Substantive HOA member rights advances in Arizona

A big step forward for HOA homeowners in AZ, that restores lost constitutional rights, as the Senate GOV committee passed the bill, HB 2052, in a 7-0 vote with 1 no-vote.  On its way to a full Senate vote and then Final vote.

It should also be seen by HOA BODs as treating their members as first-class citizens.  It follows in the footsteps of California’s SB 323 —  passed into law in 2019 — and several court opinions upholding HOAs are public forums that provide free public speech on governing matters.

Read the summary carefully for it spells out your rights to be heard on an equal basis to the BOD’s actions and views. FACT SHEET FOR H.B. 2052.  Here are some important excerpts:

“Prohibits an HOA from prohibiting door-to-door community activity on property normally open to visitors within an HOA.

Prohibits an HOA from prohibiting or unreasonably restricting an owner’s ability to peacefully assemble and use private or common elements of the community, if done in compliance with reasonable restrictions for the property adopted by the HOA’s board of directors.

“Allows an owner or group of owners to organize to discuss or address condominium or planned community business, including a) HOA board of directors elections or recalls; b) potential or actual ballot issues or revisions to the HOA documents . . .  or d) any other community business or action.  

“Allows an owner to invite a political candidate or other non-owner guest to speak to an assembly of owners.”

Now of course, your BOD will turn to its legal advisors to get an opinion.  If you’ve read my commentaries here you got a good idea of what many of the national lobbying member attorneys will probably telling your BOD.  Under the bill, when it becomes law, members will have a better chance to challenge BOD decisions and get to the facts of who really runs your BOD.  You might say, the bill will Make HOAs Great Again!

AZ free speech bill HB 2052 on track

The substantive Arizona homeowner reform bill, HB 2052, has been assigned to the Senate GOV committee. No hearing date has yet been assigned.  In short,

“Overview Stipulates that 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.”

See Arizona HB 2052 restores homeowner constitutional speech protections

Effective presence in support of legislation requires immediate support to the assigned committee to let the members know before the public hearing. It is this private committee time where decisions are made. This advice can be found in Colorado’s Morgan Carroll’ book and discussed in Colorado senator’s guide to effective HOA legislation.   

Many may not remember Ugenti’s conduct in 2013 but I have the hope that justice will prevail for homeowner with 2052.

“The loss of these perceived benefits lies not in this victory, but in the acts of Rep. Ugenti who is responsible for attaching, at the last legislative session, her defeated HB 2371 to SB 1454.  SB 1454 now became a bill with two subjects in violation of the constitution.”

Here are the committee’s email addresses.  AZ Senate GOV committee 2021

Sonny Borrelli  sborrelli@azleg.gov 
Juan Mendez  jmendez@azleg.gov 
J.D. Mesnard  jmensnard@azleg.gov 
Jamescita Peshlakai  jpeshlakai@azleg.gov 
Warren Petersen  wpetersen@azleg.gov 
Martin Quezada   mquezada@azleg.gov 
Kelly Townsend, Vice-Chairman,  ktownsend@azleg.gov 
Michelle Ugenti-Rita, Chairman   mugenti-rita@azleg.gov 

Arizona HB 2052 restores homeowner constitutional speech protections

The Arizona HB 2052 (2021)  bill (sponsored by Rep. John Kavanagh) is an update to Arizona’s SB 1412[i] which died in Rules last year as a result of postponements due to the COVID-19 virus.  Essentially, its

“Overview Stipulates that 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.”[ii]

The list of AZ GE committee RTS names against HB 2052 shows only AACM and not CAI, who I believe is hiding from severe criticism of its support for unconstitutional HOA legal scheme.[iii]  However, the long time activist CAI member firm, Carpenter Hazlewood et al.,  with several lawyers also being CAI activists, opposes this bill that seeks to restore political free speech to members in HOAs that was taken away by ab initio  — from the beginning making the agreement null and void from the start — unconstitutional declarations of CC&Rs.

