Stare decisis – promoting bad HOA statutes

Stare decisis was a very big issue in today’s SCOTUS hearing on Roe v. Wade.   Should this long held precedent be supported or not followed for reasons of “bad law” as argued by some.  The principles governing  stare decisis are, as should be expected, very complicated, so here’s the short of it as best I can determine.

Alexander Hamilton explained that “[t]o avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.”   But it is not a “mechanical formula” or “not set in stone.” The issues dealt with “strong grounds” because “the Court’s willingness to overrule its past decisions is the only way to correct an erroneous constitutional interpretation.”  Was the precedent wrong in the first place (as now being argued with Roe)?  Whether “less harm will result from overruling the decision than from allowing it to stand?

Advocates must make the courts realize that most of the HOA statutes in every state must be overruled on constitutional grounds.  Otherwise, homeowners will never be able to rise out of the muck and recapture true US citizenship.

The people at CAI working against member interests

CAI Advocacy Blog for 11/23/2021, email (Click on this link to see state members).

Thank you to these incredible volunteer leaders and CAI members. Wishing you, your family, and friends a Happy Thanksgiving. We’re so thankful for you!

Government and Public Affairs Committee
Mr. T. Peter Kristian, CMCA, LSM, PCAM

Ms. Sally L. Balson
Mrs. Marilyn E. Brainard
Mrs. Wendy Bucknum, CMCA, AMS, PCAM
Ms. M. Katherine Bushey, Esq.
Mr. Joseph Carleton, Esq., CCAL fellow
Mr. Joseph Crawford, CMCA, AMS, PCAM
Ms. Sandra K. Denton, CMCA, LSM, PCAM
Ms. Jennifer Eilert, CIRMS
Mr. Michael Johnson, CMCA, AMS, PCAM
Mr. John Krueger
Ms. Lisa A. Magill, Esq., CCAL fellow
Mr. Nathan R. McGuire, Esq.
Ms. Janet L. Newcomb
Mr. Matt D. Ober, Esq.
Mr. Scott J. Sandler, Esq., CCAL fellow
Mr. Todd A. Sinkins, Esq., CCAL fellow
Ms. Wendy W. Taylor, CMCA, AMS, LSM, PCAM
Mr. Michael Laurence Traidman
Mr. Craig F. Wilson Jr., CMCA, AMS, PCAM
Mr. Ronald L. Perl, Esq. CCAL fellow
Mr. J. David Ramsey, Esq., CCAL fellow
 

Federal Legislative Action Committee
Mr. Ronald L. Perl, Esq., CCAL fellow
Mrs. Pamela D. Bailey, CMCA, AMS, PCAM
Mr. Jeffrey A. Beaumont, Esq., CCAL fellow
Mrs. Marilyn E Brainard
Mrs. Wendy Bucknum, CMCA, AMS, PCAM
Mr. Robert M. Diamond, Esq., CCAL fellow
Mr. Andrew S. Fortin, Esq.
Mr. T. Peter Kristian, CMCA, LSM, PCAM
Ms. Lisa A. Magill, Esq., CCAL fellow
Mr. Stephen M. Marcus, Esq., CCAL fellow
Mr. George E. Nowack Jr., Esq., CCAL fellow
Mr. J. David Ramsey, Esq., CCAL fellow
Mr. Stefan Richter, Esq., CCAL fellow
Mr. Clifford J. Treese, CIRMS

Champlain Tower South Task Force Leadership and Committee Contributors
Ms. Lisa Magill, Esq., CCAL fellow
Mr. Bob Browning, PCAM, RS
Mr. Mitchell Frumkin, RS
Mr. Robert Diamond, Esq., CCAL fellow
Mr. Stephen Marcus, Esq., CCAL fellow
Ms. Jennifer Eilert, CIRMS
Ms. AJ Scott, CIRMS
Mr. Phil Masi, CIRMS
Mr. Cliff Treese, CIRMS

(The following underlined are NOT links. See above link.)

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The post Happy Thanksgiving: Feeling Grateful for CAI Volunteer Advocacy Leaders appeared first on CAI Advocacy Blog.

HOA boards are not required to uphold member fundamental rights

Folks, time for a reality check. You know I’ve repeatedly argued for constitutional protections and getting only slip-service.  As Prof. Evan McKenzie wrote in 1994 (Privatopia: Homeowner Associations and the Rise of Residential Private Government,

“CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local governments.” 

