Where have all the HOA constitutional lawyers gone?

Many of you who are interested in the hidden truth about HOA-Land are probably aware of the AARP report on member bill of rights written by David Kahane in 2006. You are probably unaware of the 2006 AARP amicus curiae brief filed in favor of the Twin Rivers, NJ homeowners.[i] 

This landmark brief references Evan McKenzie, the Hannaman Report,[ii] CAI’s Wayne Hyatt  (former president and designer of many governing documents especially for Del Webb properties),[iii] a 1989 Intergovernmental study on HOA private governments, and the Restatement Law: Servitudes.  Co-attorney on the brief was Steven Siegel who wrote several legal journal articles on HOA constitutionality (1998 and 2008).[iv]

Where have all our lawyers gone? Long time passing. 
Where have all our lawyers gone?  Long time ago. 
Where have all our lawyers gone?  C A I beat them everyone.

Oh, when will we ever learn?  Oh, when will we ever learn?[v]

I’ve always found this very troublesome. They have the credentials; we don’t!  Complaining and shouting, We was robbed; this ain’t fair; this is not right; I have rights falls on deaf ears at the legislatures. Advocates have failed to make the case for the existence of a nationwide problem where legislatures permit the denial of homeowners’ fundamental and constitutional rights and freedoms, privileges, and immunities.  And the courts look the other way for the most part. 

And when reform bills of substance do make it into law, homeowners for the most part still remain silent and ignore the laws that give them fighting powers – laws passed recently in California, Nevada, Arizona, North Carolina, New Jersey, and Washington state.

References

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[i] AARP_amicus.pdf

[ii] See Rutgers Panel on Homeowner Association problems (pvtgov.org).

^[iii] To be or not to be a mini or quasi government? Hyatt said ‘yes’.

[iv] Steven Siegel, “The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty years After Marsh v. Alabama,” Wm & Mary Bill of Rights J., Vol. 6, Issue 2 (1998). And The Twin Rivers Case: Of Homeowners Associations, Free Speech Rights and Privatized Mini-Governments, Paula A. Franzese and Steven Siegel, 5 Rutgers J.L. & Pub. Pol’y 630 (2008).  Part of the issue on Homeowner Associations: Problems and Solutions.

[v] Paraphrase Where Have All the Flowers Gone, Peter, Paul and Mary.

Court requires constitutional due process in HOA foreclosures

The enlightenment and awareness that the US Constitution and its due process requirement extends to private government HOAs is gaining momentum. ”The writing is on the wall.”

In the recent Colorado appellate decision in Hummel (C&C Investments v. Hummel, 022COA42, April 14, 2022)  concerning proper notice of homeowner foreclosure by the HOA, the court surprisingly acted sua sponte —in the name of justice. The courts have repeatedly failed to invoke, in the pursuit of justice as it claims to be its fundamental purpose, its right to act sua ponte — on its own — raising discussions of issues not raised by either party.  

In Hummel the question arose as to whether or not the homeowner was given notice of impending foreclosure action by the HOA.  The HOA send a processor server who said he posted the notice in the newspaper, which is allowed under certain circumstances. She discovered her plight only when an eviction notice was pinned to her door. The question be determined was, What is proper, legal service?

While court rules require that the HOA serve notice, the court held that it “must also meet the mandates of due process before foreclosing on an individual’s property” and that,

“[I]t is not unreasonable to require a homeowners association to make a good faith, rather than a highly technical, effort to effectuate actual notice to a fellow neighbor before foreclosing on their property.”

In support of its opinion, the Court referenced the Colorado appellate court’s court view:

“Although an association is not the government, it serves “quasi-governmental functions” when enforcing covenants and must abide by the due process requirements of the United States and Colorado Constitutions.“

“[T]he United States Supreme Court has long held that when foreclosing a lien against an individual’s home, due process requires “notice [that is] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

The appellate court found that the trial court failed to adhere to these principles before ordering a default judgment.

AZ fair election bill HB 2158 moves on

Arizona HB 2158 passed the Senate GOV committee 8 – 0. YES!

