state legislatures rejecting HOA “ex post facto” amendments

The Idaho Governor was given a bill to sign, HB 511, that prevents HOAs from restricting rentals if the owner doesn’t agree with CC&Rs amendment.  If the CC&Rs did not have rental restrictions, the HOA cannot add one without the affected homeowner’s consent. A victory that applies ex post facto law restrictions, as set forth in the Constitution, to HOAs. This is a victory in which homeowner rights are restored on a case by case basis after being summarily denied by invalid and unconstitutional CC&Rs alleged contracts, with state legislators looking the other way.

Betsy Russell’s article in the Spokesman-Review[1] states that HB 511 declares,

“No homeowner’s association may add, amend or enforce any covenant, condition or restriction in such a way that limits or prohibits the rental, for any amount of time, of any property, land or structure … unless expressly agreed to in writing at the time of such addition or amendment by the owner of the affected property.”

According to Russell a supporter of the bill commented,

 “It’s not an imposition on a contract,” he said. “That contract is being applied in ways never intended, never understood, that devalue the property by taking away fundamental rights to the use and enjoyment of that property after the purchase. That’s the question. Is it appropriate for them to take it away without the consent of the purchaser.”

Of course, the author presents the old refrain by an opposition legislator, “To me, you signed on to a deal, and now we’re giving you an out – that it doesn’t have to be enforced. That doesn’t make sense to me. I’ll be voting no.”  As I wrote in “CAI flexes its muscle[2]”, enforcing invalid contracts makes a mockery of the law.

Also in the legislative hopper, having passed the House, the Arizona Senate is ready to vote on another ex post facto restoration bill, HB 2382[3], that would prevent CC&Rs amendments from being enforceable if the affected homeowner does not consent to the amendment.  This bill is a much broader bill pertaining to any amendment that affects less than all members. The effect of an HOA ex post facto amendment could be an eminent domain “taking” violation as the owner is not compensated by the “takings” amendment, which would bring the HOA in line with constitutional government.

 Advocates must get in the faces of their legislators and remind them who they work for: We the People, not the special interests, and definitely not their political party!

 

Notes

  1. Senate narrowly backs legislation to keep HOA’s from barring AirBnB or other short-term rentals,” Betsy Z. Russell, The Spokesman-Review, March 20, 2016.
  2. CAI flexes its muscle in Congress arguing constitutional law and judicial review.
  3. Arizona’s HB 2382 is an unconstitutional violation of eminent domain law.
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Published in: on March 20, 2016 at 4:49 pm  Comments (4)  

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  1. […] state legislatures rejecting HOA “ex post facto” amendments I mentioned 2 bills that gave limited protection to homeowner property rights in regard to ex post […]

  2. OK–I read your other article on this and you wrote:”Relating to covenants, upon a close reading of 33-440(A)(2), which has been law since September 26, 2008, the above changes appear to be redundant and not necessary, because in order to be a valid covenant the consent of “the owner of real property affected” by the covenant is required. This paragraph renders the proposed changes to the HOA amendment process to be unnecessary. It is binding whether or not the covenant affects only some of the members. It applies to existing covenants existing declarations and in any new HOA declaration as well as to amendments.

    This law, section 33-440, has been ignored by attorneys for homeowners and, as expected, by HOA attorneys for over 7 years! I have not seen this law raised in the courts in Arizona.”

    So what would you suggest we ask our legislators? Drop HB 2382[3] because it is redundant? thanks..

    • This 33-440 is a puzzle that doesn’t make any sense to me. Subsection A dos not distinguish from an amendment affecting less than all the members as does 33-1817. Consequently, any member affected by the amendment could invalidate the amendment. BUT, the additions, subsection C, does not apply to condos (subsection D). It seems to me that subsection 33-440(A) and 33-1817(A) are in conflict.

      Accepting that our dear legislators are not perfect and have overlooked this, yet the bill has not been modified, this becomes a battle for the courts if challenged. The bill should go into law in order 1) that some relief for homeowners is given and 2) so that this conflict can be resolved.

  3. Thank you for this! I want to help but am not sure what the bill says–do I want it to pass or not? “would prevent CC&Rs amendments to be unenforceable ” so they would be enforceable?

    “The effect of an HOA ex post facto amendment could be an eminent domain “taking” violation as the owner is not compensated by the “takings” amendment” so we don’t want this bill to pass?

    I’m sorry–I’ll come back when I read the bill. thanks!


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