Covenants vs State Law

Reposted from HOA Constitutional Government

VERITAS PRO JUSTICIA

Will Arizona allow HOA covenants to dominate state laws?

Jan. 3, 2015 Dear Arizona Senate President Andy Biggs,

You have always been a firm supporter of OAH adjudication of HOA disputes, and I find myself asking, once again, for your support to maintain the integrity of the Office of Administrative Hearings.  The opposition of CAI (“The Community Associations Institute (CAI) is OPPOSED to [the 2014] Senate Bill 1334 (HOAs; hearings; attorney fees).)” to this bill is appalling and unconscionable since the bill attempted to prevent HOAs from taking a giant step toward the status of an independent principality not subject to state laws. (See Establishing the New America of Independent HOA Principalities, 2008)

In its effort to silence Bill Brown, an outspoken critic of his Teravitta HOA government’s policies and actions, CAI attorney firm Ekmark & Ekmark redrafted the CC&Rs in disregard to state law and judicial holdings, as I believe he so informed you.  As occurred with the 2006 OAH enabling act, which was repeatedly attacked by the CAI member firm of Carpenter, Hazelwood, CAI has taken the position that a private contract can override state laws. I am not talking about a surrender or waiver of rights and privileges, but state law!  This is a slippery slope to a more firm status of HOAs independent principalities indeed, without any government oversight.

Such an audacious slap at Arizona’s constitutional system of government cannot be allowed to stand! It is an act violating the constitution as the supreme law of the land. Today, the courts have allowed HOAs to modify municipal ordinances without any state oversight and approval. It is long held doctrine that HOA covenants that are unconstitutional or violate public policy, or that are unreasonable or arbitrary and capricious are invalid and notwithstanding (See Sec. 3.1, Restatement of Property: Servitudes). Now, this doctrine has been intentionally and deliberately challenged and ignored by attorneys of the business trade entity, CAI. This brazen act, placing Arizona on a dangerous slippery slope, is in defiance of the Arizona Constitution and state laws and cannot be allowed to stand.

The bill can be resubmitted as is with a small change to the last paragraph.

 “41-2198.01.

“J. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS AS  DEFINED IN SECTION 33-1202 OR THE PLANNED COMMUNITY DOCUMENTS AS DEFINED IN SECTION 33-1802, THE ADMINISTRATIVE HEARING OFFICER AND THE DEPARTMENT MAY NOT MAKE AN AWARD OF ATTORNEY FEES TO (delete THE ASSOCIATION)  ANY PARTY IN ANY MATTER FILED7 PURSUANT TO SUBSECTION B OF THIS SECTION.”

(Link to SB 1334 (2014): http://www.azleg.gov/legtext/51leg/2r/bills/sb1334s.pdf.)

FYI, I provide the following links to materials and supporting documents of CAI’s hypocrisy, saying one thing to the policy makers and another to the public.  Please read them, for they reveal CAI’s policy that HOAs should be treated as independent principalities while seeking legislative support for this secession from the State of Arizona.

  1. CAI: the HOA form of government is independent of the US Constitution
  2. Will the real CAI standup: its contradictory beliefs, pronouncements and goals
  3. Misrepresentation: CAI comes with unclean hands

Please sponsor this modified SB 1334 in the name of justice and the Constitution of the State of Arizona. I thank you for your earlier support of HOA reform bills. Respectfully, George K. Staropoli

 

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