Americans deserve to know why state legislatures support HOAs

Why do state legislatures support, promote and defend HOAs?  Americans want to know why!

I have uncovered only one formal, legal and explicit statement of purpose and intent behind state legislators’ love of HOAs.  I am not speaking of the anecdotal defense and propaganda by CAI and its stalwarts, but the legitimate general government interest of your state legislature.  The one exception can be found in Colorado’s Revised Statutes, CRS 38-33.3-102 (2016)[i].

Please read the declaration of intent below and answer the following questions.  You need not publish your answers if you do not wish to do so.

 

Q1.       Overall, what do you see as the real intent of Colorado’s support of HOAs?

Q2.      Do you believe that the Colorado statutes, UCCIOA, “is in the best interests of the state and its citizens”?

Q3a.    Does Colorado’s economic prosperity depend “upon the strengthening of homeowner associations . . . with statutory assessment liens . . . enhancing the financial stability of associations by increasing the association’s powers to collect delinquent assessments, late charges, fines, and enforcement costs”?

Q3b.      In other words, do HOAs rise to a level of national and Colorado security concern whereby the survivability of HOAs present “a clear and present danger,” warranting restrictions and prohibitions of constitutional protections?

Q3c.       Let’s assume for a moment that HOAs do present a Colorado security concern in that the survivability of Colorado depends on the acceptance and survivability of HOAs.  If so, then the imposition of “military rule” that suppresses fundamental rights and freedoms is justifiable.

Q4.      Is this declaration’s assumption that HOAs provide safer loans and a safer, more predictable basis because of standardized practices and prudent insurance and risk management obligations” valid?

 

I think advocate and the public should demand a response from their legislative leaders setting forth the WHYS.  You have the right to know.  And by asking, the state must reply.

 

Reference

[i] C.R.S. 38-33.3-102 (2016)

38-33.3-102. Legislative declaration

(1) The general assembly hereby finds, determines, and declares, as follows:

(a) That it is in the best interests of the state and its citizens to establish a clear, comprehensive, and uniform framework for the creation and operation of common interest communities;

(b) That the continuation of the economic prosperity of Colorado is dependent upon the strengthening of homeowner associations in common interest communities financially through the setting of budget guidelines, the creation of statutory assessment liens, the granting of six months’ lien priority, the facilitation of borrowing, and more certain powers in the association to sue on behalf of the owners and through enhancing the financial stability of associations by increasing the association’s powers to collect delinquent assessments, late charges, fines, and enforcement costs;

(c) That it is the policy of this state to give developers flexible development rights with specific obligations within a uniform structure of development of a common interest community that extends through the transition to owner control;

(d) That it is the policy of this state to promote effective and efficient property management through defined operational requirements that preserve flexibility for such homeowner associations;

(e) That it is the policy of this state to promote the availability of funds for financing the development of such homeowner associations by enabling lenders to extend the financial services to a greater market on a safer, more predictable basis because of standardized practices and prudent insurance and risk management obligations.

Published in: on March 5, 2017 at 1:34 pm  Comments (5)  

AZ House committee fooled into rejecting HOA attorney fee restraint – SB1289

Dear Arizona House LIA Committee members:

Allow me to clarify the background of this bill, SB 1289, as I, a non-lawyer, see it.

There is a notorious case ((Terravita) in which an HOA amended its CC&Rs to specifically be awarded attorney fees if it won a hearing before OAH Office of Administrative Hearings).  This covenant in the CC&Rs flies in the face of existing law and should have been rejected by the HOA’s attorneys who are CAI members.  In Semple v. Tri-City Drywall (1992) the court held,

May the trial court pursuant to ARS 12 341.01(A) award to the prevailing party attorney’s fees incurred in the proceedings before the Registrar of Contractors? We hold that the statute does not provide for such an award . . ..” [1]

In Brown v. Terravita [2] the AZ appellate court held,

we have found no authority -including the plain language of the statute — to support the notion that the Legislature intended to integrate A.R.S. § 33-1805 as part of the declarations, bylaws, articles of incorporation, and rules of all planned communities.”

However, this decision was ignored, apparently, by the CAI attorneys. Terravita’s 2013 CC&Rs amendment flaunted Arizona law.

