George K. staropoli
January 2, 2001
OPEN LETTER TO LEGISLATORS RELATING TO PROPOSED LEGISLATION OF A HOMEOWNERS ASSOCIATION REFORM ACT
1700 West Washington
Phoenix, AZ 85007
Let me first wish you a very successful year for the upcoming legislative session.
I am a 16-year resident of Arizona living in a small homeowners association in Scottsdale. You are undoubtedly aware of the recent media attention to problems in these associations as well as the results of the HOA Study Committee just ending this past December. I have been an active participant for homeowner rights and HOA reforms, producing several articles for the web site, presenting papers to and speaking before the HOA Study Committee, and being quoted in several nationwide publications. I maintain internet email sites, http://starman.com/HOA and http://pvtgov.org, and an email list service, HOA Network, with an nationwide membership. I’ve started a membership, non-profit organization, Citizens Against Private Government HOAs, working to bring important and full information about living in an association to the attention of the public, the media and Arizona legislators.
Let me say that the Study committee did not do the job it intended to do – it failed to protect homeowner’s rights and did not examine at all the practices of the special interest groups, the management firms, that had representatives sitting on the committee. It is my strong conviction, as well as that of others who have been seeking homeowner rights nationwide, that these special interest groups, with the inclusion of the associations and attorneys working in this area, have deliberately mislead the legislature, the media, the public and the buyer of an HOA-controlled property. The question comes to: Can the homeowners association maintain property values, as it is charged by virtue of the CC&Rs attached to the development, and not deny its homeowner members the basic civil liberties and rights that are guaranteed to all citizens of this state and this country?
Senator Smith, at the committee hearings and in the press said, “I don’t want to hear any more horror stories” from citizens speaking before the HOA Study Committee. The committee has received thousands of letters and emails as Senator Freestone stated at the first hearing. No, we are not a few “malcontented and disgruntled homeowners” as stated publicly by the leading trade group, CAI, in the media, in the Arizona School of Real Estate’s monthly publication and in their own monthly publication. How can CAI, a tax-exempt business trade group represent homeowners who are consumers?
I have asked at the committee hearings, on the national CAI email list, and in my articles,
“Do you feel that giving back civil liberties to the citizens of Arizona who live in your association would harm the association’s property values?”
I have stated before the committee that I have not heard CAI say,
“We agree that homeowners have been denied their civil rights and we will work with you for their restoration … We will join you in helping stamp out those boards that violate state laws and the governing documents …”
Yet, you, the legislators and the public, are still being told by the special interest groups that there is a discontented minority and we should not upset things for the 95% of the associations doing things right. Well, it’s this arbitrary and unverified 5% that need the protection of the laws of the land to stop abuses, oppression, intimidation, loss of home and possible financial ruin as a result of HOA boards of directors failing to follow state law and their obligations under the associations governing documents. Why? Because the enforcement of the CC&Rs falls into the hands of a non-profit corporation called, essentially, the homeowners association. The HOA is a private corporation and not a civil government and thereby allows the boards of directors to disregard the rights of its homeowners and prevents the state from taking actions against the unlawful acts of these boards.
Yet, you, the legislators and the public, are still being told by the special interest groups that the homeowner signed an agreement which is a private contract and outside the protection of the civil liberties we all have come to expect and are guaranteed by the Bill of Rights. No mention is made, by the special interest groups, of the fact that the average homeowner does not understand that he surrendered his civil liberties when he bought his home. No mention is made that the average homeowner cannot fully comprehend the 8 page home purchase contract, nor the 100+ pages of the governing documents he is supposed to receive, nor that he was not given a 5 or 10-day “escape” provision to cancel his contract if he was not satisfied with the documents he read.
There are those who argue that this is wrong; that this is un-American and violates the American system of government and principals and values of justice for all and fair play; that the HOA structure is a de facto private government operating outside and above the laws of Arizona and this country. Studies regarding these problems with HOAs have been conducted by several university researchers: Evan McKenzie, Stephen E. Barton and Carol J. Silverman, to name a few. There was even a study conducted in 1992 in Arizona regarding the problems with homeowners associations. There are those who argue that it is now time for the legislators to seek out the truth, the full story, regarding the private government aspect of homeowners associations and take steps to remedy this unjust and unequal application of the laws against homeowners living in associations.
I am seeking effective legislative reform to bring justice to homeowners and hold the HOA boards of directors accountable as we currently hold our civil government accountable. Yet, you, the legislators and the public, are still being told by the special interest groups that
all of this will cause homeowners not to volunteer to serve on the HOA boards and will thereby result in the failure of the association. The implication here is that property values will erode because an association is the only method to ensure property values. This is the same false conclusion that the courts have ruled on: to allow an association not to enforce the payment of assessments through foreclosures on homes would cause serious harm to the association.
Do not fall for these arguments seeking to generate false fears. What we have here is the special treatment of a person, the HOA, by the government so it can’t fail. What we have here is the special treatment of a person, the HOA, permitting it to govern citizens while denying them the rights guaranteed to all citizens under the Bill of Rights – due process and the equal protection under the law.
What do we have here?
· The Arizona legislature passing laws in violation of the Arizona Constitution that forbids enacting laws favoring any one individual or person.
· The creation of an un-American system of government, the private HOA-controlled property government, where the foremost purpose of the government is not the protection of the freedom and liberties of its citizens, but the subversion of these basic American principles to the HOA “state” goal of maintaining property values.
I have therefore, not being at all satisfied with the performance of the HOA Study Committee, prepared my own proposals for HOA reform and the restoration of homeowner rights, attached to this letter. I am not seeking anything that is not the right of any citizen. I am not seeking to destroy homeowners associations, but to seek justice for homeowners. I have taken pains to make as little changes as possible to existing statutes, relying on existing laws and their modification for application to the problems with homeowners associations. Included with this letter is my draft proposal for a legislative bill to be introduced at this legislative session.
I urge all legislators to sponsor and support these proposed legislative reforms.
George K. Staropoli