"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.
Thank you to these incredible volunteer leaders and CAI members. Wishing you, your family, and friends a Happy Thanksgiving. We’re so thankful for you!
Government and Public Affairs Committee Mr. T. Peter Kristian, CMCA, LSM, PCAM Ms. Sally L. Balson Mrs. Marilyn E. Brainard Mrs. Wendy Bucknum, CMCA, AMS, PCAM Ms. M. Katherine Bushey, Esq. Mr. Joseph Carleton, Esq., CCAL fellow Mr. Joseph Crawford, CMCA, AMS, PCAM Ms. Sandra K. Denton, CMCA, LSM, PCAM Ms. Jennifer Eilert, CIRMS Mr. Michael Johnson, CMCA, AMS, PCAM Mr. John Krueger Ms. Lisa A. Magill, Esq., CCAL fellow Mr. Nathan R. McGuire, Esq. Ms. Janet L. Newcomb Mr. Matt D. Ober, Esq. Mr. Scott J. Sandler, Esq., CCAL fellow Mr. Todd A. Sinkins, Esq., CCAL fellow Ms. Wendy W. Taylor, CMCA, AMS, LSM, PCAM Mr. Michael Laurence Traidman Mr. Craig F. Wilson Jr., CMCA, AMS, PCAM Mr. Ronald L. Perl, Esq. CCAL fellow Mr. J. David Ramsey, Esq., CCAL fellow
Federal Legislative Action Committee Mr. Ronald L. Perl, Esq., CCAL fellow Mrs. Pamela D. Bailey, CMCA, AMS, PCAM Mr. Jeffrey A. Beaumont, Esq., CCAL fellow Mrs. Marilyn E Brainard Mrs. Wendy Bucknum, CMCA, AMS, PCAM Mr. Robert M. Diamond, Esq., CCAL fellow Mr. Andrew S. Fortin, Esq. Mr. T. Peter Kristian, CMCA, LSM, PCAM Ms. Lisa A. Magill, Esq., CCAL fellow Mr. Stephen M. Marcus, Esq., CCAL fellow Mr. George E. Nowack Jr., Esq., CCAL fellow Mr. J. David Ramsey, Esq., CCAL fellow Mr. Stefan Richter, Esq., CCAL fellow Mr. Clifford J. Treese, CIRMS
Champlain Tower South Task Force Leadership and Committee Contributors Ms. Lisa Magill, Esq., CCAL fellow Mr. Bob Browning, PCAM, RS Mr. Mitchell Frumkin, RS Mr. Robert Diamond, Esq., CCAL fellow Mr. Stephen Marcus, Esq., CCAL fellow Ms. Jennifer Eilert, CIRMS Ms. AJ Scott, CIRMS Mr. Phil Masi, CIRMS Mr. Cliff Treese, CIRMS
(The following underlined are NOT links. See above link.)
Folks, time for a reality check. You know I’ve repeatedly argued for constitutional protections and getting only slip-service. As Prof. Evan McKenzie wrote in 1994 (Privatopia: Homeowner Associations and the Rise of Residential Private Government,
“CIDS [HOAs] currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”
Many of your complaints, here and on other websites, reflect this reality of an authoritarian government that coerces consent. HOA boards are not required to uphold member fundamental rights; neither are they obligated to be fair, just, understanding, or compassionate. HOAs are NOT public governments with these implied obligations. It does not have to be that way!
“An HOA is the governing body of a condominium or planned unit development (PUD) functioning for all intents and purposes as a de facto local political community government, but not recognized as such by state governments.
“Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy. Is this HOA government better than public government? Common sense tells us no!”
“Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties or punishments for violations of state laws or the governing documents? Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.
“The much touted HOAs are democratic because members can vote is utterly without merit? Fair elections protections, as compared with those in the public arena, do not exist under a corporation law. Members do not have equal access to HOA newsletters, website, member lists, and use of common amenity meetings rooms, among other denials.”
A quick and simple — but highly effective — bill that was proposed in March 2011 and will bring relief to homeowners being treated a second-class citizens by state laws in support of the HOA legal scheme. It was ignored by Arizona advocates and dismissed by the Legislature.
“No provision of any contract or any declaration of covenants, conditions, and restrictions . . . is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties . . . . Any representation or statement offered as clear and convincing evidence . . . shall include a signed statement containing the following, beginning with “I understand that I can ask that the following be read and explained to my satisfaction.”
“So reads an excerpt from my proposed “Truth in HOAs” statute that should be made law in each and every state. That is, if indeed the legislature stands by the Declaration of Independence and the US Constitution, which we are hearing so much about in the media nowadays.”
The “The Truth in HOAs Act,” as I called it, allows each state to modify the proposal in accordance with its state HOA/condo acts — shown in square brackets . Also, subsection (3) contains a list of acknowledgements that can be tailored to each state’s advocate lobbying efforts. See Arizona Truth in HOAs statute (pvtgov.org). The essential bill section is contained in subparagraph (4).
“Therefore, in reference to subsection 3(d) above, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, “The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.”
This 2022 legislative session offers a unique, one-time opportunity to get the message across and to educate the legislators. Remaining silent on the issues only plays into the pro-HOA hands of CAI and offers excuses by the media not to cover HOA abuse. Not only will you find “ammunition” in support of your arguments as contained in the 2 above publications, but also in my Arizona Supreme Court amicus brief filed and accepted in Tarter v. Bendt (see note (vi) in Can HOA members expect justice in Arizona courts?).
My arguments are summarized in the Commentary. As is my approach, my arguments are supported by legal authority and hard evidence documents, which CAI ignores and YOU lose! They must be exposed if the legislators are to be fully informed on the reality of HOA-Land. As leaders who are internet publishers, actions speak louder than words!
