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HOA are Unconstitutional

First thanks for letting me join this group, while I do not live in Arizona, I do have friends that do, HOA all across the United States have the same issues, the stories have a familiar ring of abuse, over power board of directors who seem to never have term limits, and with many HOA management and attorneys who actually are members of CAI “Community Association Institute” who have large lobbying power in every state of the union they are a problem child, they do not represent homeowners but that of the HOA industry (Trade groups) whose sole purpose is to make a lively hood off of millions of homeowners who live in homeowner association who in most cases go out of their way to isolate or indoctrinate those board members into this HOA Industry ideology. HOAs over the course of decades has eroded home ownership, as to many whose very civil/property and most of all our very “Constitutional Rights”, thereby creating minor states within a state thereby they are Unconstitutional in ever since of the words within our “Constitution” of the United States. Every homeowner in the United States that lives in one of these HOA must come together to push back since each State has very little oversights with poor outcomes even in a court of law to where a homeowner will always be on the losing side of injustices are far to great. Its over due that property owners take back the American Dream of homeownership to be the lord of their of homeowner suffrage to an industry that makes billions of dollars off every HOA that exist today.

4 Responses

  1. dennisl

    Donna,

    I thank you for your post it is accurate and well spoken. This is why I dedicate thousands of hours of my time to try and educate homeowners and fight both CAI and AACM at the statehouse and try and produce legislation that will return the power to the homeowners to manage these communities and restore our fundamental property and constitutional rights. The greatest tool that we have is the Restatement of Law Third on Property Servitudes, issued by the American Law Institute in 2000 after 4 years of development and research on 50 years of case law relative to Property Servitudes. This two volume set is the most authoritive source of Common law on the subject in the country and can be used by judges in deciding cases without relevant case precedent or state statutes.

    While most of these common interest communities were incorporated for convenience as non-profit corporation the constitution does not protect the people from corporations. But as clearly defined in the Restatement there are three test to the validity of any contract provision or in our case any covenant provision. They are:
    They cannot be illegal
    they cannot be unconstitutional
    and they cannot violate established public policy

    The fact is that the fundament rights of free speech etc. from the bill of rights are public policy and as such cannot be usurped by any provision in the CC&R’s or any rule of the association.

    The HOA industry simply wants to ignore the Restatement because it would change how the lawyers and community managers make money from these communities. And trust me it is all about the ability of these so called support industry players to tap the unrestricted ability of the associations to extract an unlimited amount of money from the homeowners in these communities.

    I created this organization to fight for the rights of the homeowners defined in US common law summarized in the Restatement. Every piece of legislation i propose is based entirely on codifying those rights into Arizona Law.

    I do this because someone has to and without the Arizona Homeowners Coalition the HOA industry has total control of the legislature and Governor.

    I truly welcome you to our Coalition and look forward to your support in helping me change the laws of Arizona to balance the scale of power in these communities.

    Dennis

  2. Donna Simpson

    Will I wrote a nice response somehow when “I’m not a robot” it lost it all.

    “Servitude” = the state of being a slave or completely subject to someone more powerful.

    Enforcing Real Covenants against Successor Owners

    The key element of a real covenant that distinguishes it from an ordinary promise is that a real covenant can sometimes be enforced against successive owners of the property. If a covenant can be enforced against successive owners, it is said to “run with the land.” This means that, like an easement, the covenant can remain effective even if the land is transferred to a third party. Of course, this distinguishes real covenants from ordinary contracts, as all ordinary contracts are enforceable only by and against people who are parties to the contract or intended beneficiaries. Parcels of land that are involved in a real covenant. First, there is the restricted or “servient” land. This is the land that is burdened by the restriction placed by the covenant
    Finally, covenants and servitudes can generally be terminated in the same manner as an easement can be terminated (e.g. though expiration, merger, abandonment, etc.). Therefore, these convents can be terminated, it will need to be done by a majority of property owners to do so.

    Restrictive covenants on property can be enforced in court by owners of other properties in the same real estate development and are often enforceable by homeowner or property-owner associations. Covenants can be used for any purpose that is not illegal, unconstitutional, or against public policy. Racially exclusive restrictive covenants, which were widely used in the United States during the first half of the 20th century, were declared unenforceable in 1948 by the Supreme Court under the equal protection clause of the Constitution’s 14th Amendment. U.S. federal law now prohibits discrimination in housing based on race, religion, sex, national origin, or handicap and allows discrimination against children only in qualifying senior-citizen communities. State and local laws also prohibit a variety of restrictive covenants.

