Archive for the ‘justice’ tag
Earlier I presented demographics from a 2007 CAI study in HOA satisfaction that alluded to the homeowner association resident population being significantly different from the general population[i]. From the survey, the demographics showed that HOA residents are non-minority, educated, well off seniors. Either the CAI – Zogby sample was biased or it was representative of the general HOA population.
Being curious as to whether HOAs admit to a segmentation of the general US population, I conducted a non-scientific, “take a peek” analysis of my own. My methodology selected 25 HOAs at random in Maricopa County, AZ, and to look at the single issue of Hispanics living in HOAs. Because of the lack of accessible data, I relied on subdivision lot ownership records with Spanish surnames as my criteria for Hispanic ownership. I obtained data on the 8 city/towns represented by the sample HOAs, as well as state and county data[ii].
The table below compares the city/town Hispanic percentages, based on the 2000 Census, with the results found from the HOA county records.
The 2000 Census showed a population of 25% Hispanics in Arizona and the sample shows 24%. The 2008 update gave a 31% Hispanic population in Maricopa County.
Now, seeking an explanation for this result, I reasoned that this smaller population figure could be the fact that Hispanics in Arizona own a smaller proportion of the homes than non-Hispanics. In fact a study by HUD based on 2000 Census data revealed about a 50% reduction in ownership of homes for Hispanics: 24.8% for non-Hispanics vs. 12.4% for Hispanics (see Ownership, n. 2). Even with this substantial reduction in the number of Hispanic owners expected to be found by this analysis of county ownership records, the sample still reflects a significant difference from the Census data.
This question of HOA demographics needs to be given serious study and appropriate research conducted, since there is the implication that HOAs are a vehicle for class structure within the US. Local governments increasingly support, and even mandate, an HOA for all new home construction. And, additionally, that the HOA form of government repudiates the US Constitution, and denies homeowners the equal protection and due process of law in pursuit of an empty statement of maintaining property values.
[ii] Ownership in Maricopa County, http://www.huduser.org/Publications/PDF/hisp_homeown7.pdf; population data from http://quickfacts.census.gov/qfd/states/04/0412000.html. The data was based on the 2000 US Census and 2008 interim data.
I have argued that HOAs are a second form of illegitimate and unlawful, de facto local political governments. Randy Barnett, a constitutional scholar, wrote: “Only if it is legitimate can an existing constitutional system issue commands to the citizenry that bind individuals in conscience.”[i] The HOA government legitimacy rests on just “laws” respecting the rights and privileges of the people without violating the rights of others; that their member’s acquiescence to obey these unjust laws and covenants cannot be misconstrued and interpreted as having consented in good conscience to have so agreed.
I have also argued that, under “government”, Black’s Law Dictionary offers the simple definition: “The structure of principles and rules determining how a state or organization is regulated.” And, to clarify by what is meant by a “state”, Black’s speaks in the same terms of the differences in function that distinguishes an association from that of the state, and of the need to determine the “essential and characteristic” activities and purposes of a state. A state, according to Black, is a community of people established for “securing certain objectives . . . a system of order to carry out its objectives.” Nothing-new here, but Black’s then goes on to say: “Modern states are territorial; their governments exercise control over persons and things within their frontiers” (emphasis added). And Black cautions not to confuse the “state” with other communities of people in other forms of organizations designed to accomplish other objectives.
What has come to light since these earlier Commentaries, is the US Supreme Court interpretations of “state” and “government” in a question of the legitimacy of the secessionist State of Texas, in regard to the sale of bonds by Confederate Texas.)
The Court reasoned (emphasis added),
It [a state] describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community . . . .
The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state . . . . A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.[ii]
This 142 year-old opinion supports Black’ definition and the essential characteristic that makes an entity a government: a government is the person or group that controls and regulates the people within a territory. While the functions and services provided by a government are shared with many other entities, such as businesses per se and nonprofit organizations, this definition “separates the chaff from the wheat.”[iii] HOAs are the governing body of subdivisions that are subject to covenants; subdivisions are territories, plain and simple.
The Supreme Court further held, with respect to lawful and legitimate actions by de facto governments, and Confederate Texas was so considered,
It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens . . . which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual [de facto], though unlawful government; and that acts . . . intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.
In other words, the acts and actions by a de facto and unlawful HOA political government have validity to the HOA “citizens,” unless these acts and actions defeat the rights, freedoms, privileges and immunities of the people, the HOA members. The people are still subject to the Constitution in spite of all those arguments that the Constitution is negated by private contracts. This view is consistent with Barnett’s arguments for obedience in conscience.
Unfortunately for our “Modern Times,” there is a great division within this country, not this time between the Blue and the Grey, but between the Blue and the Red — the major political parties. This great division, this Second Civil War as author Brownstein titles his book[iv], is a war of ideology and dogma — as in the case with HOA “true believers” — coming before “for the good of the county” and the people.