Many of your complaints, here and on other websites, reflect this reality of an authoritarian government that coerces consent.  HOA boards are not required to uphold member fundamental rights; neither are they obligated to be fair, just, understanding, or compassionate. HOAs are NOT public governments with these implied obligations.  It does not have to be that way! 

See HOA Common Sense and The HOA-Land Nation Within America.

Common Sense

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.

“Without fair elections procedures that contain enforcement against HOA board wrongful acts, including retaliatory acts and intimidation by the board, voting in an HOA is a mockery of democracy.  Is this HOA government better than public government?  Common sense tells us no!”

HOA-Land Nation

“Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties or punishments for violations of state laws or the governing documents?  Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.

 “The much touted HOAs are democratic because members can vote is utterly without merit?  Fair elections protections, as compared with those in the public arena, do not exist under a corporation law.  Members do not have equal access to HOA newsletters, website, member lists, and use of common amenity meetings rooms, among other denials.” 

DEMAND CONSTITUTIONAL AND FUNDAMENTAL PROTECTIONS!  Demand your legislators support such a bill as proposed HOA constitutionality bill.

proposed HOA constitutionality bill

“Now is the time for all good homeowner advocate leaders to come to the aid of member-owners”

 living in HOAs and suffering abuse, financial and emotional distress as a result of BODs being  protected by Arizona laws. These abuses are easy to understand and support! (See HOA Common Sense: rejecting private government and The HOA-Land Nation Within America).

A quick and simple — but highly effective — bill that was proposed in March 2011 and will bring relief to homeowners being treated a second-class citizens by state laws in support of the HOA legal scheme. It was ignored by Arizona advocates and dismissed by the Legislature.

“No provision of any contract or any declaration of covenants, conditions, and restrictions . . . is enforceable in this state unless the party seeking to enforce the provision proves by clear and convincing evidence that 1) the provision being enforced was knowingly and voluntarily agreed to by all parties . . . . Any representation or statement offered as clear and convincing evidence . . . shall include a signed statement containing the following, beginning with “I understand that I can ask that the following be read and explained to my satisfaction.”

So reads an excerpt from my proposed “Truth in HOAs” statute that should be made law in each and every state. That is, if indeed the legislature stands by the Declaration of Independence and the US Constitution, which we are hearing so much about in the media nowadays.”

The “The Truth in HOAs Act,” as I called  it,  allows each state to modify the proposal in accordance with its state HOA/condo acts — shown in square brackets [].  Also, subsection (3) contains a list of acknowledgements  that can be tailored to each state’s advocate lobbying efforts.  See Arizona Truth in HOAs statute (pvtgov.org).  The essential bill section is contained in subparagraph (4).

Therefore, in reference to subsection 3(d) above, the CC&Rs or Declaration for any planned community, condominium association or homeowners association shall state that, “The association hereby waivers and surrenders any rights or claims it may have, and herewith unconditionally and irrevocably agrees to be bound by the US and State Constitutions and laws of the State as if it were a local public government entity.

 The real estate subdivision or condominium will not be affected by requiring HOAs to join with other forms of local government and be subject to the Constitution as a home rule entity.  See HOAs violate local home rule doctrine and are outlaw governments.

This 2022 legislative session offers a unique, one-time opportunity to get the message across and to educate the legislators. Remaining silent on the issues only plays into the pro-HOA hands of CAI and offers excuses by the media not to cover HOA abuse.  Not only will you find “ammunition” in support of your arguments as contained in the 2 above publications, but also in my Arizona Supreme Court  amicus brief filed and accepted in Tarter v. Bendt (see note (vi) in Can HOA members expect justice in Arizona courts?).

My arguments are summarized in the Commentary.  As is my approach, my arguments are supported by legal authority and hard evidence documents, which CAI ignores and YOU lose!  They must be exposed if the legislators are to be fully informed on the reality of HOA-Land.  As leaders who are internet publishers,  actions speak louder than words!

 

Publications on HOA constitutionality and legal structure

Peter F. Drucker was an internationally renowned management consultant in the 50s and author of the management “bible,” The Practice of Management. “A classic since its publication in 1954, The Practice of Management was the first book to look at management as a whole and being a manager as a separate responsibility.” Bob Woodward you should know. 

View publications here: Amazon.com: George K Staropoli: Books, Biography, Blog, Audiobooks, Kindle