The roles of the Supreme Court vs the Legislature

At today’s Senate confirmation hearings of Judge Jackson, an intriguing dialogue took place between Jackson and Senator Lee (Utah).  The topic raised by Lee focused on the role that the Supreme Court is to say what the law is, and the role of Congress (or state legislature) is to say what the law should be creating public policy. The Court deals with the policies set by Congress.

The role of homeowner rights advocates is to say  to the legislatures what the law should be with respect to HOA-Land.  It is not to say that this happened to me and it’s wrong, or my HOA does so and so, which does not rise to the level of setting policy for all HOAs/condos  — no special laws for special entities.

And that’s another area where reform legislation often fails — too local.  Reforms must be broad as to have general concern for the state; as the courts have held from time to time, “This case Involves legal issues of statewide importance.”   And it must be explicitly stated or  implied.

Public policy today is harmful to the private property rights of HOA owners, and to a denial of due process protections and violations of the equal protection of the laws, treating HOAs as if they were independent principalities.  These policies and attitudes have created unjust, bad laws enforced by the courts, and used as precedent for more bad laws.

The cycle ends by advocates addressing the root cause of pro-HOA laws that treat HOA members as second-class citizens, which they are not!

Donie Vanitzian’s murderer  still waiting trial after 4 years

Three days after Xmas on Dec. 28, 2017, L A. columnist and strident homeowner rights activist Donie Vanitzian died at the hands of her husband of 35 years, Tom Foster. She was 67. It was a murder-suicide incident according to the police. Foster was charged with murder and plead “Not Guilty By Reason of Insanity.” The case is still pending with a series of pretrial conferences scheduled for a number of years now, which I believe must be related to his insanity plea.

Please note that criminal court records are accessible by the public either at the courtroom or remotely by means of computers at the courthouse.  This April 22 another pretrial conference is scheduled and I am hoping someone can drop by the courthouse and access the minute/orders and bring us up to date.

The January 2018 British Daily Mail article, describing Foster as “a former British nightclub tycoon,” depicts their relationship.

Many long-time advocates will remember Donie Vanitzian (1950 – 2017) and her strident, outspoken activism displayed in her emails, in her L. A. Times column, Associations, and in her texts: Villa Appalling!: Destroying the Myth of Affordable Community Living, Vanitzian and Glassman (Villa Appalling Publishing 2002); California Common Interest Development — Homeowner’s Guide,  D. Vanitzian (Thomson-West Legal Publishers, Series: The Expert Series (2006).

* * * *

I worked with Donie from 2006 – 2016 on CLRC ‘s rewrite of the Davis-Stirling Act and in defending her, when she called from time to time at wits end,  against attacks by the Evil Empire attempting to remove were LA Times column and to discredit her in general. We fought like hell, along with Elizabeth McMahon (AHRC), to get a member’s bill of rights included in the rewrite but failed. I admired her and had respect for her knowledge and energizer bunny activism.  We chatted in private. She had a JD but kept on failing the Bar exam and I understood why. She did not accept the establishment’s version of justice and the judicial process.  She had those to-the-point views and criticisms of the Evil Empire and its loyal followers.

In 2006 with her help pretending to be doing research as an adjunct professor,  I was able to get a copy of the 400+ page, 8 ½ x 11 The Homes Association Handbook, TB #50 at a cost of $180.  We split the cost. You will not find this document anywhere, not even on Amazon.

You can read the Jan. 7, 2018 L.A. Times tribute to Donie by Andrew Khouri.  Champion of Homeowners’ Rights

In memory of Donie’s dedication to justice, fair play, and to protecting homeowner rights, I would like to list a number of events that I had recorded as a Commentary over the years, and  revealing a number of incidents that I had occasion to record.

·         Realtors: Are they protecting buyers or the HOA? (May 2006)

·         Common Interest Developments – Homeowner’s Guide (Thomson-West) (Oct. 2006)

·         Homes in HOAs are Lifetime Collateral for HOA Survival (Oct. 2006)

·         AB 1921: The CLRC recommended HOA special interest bill (Jan 2009)

·         Why is CAI member firm of Adams Kessler allowing criticism of LA Times HOA column? (Oct. 2011)

·         Is there a CAI game plan to rewrite HOA CC&Rs to restrict member voting powers?  (Feb. 2012)

·         LA Times column: protecting your HOA property (Nov. 2016)

AZ GOV committee hears the voice of HOA members

The Arizona GOV committee meeting on HB 2158 yesterday heard the voice ot the HOA homeowners  — the HOA citizens — on the need for HOA regulation and control of rogue boards. The members heard the horror stories, and were made awareof lack of free political speech as enjoyed by non-HOA members.

The bill passed 7 – 0 with 131 owners submitting their support for the bill, using the RTS (Request to Speak) procedure, while just 3 RTS submissions were against the bill.  This procedure allows the public to submit a short statement for or against a bill, with the option of speaking at the meeting.  All submissions become part of the public record and are accessible by the public.