“Attorneys’ Fees in Administrative Proceedings. In the event the Association incurs legal expenses and costs . . . in an administrative action or proceeding, including but not limited to, proceedings before an Administrative Law Judge, and any appeal thereof, the Association shall be entitled to recover its attorneys’ fees . . . if the Association is a prevailing party in such action . . . .”  (Article XVII, Section 17.08(4) Terravita CC&Rs).

This is a prime example of the use of a private contract to get around constitutional protections, like the equal protection of the law and due process.  The bill would prevent HOA attorneys from amending CC&Rs to bypass state laws, and claim legitimacy because of the private contractual nature of the CC&Rs.  The bill prohibits any such CC&Rs provisions.

The HOA amendment procedure makes use of the “deprivation of owner rights” amendment clause in the CC&Rs whereby a person’s property rights are damaged without his consent.  Another private nature of HOAs that stands in sharp contrast to constitutional protections against eminent domain takings and the 14th Amendment.

Only a judge can award attorney fees!  In Brown the court acknowledged this covenant, “That provision authorized fee awards to prevailing parties in actions instituted to enforce the CC&Rs.” The covenant was not addressed by the court as Brown did not claim a violation of the CC&Rs, but of state law.

Now comes CAI strongly opposing SB 1289, apparently seeking to prohibit the use of this private contractual devise to bypass constitutional protections.     SB 1289 prevents the (OAH) Administrative Law Judge and Commissioner from awarding attorney fees to HOAs. It has long been the policy and law of OAH not to award attorney fees, as attorneys are not required.  But, HOAs like to hire attorneys and if the HOA loses, who pays the attorney?  Attorney fees are awarded by civil courts if the complaint involves a contractual dispute and the contract allows for attorney awards.  General favoring the HOA and silent if the homeowner wins.

Here are those CAI/AACM members plus CAI stalwarts who opposed the bill (from the RTS records).  Only 4 affiliations are not identified. AACM is the CAI trained managers in the CAI School of HOA-Land:

“Kathe Barnes, Self(01/31/2017); Jason Barraza, AZ ASSN OF COMMUNITY MANAGERS (AACM)(02/01/2017); Kayte Comes, Self(02/01/2017); Quinten Cupps, Self(02/27/2017); Kevin DeMenna, COMMUNITY ASSOCIATIONS INSTITUTE(01/31/2017); Ryan DeMenna, COMMUNITY ASSOCIATIONS INSTITUTE(01/31/2017); Connor Doyle, Self(02/28/2017); Mary Jo Edel, Self(02/28/2017); William Eisert, Self(02/27/2017); Carolyn Goldschmidt, Self(01/31/2017); Clint Goodman, Self(02/06/2017); Julia Holland, Self(02/27/2017); Mark Holmgren, Self(02/07/2017); Matthew Johnson, Self(02/24/2017); Spencer Kamps, HOME BUILDERS ASSOCIATION OF CENTRAL AZ(02/01/2017); Lynn Krupnik, Self(01/29/2017); Mark Lane, Self(02/01/2017); Linda Lang, Arizona Association Of Community Managers(02/01/2017); Brian Morgan, Self(02/01/2017); Jeff Sandquist, AZ ASSN OF COMMUNITY MANAGERS (AACM)(02/01/2017); Vicki Sears, Self(02/01/2017); Adrianne Speas, Self(02/01/2017); Mark Wade, Self(02/01/2017);”

Unstated affiliations:

Barnes (CAI member), Comes (CAI chapter staff), Cupps (CAI member), Doyle (CAI member), Edel (CAI member), Wisert, Holland (CAI member), Holmgren, Johnson, Krupnik (CAI lawyer), Lane, Morgan (CAI lawyer), Sears (CAI member), Wade (CAI chapter president).

 Unidentified as CAI lawyers: Goldschmidt, Goodman, Krupnik, Speas, and Morgan.

 

Notes

  1. Semple v. Tri-City Drywall, 838 P.2d 1369 (Ariz. App. Div.1 1992).
  2. Brown v. Terravita, CA-CV 14-0455 (Ariz. App. Div. 1 2015).