[i] See The legitimacy of HOA boards and state legislatures, George K. Staropoli, citing Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty, Ch. 2 (Princeton University Press, 2004).
[ii] Texas v. White , 74 U.S. 700 (1868).
[iii] Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs, George K. Staropoli (included as Part III, “American Political Governments”, in The Foundations of HOAs and the New America.
[iv] Ronald Brownstein, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America (Penguin Books 2007).
In response to a homeowners complaint, the AG’s office, Consumer Protection and Advocacy Section, replied,
Unfortunately, the problem you complained about is not within our jurisdiction. Our office enforces the Consumer Fraud Act, however, the Act does not allow our office to pursue private disputes. Our office represents the state of Arizona and cannot act as a private attorney for individual citizens.
Understand that under the legalities here, the AG’s authority to deal with fraud is limited to “consumer fraud”. Carefully reading the AG’s authority on its website[i], I found that fraud is defined solely in terms of the “selling or advertising“, which precludes its involvement in many of the HOA offenses and abuse. Fraud, itself, is basically defined in terms of misrepresentation and false statements.[ii] Consequently, homeowners must look elsewhere within the Attorney General’s Office for possible assistance.
The Criminal Division[iii] has authority to “protect the citizens of Arizona by successfully investigating and aggressively and fairly prosecuting criminal cases within the State of Arizona.” Its Criminal Prosecutions Section contains the Fraud and Public Corruption unit, which “prosecutes white collar crime and fraud by individuals . . ..” (Nothing further is mentioned of white-collar crime on the AG’s website). Note the distinction between “white collar crime” and “fraud”. White-collar crime, as stated by the Gillespie Law firm, is a broad label,
White-collar crimes typically refer to a type of financial, corporate, or economic crime often committed by employees or professionals using deception, as opposed to violent crimes that involve force. Most people who think of white-collar crime think of stock market and business fraud cases. However, white-collar crime involves a wide variety of criminal offenses.[iv]
Gillespie then lists the following as white-collar crimes:
1. Bribery A.R.S. §§ 13-2601, et. seq.
2. Embezzlement, Theft, and Larceny A.R.S. § 13-1802
3. Extortion A.R.S. § 13-1804. “Extortion” is a type of theft involving taking property or services through the use of a threat. A person commits extortion when they knowingly 1) obtain or try to obtain something by threatening to: Cause damage to property, 2) Expose a secret that will subject anyone to hatred, contempt, or ridicule, or to impair their credit or business, or 3) Cause anyone to part with any property.
4. Fraud Schemes A.R.S. § 13-2310[v]. A person commits a “fraudulent scheme” if, through the use of a scheme, they knowingly obtain any benefit by using false pretenses, representations, promises, or materials omissions.
In order to get the Attorney General to take your case, you need to file a complaint according to the above, with evidence that can be taken to court.[vi] Will he take your case? In spite of the fact that he’s running for Governor, based on his prior unwillingness to defend homeowners against HOA abuse, and his failure to defend the OAH adjudication of HOA disputes, not very likely. The AG has the discretion to declare, and will most likely do so, declare your complaint a private matter, a tort — a civil, not criminal wrong.[vii] And asked if his office is to do justice, unlike the Dept. of Justice, he will probably say, no, it is to defend the state government.
The AG will once again say (paraphrasing), “Go ye unto the legislature, the sovereign of the state, and seek redress of your grievances.” We must reply, “Will you come forward and support our cause against HOA abuse and injustice?” And we must remind him that, “In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury.” [viii]
[ii] “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his detriment“, Black’s Law Dictionary.
[iv] ARIZONA THEFT / WHITE COLLAR CRIME, The Gillespie Law firm; the law firm is a criminal defense firm (http://www.craiggillespie.com /theft.html).
[v] “Any person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of a class 2 felony.”
[vi] “Fraud must be proved by showing that the defendant’s actions involved five separate elements: (1) a false statement of a material fact,(2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.” The Free Legal Dictionary, (http://legal-dictionary.thefreedictionary.com/fraud).
[vii] Viewing HOA injustice as a civil matter sets public policy against the homeowner in that the state is not interested in violations of the law with respect to HOAs. In general, a crime is an offense against society, whereas a tort is a civil wrong against a person. See Tort Law for Legal Assistants, Edwards & Edwards, eds. p. 6 (Thomson 2004).
[viii] Declaration of Independence.
Ever wonder if the CAI member HOA attorneys are worth their fees? How good are they? What’s their Win – Loss stats? This data is very difficult to come by from the trial courts, and even from the appellate courts where records are kept. Of course, we wouldn’t want to get these stats from CAI unless their source data is provided for independent inspection, which is a problem based on the recent CAI “satisfaction surveys” lacking in such material disclosures.
