HOMEOWNERS ASSOCIATIONS - A New Form Of Government
Jun 17 '03
The Bottom Line HOAs are hard to avoid, exercise caution when joining.
This was a research paper I did for a political science class. I hope someone finds it helpful.
On January 10, 2003 Richard Glassel was sentenced to the death penalty in Arizona for killing two Ventana Lakes homeowner association board members during a board meeting on April 19, 2000 (Staropoli 16). A spokesperson for Ventana Lakes said, “He [Glassel] wanted to prune his shrubs to his liking.” Glassel killed the board members over the homeowner associations (HOA) right to trim his shrubs. One responsibility of a HOA is to maintain common grounds and facilities and is not optional to the homeowner.
Planned communities and homeowner associations have evolved from a utopian socialistic ideal to undemocratic, private governments that govern without a Bill of Rights, proper “checks and balances,” and without elections. It is estimated that over 50 million Americans live in approximately 205,000 covenant controlled community, governed by a homeowner association (ABC News 13). More and more Americans are moving into these types of communities every year. This is more a cause of spreading association governed housing developments than an actual desire by Americans to live in this type of community.
Obviously, the Glassel example is an extreme case but it certainly drives home the point that seemingly petty disagreements can quickly spiral out of control. Another case of HOA harassment occurred in Las Vegas, Nevada. According to Diana Sahagun, a reporter for the Las Vegas Sun, “Elisa Ross installed a hidden camera outside her home because she is living in absolute terror – not of burglars, but of her homeowners association.” Ross was questioning the boards’ practices, which was an unwelcome intrusion. Sahagun goes on to report that, “Board members, she [Ross] said, threatened that if she didn’t stop questioning their practices, they would retaliate. When she kept asking questions, fliers started appearing around the neighborhood with her name, address, and phone number, telling neighbors to ostracize her.”
One could argue that an HOA is a modern and legalized dictatorship. In the vast majority of homeowner associations the builder writes the “laws” otherwise known as covenants and is the only one with input on how they should be drafted. Making the rules in a Monarchial setting means that the power and authority does not come from the people being governed, in fact, they have no say whatsoever. The choice is, either agree with the CC&Rs or don’t move in. In some cases there is not even a provision to make fundamental changes to the codes, covenants and restrictions (CC&R). When there are they often require 90-100% homeowner approval. Another problem with homeowner associations, for example, is that developers are allowed to create bills of attainder, or an empty lien against a house. These are to be used in the future in case a homeowner violates one of the rules laid out by the developer. This gives the HOA the authority to foreclose on a homeowner’s house as punishment for violating a rule, such as failure to pay assessments or fees (which cannot be claimed as taxes) or even simple infractions such as painting your house an “unauthorized color” or failing to trim your shrubs appropriately. The U.S. Constitution prohibits bills of attainder but developers create them and use them as the “law of the land” in a mini-government known as a Mandatory Homeowners Association. If this is prohibited by the Constitution then clearly HOA’s are unconstitutional.
How far should these free running boards be allowed to go? As Jasmine Kripalani shows in her article, “Weston Code Posse Rides Herd on Rule-Breakers,” some boards need to exercise some common sense. A homeowner Kripalani interviews, Jim Mayhugh, had his daughter park her 2002 Ford pickup in his driveway while she was home from college for a few days. This was a violation of Article VII, Section 12 which prohibits pickup trucks. Not to mention another rule that was violated which defines temporary parking as a few hours, not a few days.
Any given homeowner association board is primarily composed of volunteer homeowners that are elected by the remaining homeowners. The boards hold regular meetings to enforce the CC&Rs, to establish a budget, authorize expenditures, collect assessments, and oversee the maintenance of common property. The boards often act in the same manner as a corporate board of directors. One of the most common problems with HOA boards is rule creation and enforcement. This problem is compounded due to the frequent lack of experience most board members have in running an HOA. To compensate for this most HOAs hire attorneys and/or management companies to advise them and assist with administrative duties.
