HOA HOMEOWNER’S
At the end of the Channel 12 News piece on Homeowners
Associations (Phoenix, Channel 12 News at 6, 4/20/00), the reporter made a
statement frequently made by HOA attorneys, HOA boards and government officials.
I would like to thank her for calling attention to this weak argument for
excusing the actions of HOA boards.
I AM NOT A LAWYER AND I AM NOT PROVIDING LEGAL ADVICE. YOU SHOULD CONSULT YOUR OWN COUNSEL FOR LEGAL ADVICE.
The statement or argument is 1) you signed a contract when
you bought your house and agreed to be bound by the HOA and 2) you can always
cancel the contract by leaving -- selling your home -- if you are not
happy.
This is related to the importance of property rights and
the need to protect private property. It was a chief concern of the founding
fathers; equally so was their concern for the protection of your civil
liberties. The courts sided to protect private property rights over your civil
liberties and supported this argument of "a private contract". The question is: Whose private property
rights are being protected?
In regard to contract validity, HOAs are not required to
provide all of the governing documents when you sign the purchase contract
(never is a unique and separate HOA agreement signed). Only HOAs above a certain membership level
are required to provide buyers a copy of the CC & Rs, and no HOA is
required to provide the other 2 important documents: The Articles of Incorporation and the By-Laws.
How can you be bound to a legal contract when you are not
provided with all the documents? How
can a lawyer or government official defend this breach of contract law?
Also, what is being neglected here is what happens when the
board violates the terms of the contract, and fails to perform and live up to
their duties and obligations under the HOA documents? Basically nothing! How
can the injured homeowner obtain justice? The rules are geared to protect
boards and thereby make it easy for a board to become corrupt and to avoid
punishment. Where is the 'due process'
protection guaranteed by the Bill of Rights if the government fails to act?
Why should you, an innocent party in case of board
malfeasance, leave and allow the violators to go unpunished? Where is the 'equal protection under the
law'? Where is the protection of the homeowner's property rights? Your civil rights being violated. Where is the homeowner's 'Miranda
Rights"?
Finally, it is important
to understand what is meant when we speak of your 'rights'? Simply, they are LAWS
put into effect by governments that grant, protect, or defend actions,
conditions or a status. This is basically what "minority rights', 'right
to freedom of speech', etc come down to.
PROTECTION UNDER THE LAWS OF THE LAND.
When you bought property with an HOA in place, what happened
to these rights? This protection? Did you surrender them? Give them up?
Renounce them to the HOA? That's what some people would have you believe. Are
these people saying that the HOA is above the law of the land? That's hard to swallow.
Are my arguments legally sound? Attorneys would say no.
If you are interested in justice and in fair and equitable
treatment, the answer is a resounding
YES! If you believe that no one is above the law, then the answer is a
resounding YES!
All I have professed can be found under the fundamental
principles of fairness, equal treatment under the law, and in the Bill of
Rights that made America great.
I AM NOT A LAWYER AND I AM NOT PROVIDING LEGAL ADVICE. YOU SHOULD CONSULT YOUR OWN COUNSEL FOR LEGAL ADVICE.
HOA Network
4/21/00
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