HOAs vs. local government — which “laws” control?

In the  Aug. 6, 2010 Carpenter Hazlewood (CAI attorneys, AZ) e-newsletter post, Deed Restrictions versus City and County Ordinances: Which One Controls,”   attorney Nkita Patel wrote,

“In sum, if there is a conflict between the association’s CC&Rs and a city or county ordinance, the more restrictive provision will govern.”  

The underlying rationale is that the homeowner, upon taking possession of his deed, has agreed to every surrender of his rights.  And people can agree to the surrender of their rights.  But, under what circimstances and conditions?  Under servitude law of covenants, the homeowner need not read nor sign his explict consent to the surrender of his rights. But, this justification, by itself, is a violation of not only contract law, but of constitutional law and the owner’s due process rights.  Even The Restatement of Servitudes, §3.1, holds that an unconstitutional covenant is invalid.  What say you, Ms. Patel?  

Furthermore, what say you if the covenant simply says, ineffect, “No parking on the streets or driveway?”   Here, regarding public streets, the ordinance says, “No parking 8:00PM to 6:00AM.”  Which is more restrictive?  Which “political law” controls?   

And, finally, the “usual advice” statements are offered, where only partial answers are provided —  those favoring the HOA and NOT explaining how the law would apply as to circumstances favorable to the homeowner.  Carpenter Hazlewood has never addresed the issue of guest parking and the wrongful holding a member in violation of the CC&Rs in an egregious violation of the law, good faith treatment of members, and a just and fair governance. 

What say you, Ms. Patel, about the HOA’s actions in these circumstances?  Please see Wigwam Creek North HOA v. Fuchs, CC: 2010- 49644, Estrella Justice Court, where such an event and wrongful HOA act took place, apparently with HOA attorney approval.


Read more . . .

HOA attorney collusion and regulation of public streets

Ethical obligations of attorneys to HOA members


Published in: on August 6, 2010 at 8:21 am  Comments (1)  
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  1. Since the “law of servitudes” is not U.S. law at all, but British law I fail to see how the Arizona courts are upholding any of these suits or restrictive comvenants unless they are using a “foreign” jurisdiction for their rulings.

    And that in and of itself is unconstitutional – using foreign law and precedence in this country for any reason whatsoever.

    Since this country was established under the “free use of land” doctines from its inception in order to redress the wrongs they had suffered with sovereign takings in England of their land and property.

    So the intent of HOAs is to facilitate socialized housing and communal land ownership under sovereign rule by the state and developers outside Constitutional authority.

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