Chapter 64.38 of the Revised Code of Washington (RCW) describes the laws regarding HOAs. Luckily, the Washington State Legislature has composed a set of laws that help to keep HOA boards honest and open. However, no mechanism is really in place to curb the actions of so called “rogue boards.” An example of the broad (ambiguous) legal power HOAs have is this: “Section 4: Nuisances. No obnoxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.” This is quoted from the Declaration of Covenants and Restrictions for the Meadows at Lake Sammamish, in Washington State. There is a plethora of issues that could be found to be in violation of this rule. It is partially because of these ambiguous rules that many homeowners associations are tied up in court over, often, petty disagreements.
Experts estimate that, in California, 75% of the homeowners associations are engaged in some legal dispute (Huang 15). Mark Pearlstein, a Chicago attorney, estimates that 60% of all homeowner associations in Illinois are fighting some type of legal battle (Huang 15). Unfortunately, there were no statistics available for Washington State.
Many people get homeowner associations mixed up with neighborhood associations. The two are quite different, at least here in Vancouver, Washington. In e-mail correspondence with Holly Gaya, Clark County Public Information & Outreach Office, she stated that, “Neighborhood associations are somewhat like the PTA in schools... [they are] a group of dedicated volunteers working to build a better community.” Unlike homeowner associations Gaya points out that, “Neighborhood associations are not allowed to charge dues or fees for membership or voting privileges.” Participation in a neighborhood association is voluntary. Gaya notes that disputes happen, “Very infrequently in neighborhood associations since they are not regulatory... [but happen] frequently in homeowner associations since they are regulatory.”
Most government officials see HOAs as partners since they have some similar and overlapping responsibilities. Most often they collaborate on such issues as planning processes, community policing efforts, and conservation efforts. There is much disagreement over whether or not homeowner associations are a positive or negative force in building communities, involving citizens in self-governance, and helping public affairs (mainly citizen-government relations).
Although HOAs function in many ways as a government, homeowners are viewed as having entered into a private contract with the association as a corporation not a government. Homeowners are held to having voluntarily and with full knowledge entered into a contract with the HOA when the homeowner signed the purchase agreement. Few homeowners could say they knew completely that they were legally bound by the CC&Rs and that they automatically became members of the HOA. Few, if any, could say they recall signing a separate document clearly stating that they are entering into an agreement with the homeowner association – because they don’t. There is no signed document that informs the home buyer they are giving up their Constitutional rights when they purchase their home. This results in a homeowner that can make no grievance or appeal to the state or county attorney’s office against an abusive or “rogue” board of directors. This lack of appeal is because the CC&Rs are considered to be an “adhesion contract” which means they cannot be negotiated.
“HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.” – Evan McKenzie, author of Privatopia: Homeowners Associations and the Rise of Residential Private Government
Not all homeowner associations treat their members poorly. Like most things, it is the minority that taints the view of the majority. There are certainly many benefits gained by the development of and membership in homeowner associations. HOAs are, after all, founded upon the belief that they will benefit the members of the community they govern, which is both their strong point and their weak point. They lack in government oversight, a grievance process, and limits on their power and authority. Infringement on personal rights and civil liberties are not justifiable in most cases, unless the offending homeowner is violating a city, state, or federal law as well.
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Bibliography
1. Sahagan, Dianna. “Lawmakers Hears Horrors of Homeowners Associations.” Las Vegas SUN 27 September 2000. http://www.lasvegassun.com/sunbin/stories/lv-gov/2000/sep/27/510829935.html.
2. Glink, Illyce R. “When Homeowners’ Associations Go Too Far.” Think Glink 1 June 2003. http://www.thinkglink.com/HouseBuying/hbc388.htm.
3. New Jersey State Legislature. Assembly Task Force To Study Homeowners Associations. New Jersey: 1996.
4. Thompson, Richard. “Nuts & Bolts of Homeowners Associations.” Realty Times. 16 June 1999. http://realtytimes.com/rtnews/rtcpages/19990616_hoas.htm.
