The need to regulate CAI monopoly

To answer to the question I raised, Is CAI a coercive HOA monopoly?,” required further research and analysis, which resulted in  finding extensive and strong evidence, gathered from over the years, that CAI is definitely acting in violation of the anti-trust statutes; steps need to be taken to break up the monopoly.  Below are my recommendations to regulate CAI’s activities to allow for the voice of others to be heard, especially from owners of HOA homes who suffer under the monopoly.

A.       Regulations on CAI monopolistic activities

1.       CAI to cease all references and implications that it represents HOAs before the legislature, all government bodies, before the courts and including amicus curiae briefs without express consent to do so;

2.      Require CAI to state that it is a business trade nonprofit, explicitly a 501(c)6 and not an educational entity;

3.      Inform readers that it cannot have HOAs as members since HOAs are consumers of the services provided by the trade group members;

4.      It is actively engaged in lobbying state legislatures on bills favorable to the HOA  and not necessarily to the membership;

5.      Inform owners and the public in general that its attorney members represent the HOA personified by the Board of Directors and not the member.

B.    Regulations on HOA activities in support of CAI monopoly

1.       Similar to representing employees in bargaining with management, propose federal laws that permit and protect HOA members to organize its membership to bargain in good faith for amendments to the governing documents and Rules changes;

2.      Propose legislation that allows for the creation and protection of a national HOA Homeowners Coalition, similar in intent as the National Labor Relations Board (NLRB);

3.      To restrict the HOA from interference with the newly established  organized national and state  member entities;

4.      Quarterly inform the membership of the number of directors, officers, managers, and attorneys who are members of CAI;

5.      Publish the total annual amount of spending for CAI dues paid for any HOA members, donations, other fees, and expenditures paid for by the HOA;

6.      Inform the membership that all communications with their attorney are not exempt from disclosure by state law,

7.      and all communications with the HOA attorney constitutes corporate documents that are accessible to the members, unless explicitly exempted under  “Pending or contemplated litigation” apply;

8.     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.”

Undue influence of CAI on HOA

I posted this in reply to a simplistic Nextdoor post that wrote that HOAs are governments:

Yes, HOAs and SCG are not simply nonprofits, charities, or for-profit entities. They are, in a complete description, a contractual, private government allowed to function outside constitutional protections under the guise that the members openly and with full knowledge agreed to surrenders and waivers of their rights under the US and state Constitutions.

I suggest concerned people seeking the truth read my simple pamphlet, “HOA Common Sense: rejecting private governments” as a starter. We can then have a meaningful discussion of the issues. It’s on Amazon for just $3.00 Kindle edition.

Or go to https://pvtgov.wordpress.com and search on Common Sense. A preface can be read here Preface to HOA Common Sense. SHALL WE MOVE AHEAD IN A MEANINGFUL MANNER?

Arizona’s landmark fair elections, free speech law on HOA governance

On Sept. 25, 2022, Arizona’s new HOA reform law (Session Law Ch, 125; HB2158),  bringing substantive free public speech on HOA governing issues and establishing a fair elections procedure, will become effective.

This is a major step forward to the application of Constitutional equal protection of the laws and proper due process as guaranteed to all US citizens. Under this bill, effective and meaningful opportunity for Arizona members to participate fairly and in an equal manner in the governance of an HOA.

It starts with the ability to campaign and discuss governing issues with the members on the same level playing field. All the members seeking change have to do is to get involved knowing they won’t be “fighting city hall” without legislative support. The “tools” are there for members to stand up and fight for their rights. No one else will do it for you! Especially your board of directors.

As James Madison wrote in The Federalist Papers #51: “If angels were to govern men, neither external nor internal controls on government would be necessary.” HOA boards for the most part have demonstrated that they are indeed not angels.

I congratulate the bill sponsor, Rep. John Kavanagh, and all advocates who supported this bill and the Arizona Legislators coming to understand the need to stop board of director’s abuse under authoritarian private agreements.

The intent and purpose of this law are highlighted below :

“‘association-specific political sign’ means a sign that supports or opposes a candidate for the board of directors or the recall of a board member or a condominium ballot measure that requires a vote of the association unit owners.

The details specify the rights of members and prohibitions on the BOD regarding these signs. Furthermore,

“association may not prohibit or unreasonably restrict a unit owner’s ability to peacefully assemble and use common elements of the condominium [or HOA];

“group of unit owners may assemble to discuss matters related to the condominium [or HOA], including board of director elections or recalls, potential or actual ballot issues or revisions to the condominium documents, property maintenance or safety issues or any other condominium matters . . . .”

Relevant sections of HB 2158

The relevant sections of the new law can be read here: HB 2158;  Ariz. Sess. Law Ch 125 (2022). An audio version on Spotify can be heard here: https://spotifyanchor-web.app.link/e/mqz2Fe4Dytb

HB 2158;  Ariz. Sess. Law Ch 125 (2022)

Reformatted for ease of comprehension. New law is shown in blue caps according to legislative rules. The law duplicates the provisions separately for Condo (ARS 33-1600 et seq.)  and Planned Community HOA (ARE 33-1800 et seq.)  statutes.