Fortunately, detailed records are available from the Arizona Office of Administrative Hearings (OAH) where proceedings are recorded and decisions posted on the internet. For the short period of 28 months (from September 2006 to February 2009), this state agency was permitted to adjudicate HOA disputes, and decided 52 out of 66 petitions. Although this is a limited sampling not related to civil court cases — where the Rules of Civil Procedure come into play against the Pro Per — these OAH hearings present a leveling of the litigation playing field. An analysis of these cases will provide a good clue to the litigation value of an HOA attorney, and to whether or not engaging a CAI member attorney resulted in improved success.
A colleague gathered the data, which showed the following prevailing party percentages:
This is quite surprising given that in almost all the cases the homeowner was a Pro Per and the HOA was represented by an attorney; and given the fact that the state laws are clearly pro-HOA, and the governing documents amount to an adhesion contract in favor of the HOA. What the percentages seem to be saying is that “black letter” provisions of the statutes or governing documents — it’s right there, in black and white — were violated by the HOA. That an unambiguous provision had been violated and yet the HOA and its attorney failed to “own up” and voluntarily correct these obvious violations. That it took a hearing by the victimized homeowner in order to obtain justice.
The question before us to be answered is: did using a CAI member attorney improve the stats? Roughly 38% of the petitions, 20 out of 52, involved one of four CAI member attorney firms, with
CAI prevailed 55.0%
Homeowner prevailed 45.0%
Intuitively, and supported by statistical analysis, engaging CAI member attorneys had no impact on the outcome of the hearings. We then ask: What role, if any, do these attorneys play in HOA disputes? And the answer, partly addressed in the highlighted sentence in the earlier paragraph, and from the prolific advisories from one CAI member firm, Carpenter Hazlewood, is: to seek and promote loopholes and technicalities in the law and governing documents that would lead to adversarial litigation.
The Arizona Senate Government Institutions Committee failed to pass, for the second consecutive year, a bill reaffirming the civil government’s power and authority over public roadways. Bowing to pressures from an unincorporated town, Sun City, the legislators accepted the right of a group of private people, who are governed by CC&Rs, to infringe, usurp, and trespass upon local government ordinances.
Why is the Senate committee deferring to private agreements, which ignore constitutional law and its protections of our rights and freedoms? Why is the legislature agreeing to HOA political government supremacy over public laws, while not recognizing the HOA as a de facto government and holding it accountable as such? This deference gives the HOA pretty much of a free ride.
We need to ask on what basis does the Restatement of Servitudes, which offers recommendations to the judicial system by pro-HOA “legal-academic aristocrats”, proclaim: “Although zoning regulations and servitudes are usually compatible in the sense that the more restrictive prevails . . . .”[i] What does “usually compatible in the sense that the more restrictive prevails” mean? And, we also need to ask is the current legal doctrine of CC&R supremacy legitimate and constitutionally valid?
The Arizona Attorney General, in a 2006 Opinion[ii] on this issue, with respect to county fire code authority, cites case law and provides the following conflicting opinions:
- In general, when a contract is incompatible with a statute, the statute will control. . . . The exercise of police power to protect the public welfare, such as the enactment of fire codes, may supersede provisions in private contracts like CC&Rs if the government’s actions are reasonable and appropriate to the public purpose.
- restrictive covenants cannot avoid obligations imposed by parking ordinance;
- municipal ordinance imposing fence requirements supersedes restrictive covenant;
- The provisions of these and other fire codes supersede conflicting provisions in CC&Rs.
- State or county fire codes supersede CC&Rs when fire code provisions directly conflict with CC&R provisions.
- When a fire code provision and a CC&R provision are not in direct conflict, but rather, are both restrictive, the provision that contains the more stringent restriction will control and will establish the permitted use.
The first 4 items from the AG’s Opinion are consistent and reflect an unequivocal doctrine that statutes and ordinances supersede CC&Rs. While item (4) above introduces the issue of “conflict”, it still holds that the ordinance controls even when there is conflict. Items (5) and (6) above, which are found in the summary section of this short 5-page opinion, are contradictory, and conflict with the first four items taken from the “Analysis” section of this Opinion..
We are now faced with the question: what is meant by “direct conflict” as opposed to just “conflict”? The AG offers no clarification of these terms. This hair-splitting distinction reverses the cited case law and serves to support CC&Rs as controlling over ordinances when the covenant is “more restrictive.”
