Homeowner price for justice and enforcement

Stan Hrincevich, President of the Coloradohoaforum.com, wrote a YourHub, Denver Post opinion on May 4^th, HOA homeowner’s rights and voting rights of yesteryear.  Stan severely criticizes HOA justice for homeowners and the inequality of the financial costs to obtain justice.

“You have the right to vote but now you have to pay a poll tax and can’t afford to vote. . . . However, this seemingly fair mode of governance ensuring the rights of the homeowner and HOA is as much an illusion as ensuring voting rights in the late 1800s accompanied by the poll tax. HOA justice for homeowners is a pay-to-play enforcement system. If one has deep financial pockets, time, and legal resources, one can pursue one’s rights under their HOA governing documents. Others without such resources cannot.”

He recommends non-judicial hearings which, I assume, would include stronger enforcement of the decisions and the law than currently today in Colorado and in every other state. Implied is a reduced cost to homeowners  – the removal of the present day poll tax. 

I’ve also argued that the current status of HOA justice has the same effect as if it were a poll tax (made unlawful by LBJ in 1964)[1]. But the real obstacle to homeowner justice is the lack of state enforcement of HOA board violations of the law and the governing documents.  The vast majority of the reform laws rely on the good will of the HOA board and its attorneys to act in good faith with the intent of the law.  However, the conduct and acts of the HOAs and their attorneys has demonstrated that this reliance is unfounded. They should be held accountable as if they were municipal government employees.

“If there is no penalty [for] disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.”    (Alexander Hamilton, Federalist #15)

“Your HOA board (BOD) is unaccountable under state laws with trivial, if any, penalties, or punishments for violations of state laws or the governing documents?  Without meaningful enforcement to hold BODs accountable and to serve as a detriment to continued violations, you are forced to sue just to get compliance.”[2]

I strongly agree with Stan, reform can only come from the legislature enacting just laws and removing pro-HOA laws.

Notes.

1. Poll Tax postings on HOA Constitutional Government. To say that a homeowner can go to court for a redress of grievances would be like saying that there was nothing wrong with the 1950s Poll Tax abomination, used as an effective, legal at the time, devise to stop voter registrations. (April 2010 Letter to NC House Select HOA Committee); In the late 1950s the Southern states enacted a Poll Tax and instituted certain “tests” in order for citizens to be eligible to register to vote.  No federal or state laws were violated, since the states were permitted to determine the methods for registering citizens, so long as it was not based on race (15th Amendment).  Of course, the tax was set at a level very few Blacks could afford to pay (Dec. 2008, Goldwater Institute: separate and unequal constitutions for HOAs);  Civil action amounts to a bar against justice much as the imposition of poll tax in the South in the 1950s used to prevent blacks from registering to vote. Justice for the average homeowner cannot be had a price which he cannot afford while the association is allowed to use member dues to hire a lawyer (June 2006, Where’s California’s Homeowners Bill of Rights?

2.      See HOA-Land Nation “Did you know?” Part 2 (2019).

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.”

Authoritarian HOAs and AZ SOS Fontes on American authoritarianism

In January 2022 I summarized my earlier works on authoritarianism in HOAs as a natural consequence of authoritarianism in America.[1]

I came to the conclusion in 2019 that there was a rise in authoritarianism throughout the world including America. And with HOA-land[2] constituting of some 23% plus of Americans, authoritarianism was also well rooted in the HOA form of governance. 

“The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. ‘There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.’” (Authoritarianism in the HOA-Land Nation (2019)).

There is a mass psychology present in HOA-Land. Mass psychology is a study of how your behavior is influenced by large groups of people — “birds of the same feather flock together.” It is the result of the longtime conditioning and indoctrination into identifying with the principles and beliefs promoted by the CAI School of HOA Governance. ( Mass Psychology and Cult Behavior Within HOA-Land (2020)).

Arizona Secretary of State-Elect, Adrian Fontes

In MSNBC interview on Nov.17, 2022, the Arizona Secretary of State-Elect had the following to say about Americans .[3]

“Election deniers . . . we need to call them authoritarians because they don’t believe in the democratic process.  They don’t believe in the consent of the governed. This is  so soundly an authoritarian movement when you look at the people who care about democracy, who care about the function of our government.”