ARS 33-1261 (p. 3 – 4)

H. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS,

  • AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT THE INDOOR OR OUTDOOR DISPLAY OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN
  • BY A UNIT OWNER BY PLACEMENT OF A SIGN ON THAT UNIT OWNER’S PROPERTY, INCLUDING ANY LIMITED COMMON ELEMENTS FOR THAT UNIT THAT ARE DOORS, WALLS OR PATIOS OR OTHER LIMITED COMMON ELEMENTS THAT TOUCH THE UNIT, OTHER THAN THE ROOF.
  • AN ASSOCIATION MAY ADOPT REASONABLE RULES REGARDING THE PLACEMENT, LOCATION AND MANNER OF DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS,
  • EXCEPT AN ASSOCIATION SHALL NOT DO ANY OF THE FOLLOWING:

1. PROHIBIT THE DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS BETWEEN THE DATE THAT THE ASSOCIATION PROVIDES WRITTEN OR ABSENTEE BALLOTS TO UNIT OWNERS AND THREE DAYS AFTER THE CONDOMINIUM ELECTION.

2. LIMIT THE NUMBER OF ASSOCIATION-SPECIFIC SIGNS, EXCEPT THAT THE ASSOCIATION MAY LIMIT THE AGGREGATE TOTAL DIMENSIONS OF ALL ASSOCIATION-SPECIFIC SIGNS ON A UNIT OWNER’S PROPERTY TO NOT MORE THAN NINE SQUARE FEET.

3. REQUIRE ASSOCIATION-SPECIFIC POLITICAL SIGNS TO BE COMMERCIALLY PRODUCED OR PROFESSIONALLY MANUFACTURED OR PROHIBIT USING BOTH SIDES OF THE SIGN.

4. REGULATE THE NUMBER OF CANDIDATES SUPPORTED OR OPPOSED OR THE NUMBER OF BOARD MEMBERS SUPPORTED OR OPPOSED IN A RECALL OR THE NUMBER OF BALLOT MEASURES SUPPORTED OR OPPOSED ON AN ASSOCIATION-SPECIFIC POLITICAL SIGN.

5. MAKE ANY OTHER REGULATIONS REGARDING THE CONTENT OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN, EXCEPT THAT THE ASSOCIATION MAY PROHIBIT USING PROFANITY AND DISCRIMINATORY TEXT, IMAGES OR CONTENT BASED ON RACE, COLOR, RELIGION, SEX, FAMILIAL STATUS OR NATIONAL ORIGIN AS PRESCRIBED BY FEDERAL OR STATE FAIR HOUSING LAWS.

* * * *

J. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS,

AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT A UNIT OWNER’S ABILITY TO PEACEFULLY ASSEMBLE AND USE COMMON ELEMENTS OF THE CONDOMINIUM IF DONE IN COMPLIANCE WITH REASONABLE RESTRICTIONS FOR THE USE OF THAT PROPERTY ADOPTED BY THE BOARD OF DIRECTORS.

AN INDIVIDUAL UNIT OWNER OR GROUP OF UNIT OWNERS MAY ASSEMBLE TO DISCUSS MATTERS RELATED TO THE CONDOMINIUM,

* * *

 1. “ASSOCIATION-SPECIFIC POLITICAL SIGN” MEANS A SIGN THAT SUPPORTS OR OPPOSES A CANDIDATE FOR THE BOARD OF DIRECTORS OR THE RECALL OF A BOARD  MEMBER OR A CONDOMINIUM BALLOT MEASURE THAT REQUIRES A VOTE OF THE ASSOCIATION UNIT OWNERS.

ARS 33-1808 (p. 7 – 8)

K. NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS,

  • AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT THE INDOOR OR OUTDOOR DISPLAY OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN BY A MEMBER BY PLACEMENT OF A SIGN ON THAT MEMBER’S PROPERTY.
  •  AN ASSOCIATION MAY ADOPT REASONABLE RULES REGARDING THE PLACEMENT, LOCATION AND MANNER OF DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS,
  • EXCEPT AN ASSOCIATION SHALL NOT DO ANY OF THE FOLLOWING:
  • PROHIBIT THE DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS BETWEEN THE DATE THAT THE ASSOCIATION PROVIDES WRITTEN OR ABSENTEE BALLOTS TO MEMBERS AND THREE DAYS AFTER THE PLANNED COMMUNITY ELECTION.
    • LIMIT THE NUMBER OF ASSOCIATION-SPECIFIC SIGNS, EXCEPT THAT THE ASSOCIATION MAY LIMIT THE AGGREGATE TOTAL DIMENSIONS OF ALL ASSOCIATION-SPECIFIC SIGNS ON A MEMBER’S PROPERTY TO NOT MORE THAN NINE SQUARE FEET.
    • REQUIRE ASSOCIATION-SPECIFIC POLITICAL SIGNS TO BE COMMERCIALLY PRODUCED OR PROFESSIONALLY MANUFACTURED OR PROHIBIT USING BOTH SIDES OF THE SIGN.
    • REGULATE THE NUMBER OF CANDIDATES SUPPORTED OR OPPOSED OR THE NUMBER OF BOARD MEMBERS SUPPORTED OR OPPOSED IN A RECALL OR THE NUMBER OF BALLOT MEASURES SUPPORTED OR OPPOSED ON AN ASSOCIATION-SPECIFIC POLITICAL SIGN.
    • MAKE ANY OTHER REGULATIONS REGARDING THE CONTENT OF AN  ASSOCIATION-SPECIFIC POLITICAL SIGN EXCEPT THAT THE ASSOCIATION MAY PROHIBIT USING PROFANITY AND DISCRIMINATORY TEXT, IMAGES OR CONTENT BASED ON RACE, COLOR, RELIGION, SEX, FAMILIAL STATUS OR NATIONAL ORIGIN AS PRESCRIBED BY FEDERAL OR STATE FAIR HOUSING LAWS.

* * *

M. NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS,

  • AN  ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT A MEMBER’S ABILITY TO PEACEFULLY ASSEMBLE AND USE COMMON AREAS OF THE PLANNED COMMUNITY IF DONE IN COMPLIANCE WITH REASONABLE RESTRICTIONS FOR THE USE OF THAT PROPERTY ADOPTED BY THE BOARD OF DIRECTORS.
  • AN INDIVIDUAL MEMBER OR GROUP OF MEMBERS MAY ASSEMBLE TO DISCUSS MATTERS RELATED TO THE PLANNED COMMUNITY,
    • INCLUDING BOARD ELECTIONS OR RECALLS, POTENTIAL OR ACTUAL BALLOT ISSUES OR REVISIONS TO THE COMMUNITY DOCUMENTS, PROPERTY MAINTENANCE OR SAFETY ISSUES OR ANY OTHER PLANNED COMMUNITY MATTERS.
    • A MEMBER MAY INVITE ONE POLITICAL CANDIDATE OR ONE NON-MEMBER GUEST TO SPEAK TO AN ASSEMBLY OF MEMBERS ABOUT MATTERS RELATED TO THE COMMUNITY.
    • THE ASSOCIATION SHALL NOT PROHIBIT A MEMBER FROM POSTING NOTICES REGARDING THOSE ASSEMBLIES OF MEMBERS ON BULLETIN BOARDS LOCATED ON THE COMMON AREAS OR WITHIN COMMON AREA FACILITIES.
    • AN ASSEMBLY OF MEMBERS PRESCRIBED BY THIS SUBSECTION DOES NOT CONSTITUTE AN OFFICIAL MEMBERS’ MEETING UNLESS THE MEETING IS NOTICED AND CONVENED AS PRESCRIBED IN THE COMMUNITY DOCUMENTS AND THIS CHAPTER.

O. For the purposes of this section: ,

1. “ASSOCIATION-SPECIFIC POLITICAL SIGN” MEANS A SIGN THAT SUPPORTS OR OPPOSES A CANDIDATE FOR THE BOARD OF DIRECTORS OR THE RECALL OF A BOARD MEMBER OR A PLANNED COMMUNITY BALLOT MEASURE THAT REQUIRES A VOTE OF THE ASSOCIATION MEMBERS.

CA bill AB 1410 –  a step backwards for HOA homeowner rights

In 2018, California Civil Code §4515 was a major step in restoring fundamental protections for free speech by members with respect to HOA governing issues.

“(a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.”

AND JUSTICE FOR ALL

Now, AB 1410 seeks to restrict these rights under the guise, it seems, that the HOA website is private and therefore it can adopt restrictive rules legally. In a typical “what you see is not what you get” maneuver, the bill would grant the HOA the power to moderate message content in strict opposition to legal holdings — that content based free speech is protected and any editing must be unbiased.

The bill sections start with §4515,

“(b)  The governing documents, including bylaws and operating line 4 rules, shall not prohibit a member or resident of a common interest line 5 development from doing any of the following:”

But watch out, what is granted is now removed under (b)(6) subparagraphs (B) and (C), and especially (D). In a “flip-flop,” designed in my view to confuse the average homeowner, it then informs the homeowner that he is still protected because the HOA must follow the rules it is attempting to circumvent. (pp. 93-94).

What’s the point? To make  it difficult for homeowners to understand the legislation and their rights all well knowing that those in power will only cite the pro-HOA points and omit the pro-homeowner protections.

GOTCHA AGAIN! Don’t fall for it!

This attempt by Rep. Rodriquez feels like an anti-slapp move if it were in the courts — an action to stifle free speech. Marjorie Murray presents 2 instances of where an anti-slapp motion can and should be used against the HOA. Contact Murray (info@calhomelaw.org) for more information.

Center for California HOA Law opposes the bill and urges Californians to contact their representatives and Judiciary Chair by phone. The committee will hear this bill this week.