Ethical issues with overzealous HOA lawyers

Speaking of what motivates most HOA defense lawyers, I get the feeling that they firmly believe any complaint against an HOA will constitute a crack in the dam.  They seem to act like a decision favorable to the member, especially on issues of substance and constitutional rights, will place HOAs on the slippery-slope to an outbreak of successful court decisions affecting the very survival of the HOA legal scheme as we now know it.

Consequently, they have adopted an attitude of a criminal lawyer whose client is facing the death penalty, and that they must act with all guns blazing in defense of their HOA client.  Any tactic and technique to save the HOA from its impending doom is ethical.  Even crossing the line at times as many of us have personally witnessed.

In 2005 I wrote about Arizona State Bar attorney, and former Chair of the Disciplinary Commission of the Arizona Supreme Court, David Dodge’s article regarding ethical considerations in aiding and abetting the clients (See HOA ethics: vigorous performance or collusion?).  He wrote,

However, the court said, the privilege of rendering professional services is not absolute, and lawyers should not be free to substantially assist their clients in committing tortious acts. The way to protect lawyers in these cases, the court suggested, was to strictly interpret the common law elements of aiding and abetting the alleged breach of a fiduciary duty, as found in the RESTATEMENT, which requires “substantial assistance or encouragement” by the lawyer

Dodge’s chief charge is that the lawyer “wrongly advised his client.” He warns the lawyers about,

non-clients to whom a lawyer can be liable, even in situations in which the client is not acting as a fiduciary. . . . Lawyers are now permitted to disclose facts that will prevent or rectify harm done by their clients to others while using the lawyer’s services.

Read “clients” as HOAs and potential “non-clients” as homeowners.

Do not be afraid of filing against the HOA attorney for ethical violations as set forth in your state’s Supreme Court Rules of Professional Conduct, Rule 42 with all its E.R.s (ethical rules).
(more…)

Published in: on June 5, 2017 at 6:13 pm  Comments (4)  

Defining HOA-LAND: what it is

With all the controversy and flap in Washington about the Constitution, I realized that I never really defined the term. I have been using the term “HOA-LAND” as far back as 2007 and continuously since. (Homeowner Associations: ex post facto amendments, consent to be governed, contracts to avoid the Constitution   (Oct. 24, 2007)).

Definition of HOA-LAND:

HOA-Land is a collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States.

A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.  The common, binding element of HOAs is its organic law foundation, from which flow all state laws and the declarations of CC&Rs boilerplate, is based on The Homes Association Handbook of 1964.

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.

An organic law is a law, or system of laws, that form the foundation of a government, corporation or any other organization’s body of rules. A constitution is a particular form of organic law for a sovereign state. The US has indeed a set of documents constituting its organic law.

Published in: on May 29, 2017 at 10:02 am  Comments (12)  

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)