HOA unilaterally usurps state police powers

I would like to first give a little background about me and my objectives.  Yes, I’ve opposed the CAI attorneys and have criticized homeowner associations CC&Rs.  My reasons have always been because they are not really supportive of your individual rights and freedoms, and do not protect your rights under the law and Constitution.  You have unknowingly surrendered these rights, and the courts have permitted this surrender, as a result of the broadly worded covenants in your CC&Rs that have not been fully explained to homeowners.

The Ekmark and Carpenter law firms (Arizona) are members of a national lobbying organization opposed to Constitutional protections for homeowners (as recorded in its filing with the NJ Appellate Court): Community Associations Institute (CAI).  CAI has its own personal agenda — to vigorously defend the HOA concept against all attempts to restore the rights lost when you took possession of your TCA deed. The HOA attorney works for the HOA corporation and not for the members of the HOA. 

This is very analogous to the business management vs. employee relationship, but that the “employees”, you the homeowners, do not have your own representation.  The board must obey the CC&Rs first and foremost, and are constantly being told to simply enforce, enforce and enforce by the HOA attorneys.  Enforcement and litigation put $$$ in the pockets of the attorneys! 

Your CC&Rs, your “constitution”, unlike the US Constitution, does not require the board to be just, compassionate, or truly promote your general welfare that would establish a truly healthy and vibrant community.

As an example of this conflict of interest by the TCA attorneys, the proposed amendments regarding voting rights were written back in 2007 while at the same time your board, and the HOA attorneys, fought against such a result in the courts.  Why? What was the purpose, except to gain income for the attorneys?  It was a completely vengeful action that was not conducted in good faith by your board, and a legal action recommended by the attorneys who now say these amendments are for your good. 

In particular, why on earth was Sec. 17.09 proposed?  Why was this very serious grab for public government powers buried under “among other things” in the announcement of changes? For what purpose?  It is a unilateral, self-anointed, unconstitutional declaration that Terravita CA has assumed county and state police powers to enforce the law and public ordinances.  It is irrelevant that the proposed covenant deals  only with Terravita properties.  (It implies that a homeowner can be doubly penalized — once by the state and once by TCA).  It is an unwarranted usurpation of state powers and is illegal!  It is, once again, a false assertion by the CAI member, HOA attorneys that any private agreement supersedes the US Constitution.

And the HOA attorneys advising your board know better!  The only reason that this 17.09 has been proposed is to advance the interests of the CAI national lobbying trade group, who seek increased power and control over HOAs (and we know who really controls the HOA boards), and not for the benefit of you, the homeowners.   Ask yourselves, What legal actions would TCA be subjected to if this amendment is accepted?

Ask your selves, What next?  This sec. 17.09 puts TCA on the slippery slope to becoming indeed another level of local government competing with public government as an independent and equal party, but without the required delegation of such status by the Legislature.   What’s next?  Establishing TCA jails for violators since the county jails are already overcrowded?   And once adopted, the burden, a huge burden, is placed squarely on the membership to correct!

Beware TCA members, and HOA members all over!  Is this the direction you want your HOA to take?


Published in: on November 7, 2009 at 5:05 pm  Comments (1)  

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  1. […] pvtgov 9:08 am In my recent Commentary on homeowner associations  foreclosures, HOA unilaterally usurps state police powers, further research revealed from very surprising […]

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