording, The lien under this section is not subject to chapter 8 of this title”, striped homeowners of rights granted to all homeowners. No government interest whatsoever was stated to justify the creation of a second class of citizen who is denied their rights under the Arizona Constitution.

 

 By the denial of the homestead protection to homeowners living in planned communities, which are private organizations, the statute violated the Article 2, §§ 1 and 13, and Article 4, § 19, subsection 13 as shown above.  ARS 33-1807 granted the HOAs protections not equally belonging to all citizens, and granted the HOAs special privileges and immunities.

In its Policy report No. 214**, on the application and support of the fundamental principles of the Arizona Constitution, the Goldwater Institute established four Canons:

Canon One:  The Fundamental Principle of Protecting Individual and Property Rights Enjoys Heightened Prominence over Other Constitutional Concerns.  However noble these additional constitutional provisions may be, Arizona’s Constitution demands that certain rights and structural protections be afforded utmost protection over the others.

Canon Two: Fundamental Liberties Cannot Be Weighed Against Government Policies.  Newly minted goals designed by the government should be given little weight in making constitutional interpretations that implicate fundamental principles.

Canon Three:  Presumption of Liberty.  [A] third canon of constitutional construction should arise, favoring a presumption of liberty, placing the burden on the government to demonstrate why its law is constitutional.

 Canon Four.  The Arizona Constitution Must Be Independently Construed.

The opponents of SB1330 make several arguments related to the survival of these private, quasi-governmental organizations that contain no protections and guarantees of the rights and freedoms under the federal and state constitutions.  They 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 away 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. 

SB1330 says nothing about this alleged consensual agreement of the CC&Rs.  It deals with the removal of the statutory lien of ARS 33-1807(A). It is the current Arizona statutes that interfere with the private agreement called the CC&Rs, and not SB1330 as falsely claimed by the opposition lawyer/lobbyists.

The real issue with SB1330 is the violation of the Arizona Constitution.  The Legislature, now and in the past, has failed to justify the denial of the homestead protection to citizens as a necessary action, not just a convenient action, in support of a legitimate government interest.  Simply stating “I support the maintenance of property values” or “SB1330 is a government interference in a private contract” is insufficient justification for legislators to defeat the passage of this bill. 

The fundamental principles of the Arizona Constitution stand tall above other constitutional concerns, and warrant the passage of SB1330.

  *  Community Associations Institute is a business trade, national lobbying organization for the HOA industry. It no longer has any HOA members, just interloper vendors and homeowner “volunteers”.  AACM is comprised of CAI member management firms, and was formed to distinguish themselves from the severe criticism of the interloper CAI member attorneys.

 **  Defining the Fundamental Principles of the Arizona Constitution: A Blueprint for Constitutional Jurisprudence, Benjamin Bar and Dorothy D. and Joseph A. Moller, Goldwater Institute, Policy report No. 214, October 24, 2006. 

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Published in: on April 25, 2007 at 7:08 am  Comments (1)  

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  1. While I am not pro or con CAI, my association is a member of the organizaiton. My association purhases 3 board membership each year which are given to the President, President Elect & Treasurer. So, your claim the CAI no longer has any HOA members is false. In addition, while CAI is a trade association and obviously gets involved with legislation, their core function – as I understand it – is to provide education for board members and community managers. A couple of my board members recently attended a class they put on and said it was absolutely fantastic. You present some good points and legitimate concerns, but you lose a great deal of credibility when you misrepresent things. Just thought you might want to know.


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