OAH due process being challenged again as unconstitutional

August 21, 2018

After 7 years in effect, Arizona’s OAH adjudication of HOA disputes is once more under challenge of unconstitutional statute, violating the separation of powers. Carpenter Hazlewood tried 3 times in 2008 – 2011 and eventually had the old statutes declared unconstitutional. After the decision, the statutes were changed to accommodate the court’s decision. (SB 1148, Ch. 185 2011).
The case is CBS-136 HOA v. Cohen, LC 2018-0316 in Maricopa Superior Court.

See full post at  AZ HOA due process by OAH being challenged once again

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Support HB 2238 for HOA justice at OAH

January 15, 2018

If you seek justice at OAH, then you must support HB 2238 that seeks to clarify the appeal of an ALJ decision to the superior court.  Recently, the superior court said, contrary to law in many observers’ opinion, that it was not the place for appeals.  For more information, please read my Advisory,

AZ HB 2238 seeks clear enforcement of HOA decisions by ALJ

 


Developments at ADRE on CAI/AACM as resources

September 27, 2017

Yesterday, the AZ real estate department (ADRE) that now handles HOA disputes through OAH, removed CAI and AACM from its list of homeowner resources.  I congratulate the Commissioner and Deputy Commissioner for this decision.

See AZ R.E. dept. removes CAI and AACM from its list of resources.


Is ADRE adopting a ‘larger context’ posture dealing with OAH due process?

August 22, 2017

 

ADRE HOA Coordinator

Dan,

I am encouraged by your reply of Aug. 18th stating that, while aware that OAH does not deal with corporate law, ADRE does “believe that the headings clearly indicate that Title 10 is part of the larger context of available resources and related laws and statutes.” This is a step forward in attitude considering that for years ADRE has had a hands-off, defensive posture: ADRE does not regulate HOAs.  In other words, my words, not my job.

However, showing this resource that has been used by CAI trade group –whose members represent HOAs and that is strongly opposed to OAH due process — for HOA lawsuits and defenses against homeowner complaints is grossly unfair and unjust, as homeowners cannot make use of OAH due process.

Read the complete reply here . . .


ADRE fails to protect the interests of the general public

August 16, 2017

The following are copies of my exchanges with ADRE using its “Contact US” form, as of August 15, 2017.  The topics wre 1) incorrect reference to corporation law and 2) listing CAI and AACM as homeowner resources and no dvocate websites. See my follow correspondence on HOA Constitutional Government.

The following message was sent to you from the Department. You can reply once to this message by clicking the Reply to Message button. If this message is part of a conversation click the View Conversation button to view all related messages.

Message ID 230332

Sender: Department

Date Sent: 7/28/2017 4:15:41 PM

Date Read: 7/28/2017 4:54:43 PM

Date Replied:

Topic:

Reply: Homeowner Association (HOA) Dispute Process

Message:

Mr. Staropoli,

Thank you for sending in the suggestion that listing the Arizona Statutes related to the governance of HOA’s in the section under Arizona Related Laws/Statutes may be misleading. We appreciate this feedback and will look at adjusting the information so that it is clear that:

an administrative law judge shall adjudicate complaints regarding and ensure compliance with:

“1. Title 33, chapter 9 and condominium documents.

“2. Title 33, chapter 16 and planned community documents.”

only.

Thanks,

Dan

——————————-

Dear Commissioner Lowe,

As you are aware, last year ADRE inherited HOA dispute processing from DFBLS.   In the massive conversion I believe ADRE failed to understand the role of OAH in HOA disputes.  Your brochure and web pages “help info” sections do not clarify that disputes can only be filed with respect to ARS 33, Chapters 9 and 16, and not anything relating to Title 10, Corporations.

Example, “Homeowners Association Dispute Process,”

Search/Select the Laws/Statutes that pertain to the issue

HOA Dispute Process, A.R.S. Title 32 Chapter 20, Article 11

Condominium Act, A.R.S. Title 33 Chapter 9

Planned Communities Act, A.R.S. Title 33 Chapter 16

Arizona Non-Profit Corporation Act, A.R.S. Title 10

2016 ADRE Legislative Report (HOA Related Bills) click here

There was no change in the law in 2016. See below:

Title 32, Chapter 20, Real Estate,

“32-2199. Administrative adjudication of complaints

“Pursuant to title 41, chapter 6, article 10, an administrative law judge shall adjudicate complaints regarding and ensure compliance with:

“1. Title 33, chapter 9 and condominium documents.

“2. Title 33, chapter 16 and planned community documents.”

Please correct this misleading information as soon as possible.