Perhaps, to better understand these words, we can ask: What meaning can be attached to “indirect conflict”? If, for example, a parking ordinance restricts parking from 10:00PM to 6:00AM, is a covenant restricting parking at any time “more restrictive” or in “direct conflict”? The pro-HOA quick answer is: obviously it’s more restrictive. The criterion of “more restrictive” to grant HOA agreements as controlling is without any rational legal basis to serve as criteria for the denial of legitimate government authority as set forth in the statutes and ordinances. The only rational basis for a government interest for the surrender of civil authority to a private entity is that “that’s what this private group wants.”
But the denial of our rights and privileges rises to a constitutional issue, which must requires a more stringent test of “a compelling and necessary government interest”. Those raising the “safe parking” issue in opposition to the have over remedies in law to effectively address their concerns without a wholesale grant of authority to the HOA. . “More restrictive” denies rights belonging to the people by a private organization — the right, in our example, that the people enjoyed from freedom to park at all other unrestrictive times. “More restrictive” directly conflicts with the rights belonging to the people.
It should be understood that any such enforcement by the courts could be challenged under the state constitution’s “privileges and immunities” clause, or under the color of law doctrine of 42 U.S.C 1983.
Every person who, under color of any statute, ordinance, regulation . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
Covenants that are unconstitutional, contrary to public policy, unreasonable, or arbitrary and capricious are invalid and unenforceable. Pro-HOA devotees offer the desperate and misleading argument that “members agreed to be bound by the CC&Rs, raising the issue of “contract interference.” Which leads to a multitude of questions concerning the validity of the consent to have agreed under the requirements for a bona fide contract. Which leads to the argument that servitudes law with its constructive notice doctrine — homeowners are bound, sight unseen to the CC&Rs — controlling issues of constitutional law.[iii] Which “turns the Constitution on its head” and leads to questions of a constitutionally valid surrender of one’s rights, freedoms, privileges and immunities. Which, coming full circle, leads to covenants that are unconstitutional, contrary to public opinion, unreasonable, or arbitrary and capricious are invalid and unenforceable.
[i] Restatement (Third) of Property: Servitudes, § 3.1 cmt. c (2000).
[ii] ATTORNEY GENERAL OPINION, Terry Goddard, No. I06-005, (R06-009), November 15, 2006.
[iii] Supra, n. 1, § 3.1, cmt. h. (“The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law“).
April 12, 2010
Arizona House of Representatives
Dear Rep. L,
I’d like to thank you and your assistant for contacting me in an attempt to assist the xxxx with their condominium issues. I had followed their earlier Petition with the now “dismissed” Office of Administrative Hearings back in March 2007 — one of the first cases to be heard by OAH.
I spoke with Bob and reviewed his materials sent to me, and the zzzz CC&Rs. My earlier criticism of Bob’s complaints to OAH stand today: most constitute dissatisfaction with the performance of the board and/or property manager, but are not actionable in court (I am not a lawyer). The ALJ in 2007 found it to so, but did act on one of the 12 issues submitted to OAH for adjudication. Bob won, and the condo association was given a $500 punitive penalty.
Sad to say, I cannot help him. Under present legal conditions, no one can, or will be able help him attain justice — court costs, pro-HOA state laws, and an adhesion CC&Rs “contract” favoring the HOA all put the odds on the HOA’s side. I am speaking not about the dissatisfaction issues, but the real violations of state laws and the governing documents. Bob must spend his own money, like so many other homeowners, in order to obtain justice against lawbreaker associations. While state laws make fines and foreclosure against homeowners legal, they do nothing to punish violator associations and management firms.
The statutes do little to protect the homeowner. He is treated with disrespect and indignity as a second-hand citizen. On one hand the statutes are “telling” the people it is of general public interest and benefit to get “deadbeats” to obey the governing documents, and to pay those assessments. But, on the other hand, complaints against the association are dismissed as a private matter without appropriate enforcement — a class 2 misdemeanor, for example — and are not a public concern for the legislature. This failure to punish lawbreakers when it comes to associations amounts to a dual standard against the people in favor of private entities that function as authoritarian de facto private governments.
The adjudication of HOA complaints by OAH had leveled the playing field somewhat, providing attainable —”affordable”, to use a term used to defend the state’s protection of HOAs — justice, where the homeowner could go before an independent tribunal, without a lawyer and without the need to know the 100 odd rules of civil procedure contained in some 200 pages of “legalize.” The constitutionality of the statute was not defended by the Attorney General, or by the legislative leadership, resulting in a superior court disgraceful default decision. Consequently, Bob comes before you and pleads for relief, because there is no place to go, not even to the OAH where he could once hope to have found justice. In the short history of OAH, pro per homeowners won 42% of their petitions against their HOA and its attorney.
I’m sorry to say that, after 10 years as a homeowner rights advocate, the Arizona Legislature has created and continues to permit this shabby treatment of many good citizens, including Bob, by failing to enact HOA reforms. Reforms with enforcement against the association and a bill of rights to protect homeowners.
George K. Staropoli