On April 1, 2003. the Arizona Senate Government Committee reaffirmed the right of HOA attorneys, management firms and HOA boards to violate state laws, to conduct themselves in highly unethical manners, and to abuse good people living in homeowner associations with continued impunity. A House bill, HB2307, was defeated 7 – 2 after being passed by the House FMPR Committee, 9 – 0. Foreclosures based on liens as a result of fines, without first going to court, will remain the standard operating procedure for rogue HOAs.
2003 is the
3rd year in which advocates sought homeowner association reforms by the
Arizona Legislature. This year's HB2307 provided for restrictions on the
ability of HOA boards to assess fines, liens and to foreclose on a homeowner's
property in the event of late or nonpayment. The boards have broad powers and are unregulated by
the state, nor does the state provide for the enforcement of violations of HOA
related state laws by association boards. Homeowners are, for all intents and
purposes, helpless to fight these actions by HOAs.
Background legal doctrine and principles
[From Sir William Blackstone's Commentaries on the Laws of England (1793)]
A law is "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong [...] Sovereignty and the legislature are indeed convertible terms".
Speaking of the British Parliament, he said "if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the [British] constitution, that is vested with authority to control it".
[James Madison in Federalist #51 is quoted]
"It is of great importance in a republic ... to guard one part of the society against the injustice of the other part. Justice is the end [goal] of government. Justice is the end [goal] of civil society".
"All power ... is subject to abuse and should be guarded against by constitutionally securing the 'great rights of mankind' ... to limit the powers of government, thus preventing legislative as well as executive abuse, and ... preventing abuses of power by 'the body of the people,' operating by the majority against the minority."
"Independent tribunals of justice [Supreme Courts] will consider themselves in a particular manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive."
[And Thomas Jefferson is quoted] "The tyranny of the legislature is really the danger most to be feared ..."
In the Arizona Appeals Court, (2 CA-CV 2001-0198), an opinion was given that bears directly on the issue of the delegation of legislative powers. The court said, "The legislative authority of the State shall be vested in the Legislature . . . . it is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control.
"The legislature cannot abdicate its functions or subject citizens and their interests to any but lawful public agencies, and a delegation of any sovereign power of government to private citizens cannot be sustained nor their assumption of it justified."
Several court decisions by the Maryland Appeals Court ruled that statutes allowing for association liens without a hearing or notice were state actions in support of private organizations and were unconstitutional. Arizona statutes relating to Condominiums and Planned Communities, Title 33, Chapters 9 and 16, respectively, do not provide for a notice nor hearing.
State Supreme Court decisions in Rhode Island and Virginia relating to association fines as a penalty, either in a statute or in the CC&Rs, were declared an unconstitutional delegation of government powers. Arizona Revised Statute 33-1803 is titled, "Penalties" and provides for the right of associations to penalize members for violating a private contract obligation by permitting the association to deprive he homeowner of his property.
In Arizona, and in the other states of Texas, Washington, Nevada, Florida and California, homeowner rights advocates can say,
In every stage of these oppressions we have petitioned in the most humble terms; our repeated petitions have only been answered by repeated injury.... (Decl. of Independence)
George K. Staropoli, Founder
Citizens Against Private Government HOAs, Inc
Scottsdale, AZ , 602-228-2891 / 602-996-3007
April 7, 2003