Here is a sample of the FOR submissions at both  the earlier House (195 FOR; 31 Against) and Senate hearings, by the owners themselves and not just board members:

  • This bill is necessary to prevent the abuse of fundamental rights or free speech and assembly. Please support it.(WD)
  • Homeowners should be able to use all the facilities of the HOA to express their concerns and ideas abou8t HOA business.  Please support this bill. (PF)
  • Please protect homeowners rights to voice their opinions without fear of retribution (KHW)
  • This bill seeks to protect homeowner’s ability to participate in the governance of their communities and to express their support or opposition for board candidates or community ballot measures in an attempt to influence the outcome. (D Legere)
  • It is criminal how HOA Boards are allowed to infringe upon one’s right to assemble/speak and impose their beliefs. (LN)
  • HB2158 will allow homeowners to engage each other over concerns for the betterment of their communities. (SP)
  • Please vote to protect the homeowners right to show support or opposition to HOA Board candidates.  The suppressive measures that our board takes is board line criminal.   (RW)
  • This bill will help empower homeowners to fight against overbearing board of directors. (KC)
  • We need to pass this legislation to protect the right of assembly and to redress the government for those who live in HOAs.  Vote yes for this bill.  (JR)
  • HOA’s should not be allowed to restrict a home owner’s freedom to assembly or free speech. Regardless of which side of the ballot the home owner votes on. (LS)
  • Homeowners are handicapped from effective political participation in HOA governance and fair elections will make a difference. (yours truly)
  • It prohibits HOAs from infringing on Constitutional rights of owners during HOA elections.  Two thumbs up!  (CS)

Yes, ’n’ how many times can a man turn his head Pretending he just doesn’t see?

The answer, my friend, is blowin’ in the wind The answer is blowin’ in the wind

Do you stand behind the US Constitution or your HOA ‘constitution’?

Many courts have referred to the Declaration of Covenants, Conditions and Restrictions (CC&Rs) as the HOA constitution.

Arizona’s HB 2158 is a second try (Arizona HB 2052 restores homeowner constitutional speech protections ) to prohibit restrictions on HOA members’ freedom of political speech with respect to HOA governance issues and matters.  It has passed put of committee and Caucus.

This important bill has been sitting for an extended 2 week time awaiting the House leadership to schedule it for a full House vote of all the members. NOT A GOOD SIGN!  My years of experience lead me to believe it does not have the support of the leadershp that has the right, under House Rules,  to withhold bills from further votes.

HB 2158 (2022). You can read the bill at the legislature’s website. Read the important amendments below. This is your chance to stand up for constitutional protections against the CAI lobbyists, many whose members have been or are SCG directors – conflict of interest!

L. Notwithstanding any provision in the community documents, an associociation [sic] may not prohibit or unreasonably restrict a member’s ability to peacefully assemble and use private or common areas of the planned community . . . . An individual member or group of members may organize to discuss or address planned community business, including board elections or recalls, potential or actual ballot issues or revisions to the community documents . . . . The association shall not restrict posting notices of these informal member meetings on physical or electronic bulletin boards used by the association for posting notices for the association’s or board of director’s official meetings.”

This bill has support from the Nevada Supreme Court opinion in Kosor (NV supreme court upholds HOAs as public forums (re: Kosor 2021)) that contained several California opinions serving as legal precedent.

 “[A] unit owner’s association or a planned community association (association) may not prohibit a unit owner or member (member) from peacefully assembling and using private or common elements of the community . . . legitimate and valid criticisms of your HOA and its president and board are protected from HOA lawsuits of defamation and libel.”

“Nextdoor.com post qualifies as a public forum for the purposes of anti-SLAPP protections. . . .these steps [Kosor’s statements] do not seem to differ significantly from that which might be required to view posts on Facebook; that is, a post on Nextdoor.com is as compatible with expressive activity as one on the other platform, which we have already held can support a public forum.”

“The HOA here is no less of ‘a quasi-government entity’

* * * *

The following is an excerpt from a lengthy email sent to me by a long time AZ homeowner rights advocate, Dennis Legere. It and his email are made public with Dennis’ permisssion.  It  reveals the obstacles an hostiity he faces trying the get HOA reform legislation to restore lost rights and freedoms. It contains his comments on the heavy opposition  from CAI and AACM (AZ managers association, CAI trained).

The ridiculous nature and hidden motivation of the HOA trade groups [CAI and AACM] is what makes any HOA meaningful legislation so difficult to get introduced or protected from demands from the trade groups for provisions that benefit them only.”

Take back controll of your HOA!  Write your Representative in support of this bill. Also write the sponsor, Jack Kavanagh (jkavanagh@azleg.gov) and the House leaders in support of this bill urging that it be submitted for a hearing by all the House members. Do it today!