5. “Homeowners Associations and CC&R’s.” NOLO Law For All. 1 January 2003.
6. Lewin, Bob. “Homing In On HOAs.” American Homeowner Resource Center. 12 September 2000. http://ahrc.com/old/HOAorg/Media/ma_Reg091200_Bob.html.
7. Associated Press. “Is Your Home a Castle or a Prison?” Detroit Free Press. 25 February 2001. http://www.freep.com/news/locmac/castle25_20010225.htm.
8. Kripalani, Jasmine. “Weston Code Posse Rides Herd On Rule-Breakers.” The Miami Herald. 27 October 2002. http://www.miami.com/mld/miamiherald/news/local/states/florida/counties/broward_county/4370899.htm. 9. Community Associations Institute. “Rights and Responsibilities.” Community Associations Institute. 1 January 2003. http://www.caionline.org/rightsandresponsibilities/index.cfm.
10. Consumers For Housing Choice. “Homeowners Associations Are Not For Everyone.” Consumers For Housing Choice. 1 June 2003. http://www.consumersforhousingchoice.org/welcome.htm.
11. Pratt, Timothy. “Homeowners, Associations Square Off Over Bill.” Las Vegas SUN. 21 February 2003. http://www.lasvegassun.com/sunbin/stories/stat-ase/2003/feb/21/514694873.html.
12. Johnson, Joe. “Homeowners Associations Debated.” The Colorado Freedom Report. 17 February 2003. http://www.co-freedom.com/2003/02/homeowners.html.
13. ABC News. “Private Governments?” ABC News. 20 April 2003. http://abcnews.go.com/sections/2020/DailyNews/2020_homeowners_02419.html.
14. Thomas, Lawrence. “Community Rules And Homeowners Associations.” New Home Source. 1 June 2003. http://www.newhomesource.com/market/articles/ccrhoa.htm.
15. Huang, Nellie. “Ten Things Your Homeowners Association Won’t Tell You.” Smart Money. 1 December 1994. http://www.propertyrightsnc.com/Ten things Your Homeowners Associations Wont Tell You3.htm.
16. Staropoli, George. “Report On The Veneta Lakes POA.” Citizens Against Private Government HOAs, Inc. 19 April 2000. http://pvtgov.org/pvtgov/downloads/glassel_hoa_case.pdf.
17. Clark County, Washington. “Commonly Asked Questions.” Public Information and Outreach. 2003. http://www.co.clark.wa.us/general/crc2.htm.
18. Wittlake, Steve. “Realtors and CAI Managers in Washington State Try To End Run Around Fair Debt Collection Practices Act.” American Homeowners Resource Center. 12 March 2003. http://www.ahrc.com/new/index.php/src/govt/sub/legis/action/ShowMedia/id/447.
19. Wittlake, Steve. “Washington Law Gives Absolute Power Over Budgets And Assessments Of Property Owners To Boards Of Directors.” American Homeowners Resource Center. 24 March 2003. http://www.ahrc.com/new/index.php/src/govt/sub/legis/action/ShowMedia/id/469.
20. Washington State Legislature. “Chapter 64.38 RCW – Homeowner’s Associations.” Revised Code Of Washington. http://www.leg.wa.gov/RCW/index.cfm?fuseaction=chapterdigest&chapter=64.38.
21. McKenzie, Evan. Privatopia: Homeowners Associations and the Rise of Residential Private Government. Yale University Press: 1996
22. Budd, Kenneth. Be Reasonable! How Community Associations Can Enforce Rules Without Antagonizing Residents, Going To Court, or Starting World War III. Community Associations Institute: 1998.
23. Greenwalt, Joni. Homeowner Associations: A Nightmare or a Dream Come True? Cassie Publications, Inc.: 1998.
24. Gaya, Holly. “RE: Homeowners Associations.” Holly.Gaya@clark.wa.gov (5 June 2003).
Thanks For Reading!
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