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.
The existing legal structure and state laws need to be dramatically altered to remove 40-plus years of problems. His long-term plan is to apply organizational development (OD) principles and methodology to correct this long standing affront to the US Constitution.
While there are many anecdotal claims of attorneys for HOAs acting unprofessionally and unethically, there are sufficient instances documenting such conduct. I have encountered and witnessed some myself. Few have been charged to my knowledge.
The most common, in my experience, is a violation of civil court procedure where the attorney churns the account, seeks many continuances, and raises dubious claims based on the extension of commonly accepted legal doctrine and terminology. Fortunately, I am not an attorney and need not concern myself with extending “professional courtesies” to my opponents.
The questionable conduct I am addressing can be found in federal rules and in various state 1) supreme court Rules of Professional Conduct, usually under Rule 42, E. R. 1.13, Organization as a Client, and 2) under Rules of Civil Procedure, Rule 11(b), Signing pleadings . . . Representations to the Court.
Rule 11(b) states (emphasis added), in short,
“By signing a pleading . . . the attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:
“[I]t is not being presented for any improper purpose . . . or needlessly increase the cost of litigation . . . and other legal contentions are warranted by existing law or by a nonfrivolous argument . . . the factual contentions have evidentiary support . . . the denials of factual contentions are warranted on the evidence.”
Rule E.R. 1.13 states (emphasis added), in short,
“(a) A lawyer employed or retained by an organization [HOA] represents the organization acting through its duly authorized constituents [the BOD].
“(b)If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action. . . that is a violation of a legal obligation to the organization [directors duties for example], ora violation of law . . . the lawyer shall refer the matter to higher authority in the organization.”
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I am quite pleased with the opinion by the Arizona Appellate Court in ArizonaBiltmore Hotels Condo Assn v. Conlon (CACV 18-0709, June 23, 2020). This involved case of over 10 years, multiple parties, and 3 lawsuits dealt with a conflict of interest by the association’s president. He also owned several properties (a dual role conflict) subject to claims of who would get parking lot rental income.
My point of interest lies in the Court’s inclusion of a statement by the attorney for the association president in the 2013 lawsuit and used as evidence in the current case. Here we find a highly regarded law firm standing by its obligations under professional conduct and certification to the court, as above.
The president hired Cheifetz, Iannitelli & Marcolini, CIM, (now Iannitelli Marconi) on behalf of the association. “CIM soon raised concerns about the merits of the Association’s lawsuit and shared those concerns in a letter to [the president]” who did not pass the concerns to the board. As required, if CIM believed that there were serious concerns, it brought their concerns to the board a year later.
Now removed as president and still a director and still owner of the TCG firm in conflict, the Courted quoted CIM’s position in this president gone wrong case.
The 2013 Court found the director guilty. It held “that [he] both breached his fiduciary duties and negligently misrepresented facts to the Association . . . controlled the information and did not make full and necessary disclosures.”
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FYI — The “Cheifetz” above is none other than Steve Cheifetz, former CIM manager now retired, with whom I’ve had the pleasure of knowing and exchanging views on HOA law and cases. He worked closely with Jonathan Dessaules, another outstanding Arizona attorney taking on homeowner cases.
HOAs are not a club. They are legally binding adhesion agreements in favor of the HOA government, the BOD, and seriously detrimental to homeowner property interests and member fundamental rights. Members are at risk because the private “contractual” CC&Rs have been held superior to the US Constitution by the courts. The facts are there in the public records and state HOA statutes known as “Acts.”
It is in the best interest of the members not to obediently agree to all the BOD says they should, but to get educated and discover the truth for themselves. If they can handle the truth. Discover for yourselves.
My seminal book, The HOA-Land Nation Within America describes the collection of HOAs throughout America as “HOA-Land.” It identifies HOA-Land as a nation within America based on its culture, beliefs, values, and commonality of contractual CC&Rs acting as its constitution.
My sequel to HOA-Land Nation, A Plan Toward Restructuring the HOA Model of Governance, another seminal work, presents the case for the restructuring of the HOA model of governance. It seeks to bring the private government HOA into compliance with and subject to the Constitution as required of all local governments.
Part 3 continues examining the need to restructure the HOA model of governance, an introduction to the booklet/eBook, A Plan Toward Restructuring the HOA Model of Governance, and 2 unanswered questions that seek justification for legislatures permitting HOAs to function as independent principalities.
“Restructuring the HOA-Land Nation requires a cultural change in in the way of life of members; and an appropriate change in attitude by state legislatures, the people and the home buying public.”
“The authoritarian nature of HOA-Land is masked by a thorough indoctrination by CAI that presents a false picture that the real estate subdivision is governed under democratic principles, and inappropriately named a community simply because the members are allowed to vote as meaningless as it is.”
“Can private parties enter into contractual arrangements, using adhesion contracts and a constructive notice consent, that serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?”
This final session will be produced in a closed, private ZOOM meeting and will be available online shortly.