`Please pass SB 1470, homestead protection for the people.
History of Homestead Exemption HOA Exclusion (SB1470)
In 2004 ARS 33-1806(3)(h) was added to the mandatory disclosure requirements, requiring a buyer to sign an acknowledgment that he agrees to the loss of his homestead exemption (now $400,000). Just one year later, in 2005, the statute was again amended to remove any reference to the loss of the homestead exemption. In 2007 Governor Napolitano vetoed the homestead exemption bill on a flimsy argument – to many subjects.
Today, ADRE (real estate dept) still does not inform consumers of the loss of their homestead exemption.
In 2007 I wrote, in part,
“They [CAI] raise the issue of a consensual agreement, the unsigned CC&R ‘agreement,’ which, under Arizona statutes, is an exception to the application of the homestead protection. The author of the S/E amendment to the bill, Representative Farnsworth, made quite clear that ARS33-1807(A), which opens with, ‘The association has a lien . . . .’ (emphasis added), is a statutory lien and not a consensual lien – the homeowner has no choice in the matter whatsoever.
“Any reference to a consensual lien must come from a voluntarily entered agreement, and, not from a statute. Our concern here is the alleged CC&Rs consensual agreement that may contain a provision for an agreement to a lien for unpaid assessments and the right to foreclose. No CC&R that I have been made aware of mentions a surrender or a consent to the loss of the homestead exemption. No real estate purchase agreement that I am aware of mentions an agreement to surrender the homestead exemption. The CC&Rs have been held as binding, not as a consensual agreement per se, but by the application of the doctrine of constructive notice, or the simple posting to the county clerk’s office.”
This is the Legislature’s second chance to restore the equal protection of the laws to homeowners in HOAs. There is no justification for denying homestead protection when.
ARS Title 33, -Ch. 8
33 – 1101. A. Any person the age of eighteen or over, married, or single, who resides within the state may hold as a homestead exempt from attachment, execution and forced sale, not exceeding $400,000 in value, any one of the following:
1. The person’s interest in real property in one compact body upon which exists a dwelling house in which the person resides.
2. The person’s interest in one condominium or cooperative in which the person resides.
33-1103. Homestead exemption; extent of exemption; exceptions
A. Real property that is subject to the homestead exemption provided for in section 33-1101, subsection A is exempt from involuntary sale under a judgment or lien, except in connection with:
1. A consensual lien, including a mortgage or deed of trust, or contract of conveyance.
33- 1256; 33 – 1807. A. The association has a lien on a unit for any assessment levied 14 against that unit from the time the assessment becomes due.
SB1470 (Feb. 13, 2023)
C. Subsection B of this section does not affect the priority of
10 mechanics’ or materialmen’s liens or the priority of liens for other
11 assessments made by the association
The lien under this section is not
12 subject to chapter 8 of this title.