I congratulate the speakers supporting this bill who told horror stories and made substantive issues of unconstitutional actions by HOAs.   It was a broad bill to establish fair election and voting procedures concerning HOA governance issues.

I call to everyone’s attention my “Mgmt Case Studies” 1 and 2 reveal deep violations of the laws and governing documents by large HOAs.  Worth reading at https://pvtgov.wordpress.com

Preface to Restructure HOA Supplement

Preface

“People could care less about the truth. People buy promises and dreams. They’ll do anything to avoid reality” (anonymous)

The above quote, reflecting human nature,  gets to the very heart of the HOA-Land problem. It applies not only to SCG but to all HOA members throughout America.  In a sarcastic Nextdoor  post, the writer expressed his feelings that my posts were, in my words too cute, and that he didn’t want “to be in an association that George had anything to do with . . . and take his trouble making rhetoric to other lucky people.” I responded:

“My HOA right or wrong! So what if it has violated state laws and the governing documents, and refuses to defend itself. So what! As long as the amenities keep coming and assessments stay low, I guess all is OK.”

I have high hopes that all HOA members will follow their conscience and do what is right for their community, their state, and for America.  The alternative is a rejection of our democratic institutions, our constitutional government,  and the principles and values that we, as Americans, stand for.  The alternative is an acceptance of the HOA-Land Nation Within America.

* * * *

For this case study, my objective was to unveil the truth and advise the BOD of a $22 million revenues, 9,500 unit, active-adult community in Arizona as to its conduct in deciding difficult and controversial  issues.  I put my management/BOD skills to work and began the study. It is very important in the learning process to share recommendations with others, and to accept their constructive criticism. Readers can reject, modify, or remove recommendations. This approach sharpens one’s thinking and helps to make a more solid case for HOA reforms.

In regard to the SCG members at large — apathy evidenced by silence or perhaps fear — prevailed as commonly found in HOA-Land. The vast majority of comments  to my posts on social media and elsewhere were irrelevant and without merit. They failed to address my messages concerning  violations of the laws and governing documents by boards of directors.   Rather, they focused on my HOA right or wrong, take it or leave it, and move out. 

 The necessary first step for democratic reforms, as proposed in A Plan Toward Restructuring the HOA Model of Governance, is the reorientation and reeducation of the pubic and especially boards of directors. Based on my experience I presumed that  they are uninformed and many prefer to remain uninformed; wrongly believing, and being led to believe,  that their HOA is  a wonderful country club instead of a legally binding contract between them and their HOA. 

The findings from this research reaffirmed this view of HOA directors and members regardless of income or education levels — they are highly uninformed about the legal and governmental issues of an HOA association. It seems that the  boards of directors over the years were and are heavily influenced by the Community Associations Institute’s teachings and programs.

Collectively referenced as the CAI School of HOA Governance  stemming from its focus on “large-scale associations,” such as SCG. Some 13 SCG members served as CAI members, including CAI presidents or directors, while serving as SCG’s presidents, directors, and committee chairs.  Its impact is devastating and cannot be underestimated.

This finding was very disappointing!  The behavior and conduct by the leadership displayed false and misleading information, an illusion of “no problems here,” and for the most part, silence. It supported the position of authoritarian and cult followers as maintained in the Plan’s view of the HOA Culture, and its description of the social and political dynamics at work in HOA-Land.

This Supplement is organized in time sequence based on posts made to the HOA Constitutional Government website, including comments,  referencing or alluding to emails, to  the official Sun City Grand website’s News of the Day posts; and to posts and comments to social media websites: NextDoor (Desert Sage); Facebook’s Sun City Grand Members (AZ), closed by Administrator’ opposition; and Members of Sun City Grand AZ.

These exchanges are all reproduced as is, unedited except for  omissions of non-relevant sections.  In this manner, lacking audio-video materials, one can get a feeling of the posters’/commentators’ message tone.

George K. Staropoli

February 14, 2022

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.