HOA principalities where there's no ex post facto or eminent domain protections

A homeowner from Apache Jtn, AZ (eastern end of Phoenix metroplex) contacted me yesterday saying that her palm trees violated the ACC’s “view of the world.”  She had moved in 4 years ago and planted palm trees like many other homes already had planted.  She was informed by the HOA that she had to remove the palms or be fined.  Amazingly, she was subsequently informed that CAI attorney Krupnick (a CAI honorable and highly lauded CCAL member, and employee of CAI Ekmark) that all palms in place over 4 years were outside the statute of limitations, but the HOA could remove trees planted less than 5 years.
Wow!!  HOAs escape ex post facto restrictions and eminent domain protections — no compensation was offered homeowner.  Welcome to the HOA-land of independent principalities with their own multiplicity of protected private “constitutions.”  
The argument advanced for amending those so-called contracts, and upheld in the courts, is that they contain an amendment procedure, and so long as the procedure was followed they are valid.  So argue the “expert” CAI attorneys.  But, they want you to ignore the other side of due process — substantive due process where the HOA “law” is itself a violation of our system of government. 
And forget about any question of a buyer’s “reasonable expectation” as a requirement for a valid amendment.    Or that there is no explicit waiver of the surrender of any property rights.  Or, that under contract law a CC&R amendment easily falls under an “agreement to agree” (“A-to-A”), and is not binding. An A-toA is an enforceable document if the specifics are sufficiently definite, as well as compensation, but some details are to be worked out.  In a valid A-to-A, parties cannot bind themselves to negotiate to reach an agreement on some issue or important detail. (See Black’s Law Dictionary).  What is an amendment?  It is not a negotiation between the HOA and every individual homeowner, especially if not 100% approved!  It can be a very important issue (detail) not heretofore contemplated or envisioned by the buyer.
How then are they valid?  Because the courts have treated this CC&R “contract” not strictly in terms of the words contained therein, but quite liberally by ascribing public government attributes to the HOA, far and above any reasonable interpretation or construction of the CC&R “contract”, and beyond any reasonable or “buried” intent to form a de jure government.
Furthermore, if equitable servitudes were indeed subservient to constitutional law, and not as the Restatement of Servitudes (common law) argues —  servitude law should prevail over constitutional or contract law — we wouldn’t be seeing this travesty of American democratic principles, of fairness and justice for all. 
What is becoming of America?   See Establishing the New America: a new book.
Published in: on June 17, 2009 at 4:17 pm  Leave a Comment  

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