State legislatures and HOAs: When will they ever learn?

It should not come as a surprise to anyone that state legislators have allowed the HOA legal scheme, which they have played a strong hand in supporting, to deny the equal application of the laws for all, and the loss of constitutional protections. 

Free speech, flying the flag, due process, clean elections, etc. have been denied by HOA regimes.  Even noted CAI member attorney, Adrian Adams, speaking about HOAs in the Davis-Stirling online Newsletter article, Animal Sacrifice: Just as private organizations can restrict free speech, they could conceivably restrict religious practices that negatively impact other members.

The denial is basis on the specious and false argument of a “consent to agree.”  A consent that falls dismally short of meeting Supreme Court judicial scrutiny for constitutionality. All the HOA has to show is an HOA interest for the benefit of the entire community and the courts will find no problem, just as if the HOA were a government entity that has some legitimate interest in the issue.

Furthermore, legislators accept the argument that any validly passed CC&Rs amendment binds everyone including any dissenters, regardless of its relevance, bearing, or reasonable expectancy of the restrictions being imposed on owners.  It’s the “general government interest” approach. It appears that public government attributes are ascribed to the contractual HOA, with the contractual terms are being ignored.  All reform legislation is an attempt to restore those rights wrongfully denied the homeowners, on a case by case, HOA by HOA, state by state basis. 

HOAs are not de jure governments — not state entities.   But, they are de facto governments operating under state legislature protections, but in contrast to all other government entities, without constitutional protections.  HOAs are unrecognized governments as is Cuba, but functioning nevertheless every day.

When will legislatures learn?  When will they undertake an independent study of HOAs with a truly independent “think tank”?  Like the Arizona State’s Morrison Institute for Public Policy.[i]  When?  Perhaps never, since they don’t seem to really want to know, and perhaps because they know what the findings will show.


[i] “Morrison Institute provides public policy research for government agencies, private associations, nonprofit organizations, and communities. In conducting research, analysts draw upon a variety of disciplines and methods: collecting original data through public opinion surveys, interviews, and consultation with experts; and analyzing existing information through review of published research reports, current legislation, and statistical data.”  (See http://morrisoninstitute.asu.edu/about/about-the-morrison-institute).

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4 CommentsLeave a comment

  1. George: What happened to the class action lawsuit filed last fall against Arizona’s HOAs by attorneys Watters and Wood?

    Is it pending or has it been adjudicated. If so, what was the result.

    Barry Cox

    • Don’t know.

  2. Thanks, Mr. Staropoli, for keeping me on distribution. I am concerned, however, if a challenge to a silly HOA rule can ever be successful because the court considers the Covenants a contract. For example. A house must be repainted every seven years—whether it needs it or not! I think that’s arbitrary and unreasonable. Martin Kessler _mdk4130@aol.com_ (mailto:mdk4130@aol.com)

    • Under the common law Restatement of Servitudes, there are a few criteria for an invalid covenant that must be met: not violate public policy, not be unconstitutional, and not be arbitrary or capricious (unreasonable). BUT, you must show these elements. The HOA must show some rationale pertaining to a stataed objective. Courts have upheld these criteria.

      However, a covenant that says gates must be 3 feet in height and not 3 1/2 may be found reasonable if the HOA argues successfully that “conformity” would be disturbed by the 6 inch difference.

      In Arizona, OAH does not have jurisdiction for Restatement or corporate law violations, and you must go to civil court.


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