 

 

Published in: on March 1, 2017 at 4:52 pm  Comments (2)  

AZ SB 1240 FAILED today – facially unconstitutional

AZ SB 1240 FAILED today–

The bill that to me was blatantly unconstitutional failed in the House vote: 13 – 17. All Dems voted against except Mendez, and 5 GOPs voted against.

I’d like to thank those who opposed the bill, and I hope more decisions in support of homeowner justice lie ahead not only in the Arizona Legislature, but in all state legislatures.  AZ HOAs, or any citizen, has the right today to petition the planning board for a variance; the bill was not necessary and superfluous.

It also contained too broad a grant of powers to “government entities,” whoever they may be, to control and regulate public streets, if the government entity approved. Much, much too broad for a bill that the sponsor said was noting more than a request for a variance.

For more information, see Rebuttal to sponsor’s interpretation of AZ SB 1240 and Another AZ HOA bill constitutionality challenge looms: SB 1240.

Published in: on February 22, 2017 at 4:54 pm  Leave a Comment  

political comment: removal of president — 25th Amendment

Have you read the 25th Amendment lately?  With the wild, wild Washington, DC goings on, let me remind everyone about the ability to remove the President.  Section 4 of the amendment reads, in part (my emphasis),

“Whenever the Vice President and a majority of either the principal officers of the executive departments . . .  transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

Can this really happen?  Depends on Trump’s continued conduct and perception by the people.  Depends on the meaning of “unable,” which could be physical or psychological.

Published in: on February 19, 2017 at 8:49 am  Comments (4)  

HOA-Land success aided by the failure of investigative reporting

In 2010 I called attention to a curious aspect of media coverage of HOAs.  I called it the “Unspoken Alliance of ‘No negatives about HOAs.’”[i]  Of course, state legislatures did not believe that there were serious problems with HOAs as there was no news to report.

The pro-HOA lobbyist special interest national lobbyist, CAI, also saw and reported no evil with HOA-Land, while lauding the grand and glorious benefits of HOA-Land. CAI ignored the suppression of homeowners’ rights and freedoms under the Constitution, which other citizens still enjoyed. And then there are those public interest firms swearing to defend the Constitution, but who also saw no evil and reported none.

With all these news stories about homeowner issues across the land, no one really took a deep look into what the hell was happening.  The reporters have not delved into such questions as:  How come this is happening? Why is this happening?  And asking policy makers and legislators, what are you doing about it?  And following up to any responses such as, they agreed to the contract, and questioning the validity of such responses.  That’s what the public expects from bona fide investigative reporting.

Why I wondered? It seemed that an Unspoken Alliance was the best answer. How else could this silence be explained?  That the horror stories and legal arguments supporting violations of the Constitution and state laws were fairy tales, just myths by delusional people?  That’s a “put-down” to good, decent people.

Today, Michael Smerconish saw the same problem in his morning CNN show with news coverage when he said,

“Where there’s no investigative reporting, government on the national, state and local level goes unchecked. . . .  But without investigative journalism at the local, state and national level we would have never learned about . . .”[ii]

While he was not addressing HOA-Land, his opinion sheds light on why HOA reform legislation has not really accomplished much over the past 53 years since the inception of the HOA legal scheme.[iii] I whole heartedly agree.

Edward R. Murrow and Walter Cronkite are not sleeping too well with today’s lack of deep investigative reporting. Where are the Woodward and Bernsteins, and Lowell Bergmans of CBS’ 60 Minutes (the tobacco/nicotine cover up)?  I think too much political correctness muddied the water – don’t say anything bad about anyone. And so, the legislators hide behind, “I dunno” and “I know nothin.’”

There is more than sufficient documentation and legal authority out there for a probable cause investigation into the truth about HOA-Land, and who better than the media’s real investigative reporters to let the people know the truth.

“The Truth Is Out There”

References

[i] The Unspoken Alliance: “No negatives about HOAs”.

[ii] Michael Smerconish, “Trump Wrong to Call . . .”, CNN Feb. 18, 2017.

[iii] Analysis of The Homes Association Handbook.

 

Published in: on February 18, 2017 at 12:52 pm  Comments (8)  
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