Who prosecutes for homeowner justice against HOAs?

 

April 12, 2010

Rep. L.

Arizona House of Representatives

                                                                                            email letter

 Dear Rep. L,

I’d like to thank you and your assistant for contacting me in an attempt to assist the xxxx with their condominium issues.  I had followed their earlier Petition with the now “dismissed” Office of Administrative Hearings back in March 2007 — one of the first cases to be heard by OAH. 

I spoke with Bob and reviewed his materials sent to me, and the zzzz CC&Rs.  My earlier criticism of Bob’s complaints to OAH stand today:  most constitute dissatisfaction with the performance of the board and/or property manager, but are not actionable in court (I am not a lawyer). The ALJ in 2007 found it to so, but did act on one of the 12 issues submitted to OAH for adjudication.  Bob won, and the condo association was given a $500 punitive penalty.

Sad to say, I cannot help him.  Under present legal conditions, no one can, or will be able help him attain justice — court costs, pro-HOA state laws, and an adhesion CC&Rs “contract” favoring the HOA all put the odds on the HOA’s side. I am speaking not about the dissatisfaction issues, but the real violations of state laws and the governing documents. Bob must spend his own money, like so many other homeowners, in order to obtain justice against lawbreaker associations.  While state laws make fines and foreclosure against homeowners legal, they do nothing to punish violator associations and management firms. 

The statutes do little to protect the homeowner.  He is treated with disrespect and indignity as a second-hand citizen. On one hand the statutes are “telling” the people it is of general public interest and benefit to get “deadbeats” to obey the governing documents, and to pay those assessments.  But, on the other hand, complaints against the association are dismissed as a private matter without appropriate enforcement — a class 2 misdemeanor, for example — and are not a public concern for the legislature. This failure to punish lawbreakers when it comes to associations amounts to a dual standard against the people in favor of private entities that function as authoritarian de facto private governments.

The adjudication of HOA complaints by OAH had leveled the playing field somewhat, providing attainable —”affordable”, to use a term used to defend the state’s protection of HOAs — justice, where the homeowner could go before an independent tribunal, without a lawyer and without the need to know the 100 odd rules of civil procedure contained in some 200 pages of “legalize.”  The constitutionality of the statute was not defended by the Attorney General, or by the legislative leadership, resulting in a superior court disgraceful default decision. Consequently, Bob comes before you and pleads for relief, because there is no place to go, not even to the OAH where he could once hope to have found justice.  In the short history of OAH, pro per homeowners won 42% of their petitions against their HOA and its attorney.

I’m sorry to say that, after 10 years as a homeowner rights advocate, the Arizona Legislature has created and continues to permit this shabby treatment of many good citizens, including Bob, by failing to enact HOA reforms. Reforms with enforcement against the association and a bill of rights to protect homeowners.

Respectfully,

George K. Staropoli

Government of the people, by the people, for the HOA

 

The following email letter from Mr. Brown to the Arizona legislative leaders reflects his concern about democracy in America.  (For more information on this HOA bill, please see public streets: the battleground for private or public government control).   

hoa constitution
hoa constitution

My dear President Burns, Chairman Tibshraeny, Vice-Chairman Harper, Members of the Senate Government Institutions Committee, Senator Bunch, Representative Barto, Co-Sponsors of HB2153 and Representative Barnes:

“From time to time we read in the newspapers, or hear on the radio, about policies and procedures and practices in the Arizona legislature. Most often that which we read or head is critical of how the legislature goes about its business. Words such as “fair” and “open” and “level playing field” are used, as if to imply that the legislature should operate in a significantly different manner that it does.” Senator Randall Gnant, “From Idea…..To Bill…..To Law, The Legislative Process in Arizona,” February 2000

The Guest Opinion, “Who controls public streets,” Arizona Capitol Times, April 1, 2010, is on-point re the proposed HB2153 legislation as well as the global issues respecting associations’ control of property not owned by an association, associations’ control of the conduct and actions of Arizona citizens clearly not subject to the association’s governing documents and associations’ coveted power and dominion over homeowners subject to the association’s governing documents, the sacrosanct “private contract.”

Association stakeholders opposed to HB2153 regularly blur the lines between their long-held belief in “private contracts” not to be interfered with by federal, state, county and/or municipal governments and certainly not the legislature unless and until it suits the stakeholders and their client associations’ interests as evidenced by associations’ growing reliance on “what can government do for” stakeholders and associations today. (See Community Resource, Issue 1 / 2010, “What Your Local Government Can Do For You,” Community Associations Institute / Central Arizona Chapter, attached)

“Getting a hearing on a bill is a crucial first step for individual citizens, lobbyists, special interest groups and state agencies..in the Senate, bills that receive a hearing have a high likelihood of passing the full Senate. So, while failure to secure a hearing is a virtual disaster for a bill, getting a hearing takes a bill on the longest step towards becoming law.” (Gnant)

Please include HB2153 on the Committee On Government Institutions’ agenda, Consideration of Bills, permitting the peoples’ representatives in the Senate to vote on the bill’s passage as your brethren in the House, the people’s other representatives, did so on February 17, 2010 (43/14/03).

Respectfully,

William M. Brown