HOA-LAND, a lesson for politicos surprised by Imperial Presidency

 

Why are the politicos so surprised at this inevitable turn of events with Imperial President, Donald the Trump, here in the bastion of democracy?  Maybe because they have long ignored the fact that 23% of Americans live in HOA-LAND, where authoritarian governments rule the people outside the fundamental social contract knoTrump-henry8wn as the US Constitution.

For years, the politicos and state legislatures have denied that these HOA-LAND governments are de facto governments stripping their people of constitutional protections on the flimsy argument that the people openly and willingly agreed to live under such conditions.  Irrelevant and without merit! This issue is first and foremost a constitutional question!

The very nature of the Declarations of Covenants, Conditions, and Restrictions (CC&Rs) and state laws protecting and defending HOAs are ab initio (from the very start) invalid and unconstitutional.  Everything else that follows in notwithstanding.  Yet, as an example, the Arizona Legislature passed HB 2411 this past session and the Governor signed the bill. It is facially – just read the words – a violation of the Arizona Constitution, Article 4, Part 2, Section 13.

But, who cares?  Certainly not state legislatures, nor the media that has kept its place and remained mum, nor the public interest constitutional “protector” entities.  Nobody cares, and so we have HOA-LAND imperial dictatorships posing as democracies.  “Imperial” because the very legal structure of HOAs does not permit the effective and genuine functioning of a democracy.

Published in: on May 17, 2017 at 10:20 am  Comments (5)  

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

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

State of Arizona ignores its constitution on HOA bill, HB 2411

The News Observer and  US News quote AZ Governor Ducey in regsard to HB 2411,

“I have signed H.B. 2411, however, because it promotes transparency and participation for all residents in homeowners’ association governance.”

What a nice, safe, political answer that appeals to the people using the CAI mantra of “no government interference,” yet avoids the black and white fact that HB 2411 violates the AZ Constitution.
HB 2411 contains 2 subjects but only 1 in the title, thus violating the Arizona Constitution Article 4, Section 13, Part 2.  It is a repeat of the 2013 SB 1454 bill that also violated the constitution in this manner and was found unconstitutional and invalid after a court challenge was filed (Staropoli v. State of Arizona, CV 2013-009991).
For details, see emails AZ Senate calling this violation to their attention (similar email was sent to the AZ House), at http://wp.me/p3njZ-1sU. Below is my April 25 email to Governor Ducey:

“Dear Governor Ducey:

“In 2007 then Governor Napolitano vetoed the HOA homestead protection bill, SB 1330, on the constitutional grounds that the bill “violates the single subject rule” of the AZ Constitution. That was the first clause of Section 13; HB 2411 is the second clause.

“Your decision to not veto this unconstitutional HOA bill in violation of the constitution’s Article IV, Part 2, Section 13 (only 1 subject in a bill) — similar to Rep. Ugenti’s HB 2371/SB 1454 in 2013 that the court declared invalid and unconstitutional (Staropoli and Brown v. State of Arizona, cv13-09991 (Maricopa County Superior Court 2013) — would further the appearance of impropriety and create the impression that the people come last in Arizona.

As I wrote the House,

‘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.’

Please veto HB 2411.
It is quite apparent that not only is there a “tyranny of the legislature” in Arizona, but the Governor acts in an imperial manner echoing, ‘let them eat cake’. I repeat, ‘There can be no excuse or justification for passing this bill, except to support a personal agenda from the HOA vendor members of CAI.” 

An email documentation to this effect  exists and Governor Ducey was so informed by another homeowner rights advocate.

Published in: on April 29, 2017 at 7:40 am  Comments (5)  

We don’t want no stinkin’ government protection for HOA members

This California Adams-Davis-Stirling newsletter (“California’s Leader in Community Associations Law”) says it all.  Speaking to a new federal law as of October 2016 (that applies to all states), Code of Fed. Reg. §100.7(a)(1)(iii)),

  1. “The law requires that boards take prompt steps to investigate and end harassment.
  2. This intrusion by the federal government into the affairs of homeowners associations is unprecedented.
  3. The burden the new regulations create will likely outweigh any intended benefits regulators had in mind.
  4. Associations are not cities with paid city council members, police forces, and governmental immunities.
  5. Making boards an arm of the federal government is going to make it harder to recruit and keep volunteers on boards.”

 

Items (1) and (5) make the HOA a state actor due to the mandatory “order” to investigate harassment complaints relating to Fair Housing laws. Item 5 deals with one of the fundamental flaws of the HOA legal scheme — unpaid and untrained volunteers with no local government experience to run HOAs.  What would you expect?  You get what you paid for.  That’s a gold mine for HOA attorneys, who have created these pro-HOA state laws and adhesion contract CC&Rs.

Item (4), while HOA boards have no government immunities they hide behind the business judgment rule that says let the board decide, not the courts, in effect giving immunities.

The author, Adrian Adams, recommends that “Boards should work with legal counsel to adopt anti-harassment rules for their associations.”  “Should” is not “shall” and not mandatory.  It is an “ought to” that requires no compliance and carries no enforcement actions.

The HOA attorneys do not want government interference since it really would interfere with their domination of HOA boards: Seek advice from the people who know best, your HOA attorney.  It is a self-serving recommendation to generate more income for the attorneys, who have repeatedly failed to serve the beneficial interests of the HOA membership.

“We don’t want no stinkin’ government protection for HOA members”!  If not, who then?  You can’t have your cake and eat it!

Since the state legislators have failed to act, it becomes necessary for the Feds to protect the people. See The FEDS must restore law and order in secessionist HOA governments and Getting the Feds involved in HOA reforms.

Published in: on April 18, 2017 at 9:38 am  Comments (19)  

Rogue AZ Senate violates AZ Constitution

In a unanimous 30 – 0 vote the AZ Senate approved HB 2411 even though it contains 2 subjects but only 1 in the title, thus violating the Arizona Constitution (emphasis added):

Article 4, Section 13, Part 2:

  1. Subject and title of bills

Section 13. Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.

 

The bill violates the constitution, and the Senators well know it.  It is a repeat of the 2013 SB 1454 bill that also violated the constitution in this manner and was found unconstitutional and invalid after a court challenge was filed (Staropoli v. State of Arizona, CV 2013-009991).  They cannot hide behind the “all laws are presumed constitutional” doctrine when the bill is facially unconstitutional and such a violation was supported in the courts with the Attorney General, for the State, so admitting.

Based on the foregoing, the Court determines that the provisions of SB 1454 enumerated above that relate to planned communities/homeowner associations violate Article 4, pt. 2, § 13 of the Arizona Constitution and are void and unenforceable.

This unanimous vote can only be viewed as a concerted and cooperative effort pushed by the leaders of both parties.  I see it as a dangerous example of the tyranny of the legislature (“The tyranny of the legislature is really the danger most to be feared,” Thomas Jefferson letter to James Madison in Federal Papers #51) and a total disregard of the law.

The Senators seemed to have circled the wagons, saying: Try to tell us our job? Hah! We are everything!  You, the people, are nothing!   Take that!  Sue us again!

Will the Arizona House reject the Senate bills?  I think not.  It’s a top-down act by the legislative leaders with the legislators following orders.

 

Published in: on April 13, 2017 at 6:42 pm  Comments (7)  
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