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.
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