My concern, since I was a teenager, was how do people make decisions and important choices, and why. It should be generally accepted today that we are facing a lot of harmful irrationality in many aspects of our society. It would seem, addressing the conduct, behavior and choices made by members of HOAs with respect to their HOA, and to the institution of HOAs in general, that the adage “My rationality is your irrationality and vice versa” is at play. (What you consider rational I consider irrational, and what you consider irrational I consider rational).
My many years of activism in HOA reform legislation and research into this issue led me to the strong belief that the forces and dynamics of cult behavior and authoritarianism were the chief factors in the behavior of HOA members; the majority of whom seem to act in a highly irrational manner that was harmful to their own self-interests – the HOA can do no wrong.
Well, thank goodness Steven Pinker makes some sense of rationality by delving into the functioning of the mind from a cognitive psychologists point of view. (It’s like trying to explain why the chicken crossed the road). Having a minor in psychology, I describe Pinker’s presentation as rather deep being directed more to Rationality 201 or even higher, Rationality 301, using college level course structure. The “meat” of his book, for my purposes, comes in Chapter 10, What’s Wrong With People, when he comes down to the level of the average person.
From the very start Pinker makes it clear that the average person does not understand scientific investigation, the mathematics of probability, formal logic analysis, syllogisms, forecasting, etc.. He simply uses his gut feelings, his intuition, which has always been mankind’s way of thinking.
Summarizing the author’s views, using annotations to simplify his learned arguments,
“To be sure, many superstitions originate in overinterpreting coincidences, failing to calibrate evidence against priors, overgeneralizing from anecdotes, and leaping from correlation to causation. [In more common terms, failing to vet the claims or to conduct due diligence].
“Social media may indeed be accelerating their spread, but the [appeal] lies deep in human nature: people . . . compose these stories, and it’s people they appeal to.
“The mustering of [reasons] to drive an argument toward a favorable conclusion is called motivated reasoning. The motive may be to [support] a favorable conclusion, but [also to] flaunt the [other sides] wisdom, knowledge, or virtue.
“People seek out arguments that ratify their beliefs and shield themselves from those that might disconfirm them.[Emphasis added].
“A large majority of Americans consider themselves less susceptible to . . . biases than the average American, and virtually none consider themselves more biased.”
Study the above statements by the author carefully. It should become apparent that they describe the why and how the bulk of HOA members blindly obey their HOA board of directors. They also explain the cult mentality of and the authoritarian appeal by the members (see Notes below). It demonstrates that the mindset of the majority of members is believing that their HOA is heaven on earth and the next best thing to Mom’s apple pie; they do not want that belief disturbed and— unconsciously — naturally adopt motivated reasoning to preserve their image of a better community, a better world.
Please understand the difference between a real estate condominium and planned subdivision with its desirable amenities, landscaping, and oversight on contractual violations from the association that is the authoritarian, governing body also commonly referred as the HOA. The former can be retained under the protection of Constitution now denied to the HOA members.
Applying Pinker’s findings, did the Arizona Supreme Court act irrationally in its denial to review the Tarter v. Bendt Petition filed by the homeowner?
 Steven Pinker, Rationality: What It Is, Why It Seems Scarce, Why It Matters, Viking (2021).
 Cognitive psychology is the scientific study of the mind as an information processor. Information processing in humans resembles that in computers, and is based on based on transforming information, storing information and retrieving information from memory. Cognitive Psychology.
The Arizona Supreme Court has denied hearing the Tarter v. Bendt (CV21-0049-PR), a defamation lawsuit brought by an HOA president and attorney. In general, the Court does not provide any reasons or justifications for its decision and did not provide one. The attorney for Bendt, Lori Voepel, while addressing the legalities of the decisions, raised the question that Tarter, the HOA president, was a limited-purpose public figure entitling Bendt to additional free speech protections. It is my understanding that Sonia Bendt will be pursing a US Supreme Court appeal.
In my amicus brief I informed the Justices about the real-world functioning and operations of HOAs, and about the biased public policy resulting from the dominance of the national lobbying organization, CAI, and its agenda. I included aspects of public policy set forth by the Arizona pro-HOA legislature, judges in their decisions and opinions, and the silence of the media to inform the public as to this reality. I had hoped that the case would be remanded for consideration of the role of the HOA president, since the complaint concerned acts and conduct by Tarter in his capacity as HOA president.
In my amicus brief (an advisory filing as a “friend of the court”) I painted a broad picture of HOAs as public forums with protected free speech concerning questions of HOA governance. A favorable decision would have prohibited HOA boards of directors from restricting member criticisms and allowing “opposition parties” equal access to the same means and vehicles that the BOD uses; namely, the HOA magazine, email distribution, use of facilities for meetings and “townhalls,” to name a few.
I am very disappointed in the Arizona Justices. Permitting an outlandish financial damages and adding punitive damages of $1,000,000 and $500,000 in compensatory damages is outrageous and not warranted by the evidence or by the HOA legal scheme. An opportunity to protect citizens living in HOAs from second class citizenship was ignored! Have they forgotten the 8th Amendment prohibitions: “nor excessive fines imposed, nor cruel and unusual punishments inflicted”? OH, HOAS are not public bodies!
The homeowner, Bendt, is punished for speaking out in admittedly harsh terms. Yet the judicial system stands by looking at a distance and allowing Trump and his followers to function as vexatious litigants. Allowing them to raise allegations, which are not only laughable but blatantly false under Rule 11, is shameful conduct. “No negatives about HOAs shall be allowed” seems to be the Court’s policy.
“Something is rotten in the state of Denmark.” No, something is rotten in the state of Arizona!