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Published in: on July 22, 2015 at 8:01 am  Leave a Comment  

NJ bill A469 a step toward regulatory agency oversight of HOAs?

NJ bill, A469 (former A1730), sponsored by NJ Speaker Pro Temp, Jerry Green, attempts to detail certain state protections for owner-members of HOAs.  Detailed protection is needed as a result of the vague and broad language of the statutes and governing documents that cause 1) unknowledgeable owners who complain to be “blown away” by HOA “officials,” including attorneys, and 2) unnecessary law suits just to clarify language that the HOA attorneys know misrepresent legal doctrine.

For example, “attorney-client privilege” is abused to apply to legitimate corporate records that are not attorney work products; and the misleading, contractual “after notice and opportunity to be heard” phrase regarding complaint hearings that short circuits the legitimate due process protections specifying confrontation of witnesses, providing evidence and the questioning of witnesses by an independent tribunal.

Among other things, the bill addresses due process by DCA (Department of Community Affairs) and fair election procedures, another vague and unspecified process in the governing documents.  It further takes the proactive step, as I’ve alluded to in my writings on HOAs as a government entity, with the pronouncement that, “Any governing documents of an association not in compliance with this section . . .  shall be deemed amended to be in compliance” (C.45:22A-43.c); and “Notwithstanding the provisions of any law to the contrary, a homeowners’ association shall be deemed to have amended its governing documents, including its bylaws” (45:22A-46.e.) (my emphasis).

In addition, additional regulatory powers are granted to DCA, “The Commissioner of Community Affairs shall promulgate any rules and regulations that may be necessary to effectuate the provisions of [this bill]” (C.45:22A-48.b).

Relevant excerpts from this bill can be read at Excerpts.

Some call it government interference in a democratic society.  Others, including yours truly, see it as legitimate police powers of the government to protect its citizens. As stated in this bill in its closing “Statement” (“legislative intent” statement), “This bill clarifies the intent of the Legislature that P.L.1993, c.30 (C.45:22A-43 et seq.) be viewed as an enabling act for homeowners’ associations of non-condominium types of planned real estate developments . . . .” (My emphasis).

In fact, the Planned Community Act states,

 “45:22A-22. Public policy

“The Legislature in recognition of the increased popularity of various forms of real estate development in which owners share common facilities . . .  deems it necessary in the interest of the public health, safety, and welfare . . . that dispositions in these developments be regulated by the State pursuant to the provisions of this act.

“45:22A-24. Administration of act. 4.

“This act shall be administered by the Division of Housing and Development in the State Department of Community Affairs, hereinafter referred to as the “agency.”

Does NJ law make HOAs an arm of the state, state actors, or an unconstitutional delegation of legislative powers to a private entity? 

In short NJ law has created a state regulatory agency and is now proposing to grant it further legitimate authority under its police powers in the “interest of the public health, safety, and welfare.”  An “enabling act,” as the statutes are clearly being designated, is required to grant powers and authority to state agencies.  State agencies are “arms of the state” subject to the 14th Amendment.

If deemed not, then do the NJ statutes provide sufficient control and oversight of private entities by the legislature?  I believe a resoundingly not!  A469 attempts to move in this direction, but more is needed.

I argued this issue in regard to HOAs in general in Supreme Court says corporations cannot be used to evade Constitution and Regulatory agency enforcement of HOA violations.

Supreme Court activism makes new law, just like in HOA cases

The following is relevant to many, many decisions, views and mindsets of the courts in HOA cases. I have encountered such “howevers” and “not applicables” in many HOA decisions. Here is a relevant excerpt of Chief Justice Roberts’ justification for the Court’s Obamacare decision.  My comments are in square brackets “[]”.

“Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under may seem plain “when viewed in isola­tion,’ such a reading turns out to be ‘untenable in light of the statute as a whole.  In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

“Reliance on context and structure in statutory interpre­tation is a ‘subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.’  For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. [Regardless of federal or state]. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.  [The end justifies the means].

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is con­sistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.”

The dissenter Justices wrote:

“The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

What we have here is the making of new law by the majority of Justices, people, choosing to ignore long held legal doctrine on interpreting laws.  We are no longer under the rule of law, but under the rule of man.

I recall Justice Jackson’s analysis of the finality of Supreme Court decisions.

In the 1953 Supreme Court case, Brown v. Allen (334 US 443), Justice Robert Jackson commented,

“We are not final because we are infallible, but we are infallible because we are final.”  

(Jackson was the head of the US delegation to the Nuremburg Trials of Nazi war crimes).


