NH bill, SB 324, seeks OAH to hear HOA complaints as AZ

It has been a long time in coming since Arizona, under the Administrative Procedures Act, provided for the Office of Administrative Hearings (OAH) to hear complaints between homeowners and their association.  After some 16 years, a NH bill also seeks OAH processing of HOA complaints.

Arizona House bill HB 2824 became Ariz. Sess. L. Ch. 324 2006. After several CAI attempts to have it declared unconstitutional, the statute was modified: Ariz. Sess. L. Ch. 185 2011 (SB 1148, Andy Biggs, sponsor, now US Senator Biggs). I had initiated this approach to HOA due process and justice for homeowners in 2005 meeting with the then OAH Director and recommending OAH to Rep. E. Farnsworth. 

I also engaged in the CAI lawsuits that oppossed OAH and filed a pro se amicus curiae brief with the AZ Supreme Court in Gelb v. DFBLS.  The result was an order to the appellate court, which supported unconstitutionality, that its opinion is inadmissible as precedent, defeating CAI’s attempts.

Today, I am pleased to see, some 16 years later, that SB 324 has been introduced before the New Hampshire General Court of New Hampshire (as its legislature is named), calling for  the hearing of HOA and condominium complaints by means of NH’s APA /OAH statutes.  It has some interesting differences in that the complaints are not submitted to the real estate department but to   a Dispute Resolution  Board whose members are appointed by the Governor as basically all other agencies appointments are made.

That’s good news to hear! It’s another pro-member bill to restore constitutional and fundamental rights and freedoms to citizens living in HOA-Land. 

Why HOA members fail in court – failing to know the enemy

In Nuclear Verdicts, not specifically addressing HOA cases and speaking to defense attorneys, author and defense attorney Tyson sees the failure to succeed  as a failure of the defendant to get angry.  “YOU are the solution to what has been wrong with our legal system.”  In keeping with the mission of a homeowner advocate’s cry of “fightclub,” Tyson’s Nuclear Verdicts’  mission “is about fighting individuals and groups who are attempting to take advantage of our legal system.  There are people every day who make false and exaggerated claims . . . .”   

I have applied his general statements to HOA-Land.  Tyson is quite on the mark with the many instances of HOA attorney conduct in the courtroom.  And on the failure of homeowners to appropriately and strongly respond. “Bad lawyering [on the part of the homeowner’s attorney] is much more common” than the HOA attorney’s “stretching their claims beyond what is real and verifiable.”  The homeowner attorney  “is surprised, or unprepared, or just not as good as the” HOA attorney. Tyson sums it all up with, “So how do you fight injustice? First of all you need to get angry! You need to stop complaining and do something about it.? 

. . . .

I have read dozens of trial and appellate court cases and opinions across the states, and have personally witnessed the conduct of HOA attorneys and board members in court. My research is consistent with Tyson’s position. I offer my own views for those seeking to go to court to take heed of, and to just DO IT!

My conclusions as to why homeowners lost in court fell into several causes, the chief being the failure to know the enemy, as Sun Tzu wrote in the Art of War. Other causes, as I saw them, 1) insufficient evidence and documentation provided to the court, 2) failing to state a claim, in other words, the HOA broke no laws or violated the governing documents but just exercised its discretion as was its right, 3) attorney lack of expertise and knowledge of HOA  case history, and 4) member afraid to argue the case as warranted for one reason or another.

I possess, as well as on other advocate websites including CAI’s pages on it amicus briefs and case history reviews, a wealth of information on knowing the enemy. Failing to provide this information to your attorney that will enhance your chances of success and to lessen his “learning time,” saving you money, can harm the chances of your winning in court.

“YOU are the solution to what has been wrong with our legal system.”

I’d like to thank Sonia Bendt for understanding this need to cooperate and work together, and who sent me Tyson’s book realizing it would be very helpful to all homeowners going to court.

Robert F. Tyson, Jr, Nuclear Verdicts: defending justice for all, Law Dog Publishing (2020).