Bill of Rights due process protections for HOA homeowners

declared unconstitutional

by George K. Staropoli

The following list of links presents the short two year life of an attempt in Arizona to provide a check on private adjudication of HOA disputes by HOA boards/committees. The woefully inadequate system of justice found in the CC&Rs, and "sanctified" by many state laws that duplicate the CC&R provisions, simply states, "After notice and an opportunity to be heard." The US Supreme Court has stated that due process sets further conditions: by an independent tribunal, to be able to confront witnesses and to present evidence.

Please understand that "HOA" refers to the government of a subdivision subject to a declaration of covenants, conditions and restrictions.

In 2006, the Arizona groundbreaking statutes placed the adjudication of HOA disputes in the hands of the Office of Administrative Hearings that did not require attorneys, and provided a mechanism that was not based on the Rules of Civil Procedure -- some 100 plus rules on some 200 pages of small print legalese. In just over a year, homeowners, mostly Pro Pers, won some 42% of the cases against HOA attorneys, many of whom were CAI member lawyers.

Most CC&Rs contain a provision that, if the HOA wins, the HOA attorney fees are paid by the homeowner, but is silent on homeowner fees if the homeowner wins. The HOA uses homeowner funds to hire a lawyer who represents the legal fictional entity, the HOA, and not the homeowner. Unlike public government, the HOA governing board does not represent the homeowners, nor does it have any ethical, moral or legal responsibilities to "serve the public" or to function as a public servant. Under the CC&RS objectives or purpose, the HOA is there first and foremost to maintain property values.

In January 2009, the Arizona Superior Court found the statutes to be unconstitutional by default decision since neither the Attorney General nor the Arizona Legislature chose to defend the statutes. In an earlier, more restrictive decision, the Attorney General had filed a brief in support of constitutionality, but for some unknown reason walked away from the second case that affected over 1 million people in Arizona. Read what took place, and what didn't take place.

How American jurisprudence works:

HOAs, justice, and judicial myth and precedent

Judicial precedent and HOA bias

Articles:

Actions by AZ judge in HOA constitutionality case found ethical

The State of Arizona will not protect buyers of HOA homes!

court history and summary of events

Court filings: