Arizona AG urged to pursue HOA consumer legislation


May 11, 2017

open email letter

Hon. Mark Brnovich
Attorney General
State of Arizona
1275 West Washington Street
Phoenix, AZ 85007-2926

RE: needed HOA consumer protection legislation

Dear Attorney General Brnovich:

I was pleased to see your open message to improve consumer protections asking people to give local Phoenix ABC affiliate, ABC15, on May 9, 2017 a call about the need for new laws. I congratulate your proactive stance as repeated requests for AG intervention in regard to substantial HOA abuse were met with, by prior AGs, until legislature passes laws for the AG’s office to act your office was helpless. You also mentioned that your office has already sponsored legislation with respect to home mover abuse.

I congratulate you on your proactive stance and hope to see your office undertake an urgent task force investigating the substantial and well documented abuse perpetrated on the public buying and living in an HOA controlled home.

There are several homeowner rights activists in Arizona who can provide such evidence in opposition to the special interest propaganda that dominates the legislature and executive branch. Their web page blogs are well documented with case law, statute violations, and incriminating statements from the offenders.

However, I have great concerns that any consumer protection reform laws of substance, if passed by the legislature, will come to naught. This session, the Legislature had passed HB 2411, titled “homeowners’ associations; open meetings,” that also included a second subject, creating a constitutional violation when ARS 33-440, dealing with conveyances and deeds, was added. As I and others had informed the House and Senate, and Governor Ducey, too, who signed HB 2411, that this bill was facially unconstitutional.

It violated the AZ Constitution, Article 4, Part 2, Section 13. (See Consent to be governed, No. 4 and CC&Rs are a devise for de facto HOA governments to escape constitutional government). This bill is a similar violation as was the 2013 Ugenti bill, SB 1454, which was found invalid and unconstitutional by your office in a settlement agreement (Staropoli v. State of Arizona, CV 2013-009991, Maricopa County).

In part, my emails to these government officials informed that quite frankly,

“Your decision to not veto this unconstitutional HOA bill . . . would further the appearance of impropriety and create the impression that the people come last in Arizona.”

“There can be no excuse or justification for passing this bill, except to support a personal agenda from the HOA vendor members of CAI. Just because a CAI lawyer, allegedly responding to a client, asked Senator Kavanagh that ARS 33-440 (conveyances and deeds) be included. 33-440 does not refer to or include any wording with respect to HOAs, but it expands the application of long held terms, in particular ‘private covenant’ and ‘declaration,’ beyond HOA-Land.”

Apparently, the constitution and state laws are just pieces of paper to be ignored at will by our elected representatives! I hope your efforts can declare this bill invalid and unconstitutional as well.

Adopting a broad perspective on HOA abuses, your task force must focus on a much more “concrete” abuse in the selling process that involves a long pattern of misrepresentation and fraud. It centers on the question of agreeing to be bound to an adhesion contract. While the CC&Rs have been construed and interpreted by the courts as a contract under equitable servitudes law, there has been a failure to apply “contract law 101” requirements for a binding contract.

Unsuspecting homebuyers believing that they were protected by the constitution and state laws find themselves in HOA-Land — territories that are locally governed by de facto HOAs that function outside constitutional protections. HOAs have been granted far more freedom than that granted to the most liberal of home rule statutes that require and provide for constitutional oversight and protections. (See HOAs violate local home rule doctrine and are outlaw governments).

Furthermore, the Commissioners Rules under ADRE, R28-4-1101, Duties to Client, has been ignored by the department in its entirety. It requires agents to disclose material facts about the sales transaction, but ADRE hides behind we don’t regulate HOAs, which is irrelevant. Another instance where the law is ignored.

I am available to meet with you and your staff to get the ball rolling on this long-awaited need for consumer protection legislation for HOA buyers and owners.

Respectfully,

George K. Staropoli

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Published in: on May 10, 2017 at 6:25 pm  Leave a Comment  

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