HOA constitutionality issues increase

I am pleased to see that more and more court cases and legislation in many states directly addressing the unconstitutionality of the widespread Declarations of CC&Rs, which all flow from the 1964 HOA “bible,”  The Homes Association Handbook.[1]  The topic here is Montana’s SB 300 bill[2] that has CAI really worried.  In its advocacy CAI quotes, “Randall Snyder Testimony –SB 300 is unconstitutional’  and ‘Simkins Holdings, LLC, developer of the Big Sky Town Center – ‘As a real estate developer, SB 300 violates our ability to contract with our current members’ among others.[3]

SB 300 is a short bill that is “on point” with respect to making the CC&Rs agreement, held by the courts to be a contact, to abide by Contract Law 101 with respect to the requirement that both parties, the HOA and the homeowner, must agree to any changes and amendments.  Under the general boiler plate CC&Rs amendments that alter your contract at the time of closing can become effective without your consent.   The US Constitution prohibits ex post facto laws. In the public domain under contract law and common law this is not allowed, it’s a No-No.

Section 1  of the bill —

“(1) A homeowners’ association may not enter into, amend, or enforce a covenant or condition in such a way that imposes more onerous restrictions on a member’s basic rights to use the member’s real property than those restrictions that existed when the member acquired the member’s interest in the real property.”

“(4) Nothing in this section invalidates existing covenants of a homeowners’ association or creates a private right of action for actions or omissions occurring before [the effective date of this act]. However, after [the effective date of this act].”

Subsection 4 prohibits what I have referred to as “ex post facto” amendments,[4] making the HOA “constitution” compatible with the US Constitution.

The rational for the courts upholding ex post facto amendments has been the amendments clause of the CC&Rs whereby the homeowner agrees to the vote of the members if it meets the approval requirements.  (See my full rebuttal as contained in note 4, “HOA Principalities”).

“But, they [the courts] want you to ignore the other side of due process — substantive due process where the HOA “law” is itself a violation of our system of government.  And forget about any question of a buyer’s “reasonable expectation” as a requirement for a valid amendment.    Or that there is no explicit waiver of the surrender of any property rights.”[5]

HOA constitutionality issues are an effective means to attaining HOA reforms as it will force an open, public discourse on these violations. It will force the legislators and CAI to defend their positions in public or remain silent.  Advocates must make repeated recourse to these issues, and make sure that the media publicizes these valid arguments.

Promotional

PALADIN-x2

Support HOA reforms  Coalition of Homeowner  Advocate Paladins (CHAPs).

 

 

Notes

[1] See Analysis of The Homes Association Handbook.

[2] Montana SB 300:

[3] Stop SB 300; A Bad Bill.  CAI Advocacy Take Action, April 4, 2019.

[4] In general, see HOA principalities where there’s no ex post facto or eminent domain protections; state legislatures rejecting HOA “ex post facto” amendments; AZ court ends open-ended “ex post facto” HOA amendments.

[5] Id, see “HOA Principalities.”

Published by

HOAGOV

"The Voice for HOA Constitutionality". I have been a long-term homeowner rights authority, advocate and author of "The HOA-Land Nation Within America" (2019) and" Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

10 thoughts on “HOA constitutionality issues increase”

      1. Page 2 of the bill that has been signed by Pro Temp. See questions at the bottom of this post.

        SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
        2
        JULY 1, 2019]: Sec. 14.
        (a)
        If an impasse is reached, and:
        3
        (1) neither party requests mediation or arbitration; or
        4
        (2) mediation or arbitration does not result in a settlement of the
        5
        claim;
        6
        the claimant
        a party
        may, begin legal proceedings.
        not later than ten
        7
        (10) days after the impasse is reached, submit the matter to
        8
        mediation by an impartial mediator to be selected by the American
        9
        Mediation Association from a current listing of mediators from the
        10
        National Academy of Distinguished Neutrals.
        11
        (b) The mediation shall be conducted in accordance with the
        12
        rules and procedures of the American Mediation Association.
        13
        (c) The cost of the mediator and any other direct costs of the
        14
        mediation shall be equally divided by the parties engaged in the
        15
        mediation.
        16
        (d) Nothing in this section shall be construed to prohibit good
        17
        faith settlements voluntarily entered into by the parties.
        18
        (e) If neither party requests mediation, or if mediation is
        19
        unsuccessful, the claimant may begin legal proceedings.
        20
        SECTION 3. IC 32-25-8.5-17, AS ADDED BY P.L.141-2015,
        21
        SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
        22
        JULY 1, 2019]: Sec. 17. The board, on behalf of the association of
        23
        co-owners, and without the consent of the co-owners, may do any of the
        24
        following:
        25
        (1) Negotiate settlements of claims,
        participate in mediation
        26
        hearings,
        or
        initiate
        legal proceedings under this chapter.
        27
        (2) Execute settlement agreements, waivers, releases of claims, or
        28
        any other document resulting from application of this chapter.”.
        29
        Page 3, line 7, delete “four (4)” and insert ”
        six (6)
        “.
        30
        Page 3, delete lines 30 through 42.
        31
        Page 4, delete line 1.
        32
        Page 4, line 2, delete “(11)” and insert ”
        (9)
        “.
        33
        Page 4, line 4, delete “(12)” and insert ”
        (10)
        “.
        34
        Page 4, after line 7, begin a new paragraph and insert:
        35
        “SECTION 5. IC 32-25.5-5-12, AS ADDED BY P.L.141-2015,
        36
        SECTION 14, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
        37
        JULY 1, 2019]: Sec. 12. (a) The parties are considered to be at an

        This is the same language that was in HB 1138 and now is in HB 1331 (solar panels bill).

        Is this allowed to be done without any notification from IGA to tell everyone that one bill is being implemented into another bill? Is this a violation of ethics or procedures or anything we can after them on?

      2. Thanks, but could you edit the bill to make it easier to follow — remove line numbers and short lines

      3. CAn you send me an email address and I will take screenshots for you. I have found something very interesting and not sure how significant it is and was hoping you may be able to tell me if you think this is an opening. I would rather talk about that over the phone instead of email or blog.

  1. Indiana gas passed HB 1074 which is now IC 32-25-5 which is an exact match for ex post facto law that violates our Indiana Constitution 23, and 24, US Constitution 5th and 14th amendment. No one will do anything about it.

    Laws are just words on paper unless you they are enforced. The courts and legistlation is completely corrupt.

      1. HB 1074 is now law. IC 32.25.5

        Click to access TITLE32_AR25.5_ar25.5.pdf

        Now, HB 1138 wants to force mandatory mediation down our throat. This legislation has stopped BUT we think they moved it into HB 1131.

        Click to access TITLE32_AR25.5_ar25.5.pdf

        I have been fighting this battle for more than 4 years now and losing ground. My goal is to educate as many homeowners as possible to build a coalition to go up against the IGA and repeal each of these laws that are violating our civil rights.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.