“The people have spoken. There is an authoritarian movement in America, it may be loud . . . but it is dangerous, and we must continue to push back against it with vigor. . . . We have to become better citizens across the nation . . . we have to understand the fundamental structure [of government] better.”

Asked by the interviewer what can you do as secretary of state,  

“I have begun to work with . . . members of the Arizona Legislature . . . we got to be bigger than the problem, we got to be working together, to help people understand that we are all in this together.  You have to set your partisanship aside and work together toward common ends.”

“That’s the kind of leadership that folks like me have to set.   We got to reach out and show the American public that . . . cooperation will open up more avenues of conversation and that’s how we as leaders can set the example.”

Restructure the HOA model of governance

I have stepped outside the box to offer the boards of directors (BOD) a fresh view of the nature and legalities of the HOA legal scheme. StarMan Group HOA Management Consulting believes that the HOA legal model of government must be restructured to establish the climate and culture of the HOA enabling the restoration of the lost constitutional principles of democratic government — individual rights, justice, and fair play — for its members within the confines of a private contractual government.

The HOA model of local government is a fourth type of local government in addition to the public domains of commission, council-manager, and council-mayor forms. I ask: Is there a legitimate, bona fide reason and justification for the HOA to function outside public government?   No, there is none!

It goes without saying that private HOA governments must be restructured to return to the Union and restore member rights, freedom, privileges, and immunities.[4]

The task before the new Arizona administration

In 2006, HB 2824 (Ch.324), sponsored by Rep. Eddie Farnsworth, established OAH hearings of HOA disputes, followed in 2011 by SB 1148 (Ch. 185), sponsored by Senator Andy Biggs to revise HB 2824 to deal with constitutionality challenges by the trade group, CAI, and 11 years later Arizona now has HB 2158 (Ch. 125), sponsored by Rep. John Kavanagh, allowing for a more meaningful, democratic voice of the members in HOA government.

Hopefully, Fontes will apply his concerns about authoritarian America to that 23% of the population directly subject to authoritarian, contractual, private local government known as HOAs. Hopefully, the to-be-elected Attorney General will identify with Fontes, and they will exert strong influence on the new administration to correct the past legislative ills of supporting, co-operating, encouraging, and protecting the HOA legal structure.

Hopefully, the newly constituted Arizona Legislature will  restore fundamental and constitutional protections, especially due process and the equal protection of the law, to citizens living in homeowner associations.

Notes

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[1] Authoritarianism in America; authoritarianism in HOA-Land (2022).

[2] Some 23% of Americans live in HOA-Land, that collection of fragmented independent principalities known, in general, as HOAs. HOAs are separate, local private governments not subject to the constitution, and collectively constitute a nation within a defined geographical region known as the United States.   “A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.”

[3] We Must Push Back Against Authoritarians, Says Arizona’s Secretary Of State-Elect – Bing video.

^[4] Restructuring the HOA model, George K. Staropoli, StarMan Publishing  (2020).

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

Homeowners do not have HOA ‘eminent domain’ protection

You all know about public domain eminent domain protection: the government cannot take your property for public use – public benefit — without fair market compensation, which you can negotiate and take to court if necessary. Acquiring your property is a “taking.” 

According to the courts,  it is not well known that the government’s denial of a natural use of your property is considered an informal taking, and compensation must be paid. I am surprised to learn that almost any personal property owned by the homeowner can be subject to a taking by the government. (Investopedia).

As an HOA member you do not have an equivalent HOA government taking protection whereby you are compensated for any takings or modifications demanded by the HOA. While HOA government takings per se are rare except for foreclosure rights, the HOA does demand that the homeowner replace or remove approved  landscaping trees or shrubbery, additions like sheds, playsets,  repaint the exterior, etc. At the homeowner’s expense!

I’ve found many times that corrective action is delayed until after completion of the approved homeowner improvements, and the HOA demands that it be torn down by the homeowner. Grossly unjust and unfair: it’s the incompetence of the HOA failing to act within a reasonable time while construction begins.

However, it’s understandable and acceptable if the governing documents specify, for example, that exteriors just be repainted every 15 years, or roofs inspected for necessary repairs every 20 years or so, etc.

The argument used by the HOA generally falls into keeping with the image  of the properties and maintain property values, for the benefit of the members, the HOA ‘public.’  As it stands, the owner/ member has no right to demand compensation and is another instance of constitutional protections lost in HOA-Land.