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
Dear:
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.
Sincerely,
George K. Staropoli
starmangroup@cs.com