House leaders:

Rbowers@azleg.gov – Speaker (R)

tgrantham@azleg.gov – Speaker Pro Temp (R)

btoma@azleg.gov – Majority Leader (R)

lbiasiucci@azleg.gov – Majority Whip (R)

rbolding@azleg.gov – Minority Leader (D)

ddegrazia@azleg.gov – Minority Whip (D)

jlongdon@azleg.gov – Asst Minortiy Whip (D)

If only advocates would stand up to CAI

This month, April 18th and 21st,  I posted comments[1] on the dereliction of duty by state legislatures and the need for the DOJ to investigate state legislatures as well as the undue influence by CAI teachings in its School of HOA Governance[2]  Yesterday, the 23rd, it seems that CAI is trying to soften its misleading statements and failure to disclose the whole truth about HOA-Land.  Previously I had commented upon Kelly G. Richardson’s[3]  2020 article  in The Public Record,[4]

“Richardson seems to be saying that indeed a director has a fiduciary duty to the member but that duty to the HOA comes first.   He further warns directors, who have relevant knowledge and expertise, to remain mum and not speak out least he be sued. If the director chooses to speak out as he should do in the best interests of the HOA, ‘the director is not acting as a director but is an unpaid consultant and could be held liable for their advice.’”[5]

In yesterday’s “ HOA Homefront: What surprises lurk in your CC&Rs?”[6]  Richardson added to his attempt to “tell it like it is” revealing some hidden aspects of CC&Rs. (Emphasis added).

“Here are 11 things about CC&Rs that might surprise you, before you read them. 

“CC&Rs bind all owners, regardless of whether they read it, understood it, or received a full copy of it. As a recorded document, CC&Rs are a “covenant running with the land,” meaning a legal commitment attaching to the land and therefore its owners.

“Normally enforced by courts, even if they seem unreasonable. The California Supreme Court ruled in 1994 that CC&Rs are presumed enforceable, with some narrow exceptions (such as if they contradict a law).

Original developer-supplied CC&Rs often are boilerplate with parts not applicable to the community. This is because the developer’s primary interest is to obtain quick approval from the Department of Real Estate to begin selling the homes.

As limits upon owner autonomy, CC&Rs can seem intrusive at times. These limits help to protect neighbors from unneighborly behavior and against properties detracting from the community.”

I must admit he comes clean to a certain degree admitting to some of those hidden aspects of CC&Rs, which the interested parties including legislators and the media should have been made aware prior to any decision-making, or before buying a home in an HOA. Too late after the fact!  Additionally,  Richardson fails to “call for action” — frequently used by CAI chapters — to correct these silent gotchas by adopting my proposed legislation,[7] which plainly says,

“The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes. Legislative dereliction of duty

“Furthermore, any governing documents of an association not in compliance with the above shall be deemed amended to be in compliance, and notwithstanding the provisions of any law to the contrary, a homeowners’ association shall be deemed to have amended its governing documents to be in compliance.

Lesson to be learned

For far too many years advocates and homeowners have failed to rally against the heavy influence of CAI on state legislators and the media, thereby allowing CAI to set the tone unchallenged.  This failure demonstrates a severe weakness to achieve HOA reforms of substance.  It is widely known, and proven countless times in other successful arenas, that legislation is accomplished by means of a widespread outcry by the “victims.”  Former Colorado Senator Morgan Carroll strongly advises her readers,

We elect people to represent our interests, but our elected representatives cannot adequately represent you unless they hear from you. . . . If you don’t participate in your government, then the only remaining participants in the system are legislators and lobbyists.” 

It has been a long time failure by homeowner rights advocates to achieve meaningful, constitutional reforms. For whatever reason for this lack of involvement in a nationally united front, the practical reality has been the continued control and dominance by the CAI School of HOA Governance.[8] 

As an aside, CAI’s March “Call For Action”, “Grassroots Advocacy Initiatives Are More Essential Than Ever,” seems to be desperately seeking more active grassroots  involvement by its members, yet advocates remain silent.

“It is more important than ever for CAI advocates to engage in grassroots activism across the country. CAI believes it’s crucial for our members to tell legislators their stories and help them better understand the need for proper public policy decisions when approaching state legislation regulating community associations.”[9]  

Presently, Colorado’s HB 21-1229 is falling by the wayside as well as Arizona’s HB 2052, resurrected from last year’s SB 1412, both excellent reform bills.  California is facing problems with  SB 391 and in Florida  SB 623 (2020) went into defeat.

If only more had come forward and challenged, criticized, and exposed CAI we would have achieved much, much more.  Richardson’s article offers an excellent opportunity to step up to the plate!

References


[1] See Legislative dereliction of duty: supporting HOAs and   State legislatures must be held accountable for dereliction of duty.

[2] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[3] Kelly G. Richardson: CAI Board of Trustees 2011-2017; Community Associations Institute (CAI), National, President, 2016; College of Community Association Lawyers (CCAL), 2006; CAI’s California Legislative Action Committee, Chair, 2009, 2010; National Association of Realtors; California State Bar Association, Real Estate & Litigation Sections.

[4] HOA Homefront: Fiduciary Duty – What It Is, And Is NOT,

[5] CAI School faculty advice – managing HOAs.

[6] The Press-Enterprise, News, Housing, Opinion (April 23, 2021).

[7] See for example, Legislative dereliction of duty: supporting HOAs.

[8] Supra n. 2.

[9] See Grassroots Advocacy Initiatives Are More Essential Than Ever .