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Sen. Barto’s bill says HOA contracts don’t matter

Sen. Nancy Barto’s relentless quest to redefine contractual law escalated to new levels in the Arizona Capitol Times article, “Bill advances targeting HOA authority over roadway restrictions.” In the March 2 article, she attempted to propose a nonsensical argument where she and her friend claim ownership of a vehicle owned by someone else. I can’t follow it. You read it and try to figure it out. In the meantime, let me give another, more real world example.

Suppose I move into a home located within a homeowners association that is, in turn, located in an incorporated community. The HOA’s covenants, conditions and restrictions (CC&Rs) I sign when I move in state that I will get approval for any exterior changes that I propose to make to my property from the HOA’s architectural committee. After moving into the home — which I own — I decide to paint my house bright purple. Very shortly after the house is painted, I get a visit from the HOA’s CC&R enforcers, who explain that first, I did not receive permission to do this and second, the HOA does not allow purple homes anyway.

Whoa! I say. Let me give you a couple of firsts and seconds! First, this home is my property and you can’t tell me what to do with it. Only the city where it’s located can do that. I checked with the city and it has no ordinance against purple houses. And, secondly, there is a Senator Barto who says that I don’t have to listen to you guys because it’s my house on my property so I am the one responsible for how it looks.

Then, the HOA representative points out that I signed a legally binding contract that stated I would agree with the CC&R restrictions when I moved into the area. And they further point out that I had the option of not moving into this area if I didn’t agree with their CC&Rs. My parting remark — as we later walk into the courtroom — is that Senator Barto says that contracts don’t matter.

She says that HOAs can’t set rules on property that isn’t theirs. She says they have no right to tell me how to behave. Boy, I hope that she is here to explain this to the judge when the trial starts!

If residents want to change the CC&Rs of any HOA, they have a proper avenue to accomplish that. Barto’s proposed legislation would upend contractual law by allowing residents who knowingly agreed to the legally binding CC&Rs of the community to ignore a portion of that contract.

— Larry Woods is a community liaison for the Sun City West Property Owners and Residents Association

6 comments

  1. What planet are you from? Since when do HOAs obey the law, their own governing documents or not cheat in elections? (They count their own ballots for goodness sakes!)
    HOAs need to go away and leave Americans to the protections of REAL govenment.
    Purples Houses? You would sell your lawful and Constitutional protections for that?
    Benjamin Franklin said anyone who would sacrifice their freedom for a little safety (in your case, from terrible purple houses)….deserve neither!

  2. Senator Barto isn’t trying to redefine contract law in any way and instead is trying to correct an obvious misuse of contract law by the associations creators which also violates the scope of Planned Community as defined under State statue. The issue the legislature is considering isn’t about an association’s right under its contract to enforce a Cc&R since the courts long ago established that right as being valid. However the courts have also ruled that not all CC&Rs are always valid as written because there are requirements that must be met. In fact a great number of Cc&Rs found in association documents contain poorly or invalid written Cc&R language which is impossible to amend or remove. Due to a combination of the Developers supermajority voting standard, membership apathy and the great number of investor owned properties found within so many developments.

    As far as signing the binding contract that in itself is not written in stone when applied to housing since constitutional and other issues are involved. In fact Senator Barto was justified when she said, HOA contracts don’t matter when it comes to the public streets. Because the courts have often ruled that Cc&Rs under many circumstances are not valid or enforceable such as if they contain arbitrary language, violate public policy or cannot be uniformly enforced just to name a few. Consequently just because a housing association has a restriction in its governing documents doesn’t automatically or always make it valid or legal to enforce.

    Finally if Senator Barto did ever appear before a Judge she will prevail because she stands on solid legal ground. Since the association doesn’t own the public streets, the public school or church which may be located within the development no matter what the contract says. Unfortunately for consumers Developers often place within their governing documents (contract) all kinds of Cc&Rs, provisions and rules that are not valid according to the courts. Leaving the owners the expense, risks and responsibility of amending or removing what they created.

  3. Senator Barto isn’t trying to redefine contract law in any way and instead is trying to correct an obvious misuse of contract law by the associations creators which also violates the scope of Planned Community as defined under State statue. The issue the legislature is considering isn’t about an association’s right under its contract to enforce a Cc&R since the courts long ago established that right as being valid. However the courts have also ruled that not all CC&Rs are always valid as written because there are requirements that must be met. In fact a great number of Cc&Rs found in association documents contain poorly or invalid written Cc&R language which is impossible to amend or remove. Due to a combination of the Developers supermajority voting standard, membership apathy and the great number of investor owned properties found within so many developments.

    As far as signing the binding contract that in itself is not written in stone when applied to housing since constitutional and other issues are involved. In fact Senator Barto was justified when she said, HOA contracts don’t matter when it comes to the public streets. Because the courts have often ruled that Cc&Rs under many circumstances are not valid or enforceable such as if they contain arbitrary language, violate public policy or cannot be uniformly enforced just to name a few. Consequently just because a housing association has a restriction in its governing documents doesn’t automatically or always make it valid or legal to enforce.

    Finally if Senator Barto did ever appear before a Judge she will prevail because she stands on solid legal ground. Since the association doesn’t own the public streets, the public school or church which may be located within the development no matter what the contract says. Unfortunately for consumers Developers often place within their governing documents (contract) all kinds of Cc&Rs, provisions and rules that are not valid according to the courts. Leaving the owners the expense, risks and responsibility of amending or removing what they created.

  4. There is a assumption in the article. Larry only uses an HOA member in the example. Let’s change it.

    If I park my car in an HOA but on a government-owned street, can the HOA fine me or tow my car? The answer is “No,” but tell that to most HOAs. They feel that anybody who comes into the neighborhood is subject to the CC&Rs.

    In fact, the HOA can’t tow the vehicle of the HOA members. If the HOA member has violated the CC&Rs, then there “may” be monetary consequences of that, but unless the CC&Rs specifically give permission to the HOA, then the HOA cannot tow that member’s vehicle.

  5. Existing laws strongly favor the board of directors and attorneys are encouraging further strengthening board powers. The profit-making interests of attorneys and management firms, heavily lobby state legislatures, leaving homeowners without real representation. Clearly, homeowners need a supportive governing body.

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