Respectfully,

George K. Staropoli

Citizens for Constitutional Local Government

http://pvtgov.org

 


 

The following message was sent to you from the Department. You can reply once to this message by clicking the Reply to Message button. If this message is part of a conversation click the View Conversation button to view all related messages.

Message ID 230332

Sender: Department

Date Sent: 7/28/2017 4:15:41 PM

Date Read: 7/28/2017 4:54:43 PM

Date Replied:

Topic:

Reply: Homeowner Association (HOA) Dispute Process

Message:

Mr. Staropoli,

Thank you for sending in the suggestion that listing the Arizona Statutes related to the governance of HOA’s in the section under Arizona Related Laws/Statutes may be misleading. We appreciate this feedback and will look at adjusting the information so that it is clear that:

an administrative law judge shall adjudicate complaints regarding and ensure compliance with:

“1. Title 33, chapter 9 and condominium documents.

“2. Title 33, chapter 16 and planned community documents.”

only.

Thanks,

Dan

——————————-

Dear Commissioner Lowe,

As you are aware, last year ADRE inherited HOA dispute processing from DFBLS.   In the massive conversion I believe ADRE failed to understand the role of OAH in HOA disputes.  Your brochure and web pages “help info” sections do not clarify that disputes can only be filed with respect to ARS 33, Chapters 9 and 16, and not anything relating to Title 10, Corporations.

Example, “Homeowners Association Dispute Process,”

Search/Select the Laws/Statutes that pertain to the issue

HOA Dispute Process, A.R.S. Title 32 Chapter 20, Article 11

Condominium Act, A.R.S. Title 33 Chapter 9

Planned Communities Act, A.R.S. Title 33 Chapter 16

Arizona Non-Profit Corporation Act, A.R.S. Title 10

2016 ADRE Legislative Report (HOA Related Bills) click here

There was no change in the law in 2016. See below:

Title 32, Chapter 20, Real Estate,

“32-2199. Administrative adjudication of complaints

“Pursuant to title 41, chapter 6, article 10, an administrative law judge shall adjudicate complaints regarding and ensure compliance with:

“1. Title 33, chapter 9 and condominium documents.

“2. Title 33, chapter 16 and planned community documents.”

Please correct this misleading information as soon as possible.

 

 

 

Respectfully,

 

George K. Staropoli

Citizens for Constitutional Local Government

http://pvtgov.org


OAH hearing leads to HOA attorney seeking arrest of homeowner for not attending attorney fee hearing

August 15, 2014

The Arizona ALJ (Brian Brendan Tully) at OAH granted summary judgment (October 2012) for Terravita in regard to a request for minutes to an alleged executive meeting.[i] The order further states that the judge “concludes that . . . there are no issues contained in the Petition that require an evidentiary hearing.”  However, without an evidentiary hearing, where the homeowner could contest the allegation that it was indeed an executive meeting, the judge essentially took the word of the HOA’s attorney, the CAI member, Curtis Ekmark. In his discussion, the judge once again assumes the validity of Ekmark’s assertion that it was indeed an executive meeting, and argues that the homeowner did not show he had a legal right to executive minutes.

In Arizona, the court operates on a notice basis, that is, just give sufficient information that the complaint is valid, and then present your detailed evidence before the court.  That was not allowed in this case.

Homeowner filed superior court appeal[ii] contesting the ALJ’s decision as “contrary to law, an abuse of discretion, arbitrary and capricious.”  

 6. Administrative Law Judge Brian Brendan Tully’s October 4, 2012 Decision in 12F -H 12120 14-BFS, based exclusively upon certain “statements, claims and contentions (sic)” made by Respondent, Terravita Community Association, Inc., in its pleadings, denied Petitioner (Plaintiff) a hearing which would have brought forward the facts of the contested matter based upon evidence, witnesses’ sworn testimony and argument upon the merits of the matter’s facts and the planned community statutes relevant to those facts, instead, Tully vacated the matter from the calendar of the Office of Administrative Hearings.

Read the entire Commentary at http://wp.me/p3njZ-16a

References

[i] Brown v. Terravita, No. 12F-H1212014-BFS, Administrative Law Judge Decision, Office of Administrative Hearings, October 4, 2012.

[ii] Brown v. Terravita, LC2012-000699, Maricopa County.


AB 1482, Ariz. Sess. L. Ch. 82 makes HOA omnibus bill valid.

August 1, 2014

ALERT!!!!

As of July 24, 2014 the unconstitutional statutes were made constitutional with the adoption of SB 1482 this year. However, Dave Russell has filed a constitutionality challenge (CV 2014-093-052, Maricopa County Superior Court) to the bill, which has not yet been decided by the court.