Published in: on June 25, 2015 at 7:24 pm  Comments (1)  

Regulatory agency enforcement of HOA violations

There has always been a secondary mechanism for enforcing civil law violations that homeowners have been told very little about. In fact, the national ‘educational’ business trade organization has fought against this method from time immoral.

The enforcement of civil law can be found in such state (and federal) regulatory agencies as real estate, banking, medical, registers of contractors, bars, hair salons, etc. Except for HOAs.  Why not?

While state legislatures have intentionally avoided explicit delegation of authority to HOAs, their abdication of their constitutional responsibilities by a do nothing, hands-off attitude is an implicit delegation of authority. This failure to protect HOA members has caused much harm and injury to   individual homeowners, and has caused much divisiveness and disharmony within HOA communities. The various state HOA acts are devoid of any effective supervision, control, or oversight and should be declared unconstitutional.  A regulatory HOA agency solves both the constitutional and civil enforcement defects.

Read the complete paper at HOA regulatory enforcement.

Published in: on June 16, 2015 at 7:52 am  Comments (6)  
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AZ Model regulatory HOA agency fact sheet


This proposed bill was adapted from Florida’s SB 1348 (2015) and specifically tailored for Arizona. (It was initially proposed in 2008 by Florida’s Cyber Citizens for Justice,  Its objectives are the creation of a state agency called the Department of Homeowners Associations headed by a Commissioner, and the creation of an HOA advisory board to make recommendations to the Commissioner.  It was modeled along the lines of the AZ Department of Real Estate.

Understand that the bill must specify in detail the powers, authority and procedures to follow in conformance with the law.

The format of the bill follows generally accepted standards for bill drafting.  It uses CAPS for new words and strike-outs for deletes.  These are the important provisions of the bill.  The remainder, in normal formatting, is presented as unchanged wording that must appear as required by bill drafting standards.  Generally, they may be ignored. Each part of the statutes is introduced with “Section n,” not part of the statute, followed by the title of the actual statute being changed, such as “Section 33-1806.” A descriptive, either a “is repealed” or “is added”  in total, or  “is amended” phrase follows. Changes are then presented along with the required unchanged wording of the section.

Adapting to other states. The areas to focus on in order to understand the proposed agency are those, as mentioned above, in CAPS and strike-outs.  They may be incorporated into the statutes of other states as is.  However, no complex bill is without links or references to other statutory sections that relate and bear directly on the validity of the new agency.  These ‘links’ would need to be modified and adjusted, most likely extensively, if the bill is to be introduced outside Arizona.  It requires someone with sufficient understanding of bill formatting and who can work with legislative staff to assist in making these necessary adaptations.

The descriptions given below may contain the advisory, “IGNORE,” which identifies code unique to Arizona and probably needs to be changed if adapting for use in other states.

Understanding the bill, Sec. by Sec.

Note that the bill contains seemingly duplicative changes.  One addresses 33-1200 et seq. (and following) and the other addressing 33-1800 et seq. This is because the 1200 sequence pertains to condos and the 1800 sequence pertains to HOAs (planned units).

Sections 1 and 2 add additional wording to title of existing statutes. IGNORE.

Section 3 adds the Department of Homeowners Associations and establishes the office of an HOA commissioner under Title 41, Chapter 20, 41-2325.  Paragraph (A)(3) defines the duties and powers of the department, including the authority to use the Office of Administrative Hearings (OAH) for dispute resolution. Subsections (B) and (C) present the intent and purpose of the bill.

Section 4 adds the powers of the Commissioner to enforce the condo and HOA statutes, which under subsection (B) includes training and education requirement.  Subsection (C) grants the Commissioner the power to set rules that have the power of law. Many agencies have been granted his power, including the real estate department.

Sections 5 and 6 detail the procedures to follow and powers of the Commissioner to handle complaints and investigate complaints, respectively.

Section 7 specifies the penalties for violating the proposed bill statutes, a requirement absent from HOA governing documents, but required by public criminal law.  It’s a notice requirement.

Section 8 adds the funding requirement of $4/door to support the agency.

Section 9 adds the establishment of the HOA advisory board. Subsections (A) and (B) specify the breakdown of the homeowner dominated board.  Subsection (E) defines the authority to recommend revisions in the best interest of the public.

Sections 10 – 16 specify the procedures regarding HOA disputes and OAH hearings since the existing agency is set to expire in 2019. It just moves current law into a new section of code, Chapter 20.  IGNORE.

Sections 17 and 18 revise linked statutes to the addition of Chapter 20 above.  IGNORE.

Section 19.  Omitted in error.

Section 20 repeals the existing OAH funding.

Published in: on June 14, 2015 at 10:36 am  Comments (2)  
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