In 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 facto amendments that constitute an eminent domain taking. Idaho’s HB 511 was signed into law by the Governor on March 24th, and Arizona’s HB 2382 is a technical done-deal as the House agreed to accept the Senate’s technical corrections, which would then be sent to the Governor for signing.
Idaho HB 511: “No homeowner’s association may add, amend or enforce any covenant, condition or restriction in such a way that limits or prohibits the rental . . . unless expressly agreed to in writing at the time of such addition or amendment by the owner of the affected property.”
Arizona HB 2382: “AN AMENDMENT TO A DECLARATION MAY APPLY TO FEWER THAN ALL OF THE LOTS OR LESS THAN ALL OF THE PROPERTY . . . (b) IF THE AMENDMENT RECEIVES THE AFFIRMATIVE VOTE OR WRITTEN CONSENT OF ALL OF THE OWNERS OF THE LOTS OR PROPERTY TO WHICH THE AMENDMENT APPLIES.”
Idaho’s bill needs no explanation. It is a property right of the owner to lease his home if he so desires, and that constitutional right cannot be taken away by the HOA.
Typical applications of Arizona’s bill could in regard to no longer permitting certain trees landscaping and a mandatory removal of these unacceptable landscaping, or disallowing certain home colors or external features like shutters or attached awnings, etc. How about lot owners facing a drainage ditch or right of way road that was maintained by the HOA and is now to be maintained by those homeowners?
Just one no vote by a homeowner whose CC&RS at the time of purchase said that the HOA was responsible would kill the amendment. Keep in mind that there may have been several earlier versions of the CC&RS as a result of prior amendments, which would then make the attempted amendment applicable to less than all lots or owners. Or, not all units have an outdoor deck.
Please note the absence of compensation for the loss of property rights. Heaven forbid that the law, in the interest of justice and fair play, would ask the HOA to pay money to affected homeowners. While America survived for over 240 years with this requirement, the defective HOA scheme needs the legislature to bail it out and not require fair compensation.
Gee, the HOA might fail. The other members would not pay for it under their version of “it ain’t fair” mantra. HOAs would lose their appeal. Oh my gosh, plead the legislatures, we can’t let that happen. We got a good thing going here.