AZ HB 2160, HOA elections reform, provides misdemeanor penalties

One of the most needed bills for enforcement to protect the rights of homeowners in HOAs is Arizona’s HB 2160, which passed the House and goes on to the Senate.  This bill makes “A corporation or other entity that intentionally violates subsection [ ] of this section is guilty of a class 1 misdemeanor.”

In a subculture where legalized extortion goes unpunished, and where recourse to democratic election processes to elect and replace corrupt government “officials” are woefully inadequate, the Arizona Legislature is finally putting its foot down on such acts against public policy. HOAs hide behind the fact that they are private contracts and are not bound by constitutional protections while proclaiming how HOAs are a great town hall democratic institution.

However, the newly elected President-elect of CAI’s College of Community Association Lawyers, Arizona’s Scott Carpenter, protests this bill: “Where is the evidence that voting ballots should have a cloud of criminal prosecution having over it? Criminalizing the counting of homeowners association and condominium association ballots should outrage Arizona’s citizens.” (Criminalization of HOA Elections).

Why should citizens be outraged? While complaining about no justification to hold violators accountable, Carpenter offers know valid reason not to.  Perhaps the newly elected President-Elect doesn’t understand the difference between criminal and civil law. Let me explain.

Civil law is in regard to disputes between two parties, like a contractual dispute. Criminal law, on the other hand, are violations against the state and its laws. Nothing new, nothing different. It is there to “protect society . . . from those forces that most threaten the peace, the harmony . . . and society as a whole.” It is there to deter and to punish.

This bill is an affirmation that the violations of state laws by HOA boards and officers, and their agents, are contrary to the good of the greater society and must cease. The bill says that HOAs are no longer independent principalities doing as they wish without fears of liability for wrongful acts. If this is too much for some people, that their “free ride” is over, well, then they can just move out! But, the American system of government that treats all people equal and applies the law equally, and that now applies to HOAs, cannot continue to tolerate this separation from constitutional government.

It is the gross and prolonged failure of the industry to police itself in the midst of such abuse that has caused the legislature to act. It is the gross and prolonged failure of the “national HOA educator” organization with all their attorney lobbyists to work in support of, and not in opposition to, these bills that protect society as a whole that has caused the legislature to act.

A Class 1 Misdemeanor is an offense that carries up to 6 months in jail (ARS 13-707(A)(1)), and up to $2,500 in fines (ARS 13-802(A)). Neither are mandatory. However, a fine for a misdemeanor committed by an enterprise is up to $20,000 (ARS 13-803(A)), but is not mandatory either.

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Published in: on March 7, 2012 at 1:21 pm  Comments (5)  
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5 CommentsLeave a comment

  1. Does this bill cover Voting for Assessment Increases as well? Our Hoa is tallying votes as they come in on an assessment increase vote. The staff for the HOA are counting the votes. The official vote is supposed to close tomorrow and they have been counting votes ahead of the closing date. To me this is wrong and should be covered by this law as well!

    • This is an old bill that did NOT become law.

  2. Westwind HOA, managed by LightHouse Management, has never issued absentee ballots in the 13 years of its existence. It has been there method for maintain the status quo. I’m extremely disappointed that the bill appears to have failed in the Senate as of this writing.

  3. Enforcing election standards is one of those pointless feel-good measures, because HOA boards write their own election standards. Like many HOA reforms, this will accomplish nothing in the real world.

    http://www.economist.com/node/21548946http://www.economist.com/node/21548946

    How to rig an election
    Weighing the votes
    A brief guide to electoral fraud for the busy despot
    Mar 3rd 2012 | from the print edition of The Economist

    If you set about rigging the vote well in advance (see article), you can have an election that looks all right on the outside but guarantees the result you want. And nobody will be able to object. The secret is to obey the rules—having first written them yourself.

    • I don’t think this will accomplish nothing. Most board members will think twice if they can be hit with a $2,500 fine and 6 months in jail. And the HOA with a $25,000 fine. Of course, if as I beleive they are following the advice of theiur attorney, I would ask the attorney to sign an indemnification clause if sued and found guilty.


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