    In subdivisions and planned developments, burdens and benefits are often reciprocal. Each lot or unit is burdened by servitudes for the benefit of all the others. In most U.S. states, if a project developer represents to prospective purchasers, either explicitly or implicitly, that all the property in the project will be subjected to servitudes to carry out a development plan, the plan becomes binding when the first lot is sold subject to the servitudes. Unless the developer has expressly reserved the right to withdraw unsold property from the plan, all the developer’s remaining land in the project is burdened by implied reciprocal servitudes. In subdivisions or other projects developed according to a general plan, all lot owners have the right to enforce the reciprocal servitudes unless the right has been exclusively granted to a property-owners association or is otherwise expressly denied to the individual owners. These covenants are classified as servitudes when the benefit is appurtenant to and runs with the land.

    There are three basic types of servitudes: easements, covenants (HOA’s), and profits. Examples of covenants are agreements between owners of a parcel of land that they will pay assessments to a homeowner’s association and agreements (contract to purchase a home/lot within a HOA’s). Covenants obligate a landowner or that of a HOA to do something for, or give a landowner the right to receive something from that HOA in equal to all.

    In contemporary property law, servitudes allow people to create stable long-term arrangements for a wide variety of purposes, including shared land uses; maintaining the character of a residential neighborhoods, commercial development, or historic property; and financing infrastructure and common facilities. The owner of property burdened by a servitude cannot unilaterally terminate the servitude or transfer the property free from the servitude without the consent of all the beneficiaries. Thus, whether or not they expressly agree to its terms, subsequent owners and occupiers are bound to follow the servitude. Land-use arrangements implemented by servitudes do range from covenants prohibiting nonresidential use of subdivision lots to complex declarations that provide for the physical and governmental infrastructure for condominiums, or that of planned developments such as HOA’s in single family developments as being a private town.
    Contract Law, Non-Profit Corporation Law, are just a few that homeowners need to at least understand within their own state, stop being brainwashed by HOA management companies along with HOA attorneys and for God Sakes make sure you BOD are not mislead or fully dependent on these entities they are there for themselves for pure profit remember that.

  3. dennisl

    Donna,

    Again well stated. I apologize for the difficulty in posting on my site. I can’t tell you how many times the same thing has happened to me. Now if i inadvertently hit a enter while drafting my text i copy the text before i reinitiate the captcha test. This allows me to simply paste the copied text back into the response when I try and post the comment. A work around but i needed the Captcha function to protect the site. I joined your face book group and will provide you any help that you need in Florida as well.

    Dennis

  4. Donna

    thank you, It happen to me as well. I have never said I know everything I learn more each day. I have been the president of two HOA’s one condo and one single family both in Colorado, I worked for the government as a Certified Real Estate Appraisers of 40 years mainly in new development (developers so I know how they work), land, EPA, Flood plain (FEMA), commercial/industrial, agricultural and have worked along side the Army Corps of Engineers on a few projects, plus State appeals for ad valorem purposes, county zoning. I do know how to get around the government system finding out information more then others, but I learn every day something new. I am the only person in my current HOA 2nd largest in the United States to ever get rid of the developer from holding seat on a board for which they had no right to sit on legally all without an attorney. There are 9 total sub hoa’s under a master association that was established in 1971with Poinciana Area that represents a population of between 53,193 and 83,107. Its what homeowners don’t know nor do they know how to even go about finding their information. Don’t expect a real estate agent to be looking out for their interest they just plan provide the basic information get their commission and you never hear from them every again, buyers have to do better and expect better before they sign on a dotted line buying a home in any homeowners association no matter where it is, and they had better understand the state laws in that state that govern them as well before you ever buy a home in any HOA you have to know more. Right now there is a movement in every State to bring about HOA Reform for protection for homeowners not the HOA industry or its trade groups people are quite frankly selling their civil/property right away buying into an HOA, its not to say their are good HOA’s out there but those are so hard to find. Don’t look to an HOA to tell you their dirty laundry either all those pretty pictures are nothing more than a cover up of what really goes on behind the scenes and as a buyer you have rights to information before you buy and the seller must provided that information I would insist that information before every going into a contract to buy.

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