“We encourage our association clients to review HB2052. We encourage all board of directors to contact their representatives to discuss its association’s position on HB2052. If you have any questions for Carpenter Hazlewood about HB2052, please feel free to contact the firm’s Legislative Team.”[iv]

CAI dominates HOA board as a result of its CAI School of HOA Governance[v] indoctrination over the years.  What is your board going to do? Stand by CAI’s opposition or obey its legal duties to do right by the members.[vi]  It can only reject this bill on the grounds that it feels granting its members constitutional rights of free political speech — that all other Americans have —  will harm the HOA government.

WHAT DO YOU SAY?

Do not allow your board to speak for you before government committees without a vote of all the members granting such powers.  I have no doubt, based on my years of dealing with CAI on constitutional issues, that its email has been sent to your president your manager, and directors.

Stand by the Constitution!  Contact your state representative and urge him/her to support HB 2052, which will soon come to a vote in the House.

Looking at the role Washington must play, see America cannot be completely unified with HOAs.

References


[i] See in general, AZ SB 1412 reflects move to HOA constitutional reforms (Jan. 2020); Authorities for protected HOA political speech — SB 1412 poll (Jan. 2020); AZ fair elections reform bill SB 1412 moves on (May 2020).

[ii] HB 2052 summary.

[iii] In the Twin Rivers case, the CAI amicus brief to the NJ appellate court warned about “the unwise extension of constitutional rights to the use of private property by members [in HOAs].”CBTR v. Twin Rivers, 929 A.2d 1060 (2007); In reply to my amicus curiae brief, CAI responded with, “It is clear that the amicus curiae simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.”(CAI/Smith amicus response.); CAI maintains HOAs are protected by and do not violate the Constitution — not so!

[iv] “CHDB Legislative Alert!!! AZ House Bill 2052,” Carpenter, Hazlewood email, January 21, 2021.

[v] CAI School of HOA Governance: 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.

[vi] In my sampling of CC&Rs of both large and small HOAs I found boilerplate wording that focused on “maintaining property values” or “for the overall development, administration, maintenance and preservation of the Properties.” Almost all, but not everyone, contain a statement directed toward the member: “shall inure [take effect] to the benefit of the member” [or “each owner”], and “be mutually beneficial.” I came across this one-sided statement: “intended to benefit the Association.” The most liberal and progressive statement of purpose mimics the Preamble to the Constitution “to promote the health, safety and general welfare of the residents of the Properties” (the general welfare clause). The inclusion of “health and “safety” are redundant in that “general welfare” includes these concerns. See “HOA contractual Mission” in Restructuring HOAs – intents and purposes.

Failing to achieve substantive HOA reforms

Is there a way out?  Definitely yes!

It is not by going to state legislatures to be repeatedly rejected, or given token reforms but with no substantive redress of grievances. It is not by repeatedly expecting the courts to do homeowner justice in spite of the strong stare decisis precedent of pro-HOA laws and public policy favoring HOA-Land. It is not by expecting law colleges to provide a balanced educational program in law for students that includes HOA constitutionality.

And it is not by hoping that the media — granted special 1st Amendment protections to inform and educate the citizens on political matters — will measure up and so present the whole HOA truth that has been so long hidden from the public.

As a result of my 21 years of activism and advocacy for HOA constitutionality, and my education and detailed research, I have come to understand the greater social and political forces at work. These forces that have led to the current culture and environment surrounding the HOA legal scheme and structure. They are detailed in my “The HOA-Land Culture.”

Read more at Cult behavior within HOA-Land and Plan to Restructure HOA model.

Are the “powers that be” listening?

Behold the power of the internet! Who says nobody pays attention to my words of wisdom? I quoted Yogi Berra in my November 5th FB post, “It’s not over until it’s over.”

Look what VP Pence had to say today:

“Told @VP Team Today, “it ain’t over til it’s over. . . and this AIN’T over!” Pence tweeted Monday from his Twitter account. “