Bill creates HOA agency to restore constitutional protections

The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments. (George K. Staropoli)

CAI continues its marketing propaganda[1] lauding such objectives as: collective management, privatization of government, affordable housing, and social costs and marketing efficiencies.  Yet, CAI continues to ignore allegations that HOAs are authoritarian private governments relying on compliance by coercion; and operating outside the US Constitution with its protections of individual rights — the fundamental basis of the American social contract.

This press release seems to echo the philosophy of WWII Italian dictator, Benito Mussolini, the father of fascism.[2]

Anti-individualistic, the Fascist conception is for the State; and it is for the individual in so far as he coincides with the State…. Liberalism denied the State in the interests of the particular individual; Fascism reaffirms the State as the true reality of the individual.[3]

A fitting, modern interpretation of this anti-American, authoritarian philosophy can easily be applied to HOA-Land:

Against individual member rights, the homeowner association concept is for the HOA; and it is for the individual in so far as he conforms to the covenants, bylaws and rules and regulations of the HOA . . . the free expression of individual rights and freedoms rejected the HOA in the interest of the individual; the homeowner association concept reaffirms the HOA as the true objective of member obligations and duties. (George K. Staropoli).

It is unconscionable that this country has adopted the legal doctrine that any bill passed by a legislature is presumed to be constitutional, requiring a citizen to file a costly lawsuit challenging the constitutionality of the bill.  One would think that the legislature, and other government officials, would stand by the bill in question and defend its constitutionality.  Not so![4]

On the other hand, one would expect that the legislators, in good conscience, would reject any bill or repeal any statute that they found a violation of the Bill of Rights, or the state’s equivalent Declaration of Rights; or an unconstitutional violation of the 14th Amendment’s due process and equal protection of the law clauses.  Not so!

A long time ago in 1994, Prof. Evan McKenzie wrote in his landmark book, Privatopia, “HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[5]

I believe that our elected officials are quite familiar with this aspect of private, contractual governments hiding behind a simple, single phrase in the first clause, Article I, Section 10 of the US Constitution, “No state shall . . . pass any law . . .  impairing the obligation of contracts.”  The dominance of this impairment clause provides them with a misguided justification that permits the denial of the 14th Amendment protections.

It is long past time for the legislature to restore constitutional protections of individual rights, freedoms, privileges and immunities for their citizens living in HOA-Land.  Protections that were removed by misguided statutes creating special laws for special interests based on misrepresentations. Passing this bill into law would be a giant step forward.

The proposed Arizona Department of Homeowners Association (ADHOA) bill[6]

The intent of this bill can be found in my speaking for the legislature in Section 16, Legislative Intent, (was Section 20), of this 20-page bill.[7]  The bill is formatted according to legislative standards.[8]

Highlights of the bill:

  1. Adds OAH due process to 33-1256 and 33-1803.
  2. Creates Dept. of HOAs under Title 41, adding Chapter 20 that replaces ADRE statutes.
  3. Authorizes ADHOA Commissioner to enforce AZ Constitution, Chapter 2, Declaration of Rights.
  4. Authorizes educational classes for HOA board members.
  5. Requires Commissioner approval of new and amended governing documents, and review of CC&Rs.
  6. Commissioner can
    • adopt rules in accordance with Chapter 20,
    • Investigate and enforce compliance,
    • Enforce any ordered restitution by developer or HOA (to compensate homeowner for monetary loss and damages),
    • Appoint a receiver to manage the HOA,
    • Require HOA cooperation with investigation,
    • Institute legal action against persons destroying, concealing or removing corporate records,
    • Create standards for meaningful penalties for violations (similar to existing public requirements).
  7. Creation of an ADHOA advisory board of HOA members only to provide recommendations to the Commissioner.
  8. Sets filing fees based on current Justice Court filing fees, currently only $86.

 

References

[1]Community Associations Continue National Growth,” October 19, 2017 News Release.

[2] See Benito Mussolini: What is Fascism, 1932.

[3] Fundamental Ideas of Fascism,” Benito Mussolini, Souciant, Inc.

[4] See my Advisory, Arizona’s new “Take That George!” law: officials don’t have to defend HOA statutes.

[5] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[6] HOA regulatory agency bill-rev.pdf

[7] See my Advisory, Justifications for an independent HOA regulatory agency.

[8] New wording is designated in blue CAPS; removed wording will have a strikethrough.  All other wording is unchanged wording that must be included even if one word is changed in a lengthy amended section.

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Published in: on October 22, 2017 at 5:56 pm  Comments (4)  

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4 CommentsLeave a comment

  1. I hope you can find a few sponsors, George.

  2. This is great,George. It’s been 20 years in coming!!! I hope you don’t have a problem finding a sponsor, at least one who’s not beholden to the lobbyists and CAI. I look forward to fighting for it’s passage in the upcoming legislative session.

    Mary

  3. I support this bill and hope that every homeowner in Arizona will become aware that this bill needs to pass to protect homeowner’s property rights. It is a fair bill that will stop the abusive practices and hold those who choose to violate homeowner’s rights and hide relevant information accountable.

    • Thank you.

      The legislators, homeowners and homeowner advocates must look to their conscience and act accordingly. I am well aware that many readers will recoil in horror after reading this bill proposal, fearing the death of their cherished, if not perfect, HOA. Holding the directors and officers accountable, requiring state oversight protections, and reviews and approval of CC&Rs and the governing documents is not acceptable to them.

      HOA-Land has been given special dispensations in order to make the defective concept work in support of the special interest agendas, relying on the blind dogma of “no government interference” and a meritless argument of having agreed to be bound. Will these pro-HOA supporters still accept the benefits of and defend HOA-Land if this bill is passed into law, or will they desert their adoration — as CAI’s surveys suggest — of HOAs ? Failing to support this bill will reflect an acceptance of the good deal status of HOA-Land; and a rejection of principles of democratic government . It’s a matter of one’s conscience.


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