- A New Form Of Government
It is estimated that over 50 million Americans live in approximately 205,000 covenant-controlled communities, governed by a homeowner association. These planned communities and homeowner associations have evolved from a utopian socialistic ideal to undemocratic, private governments that govern without a Bill of Rights and proper checks and balances. More and more Americans are moving into these types of communities every year, But this is more a cause of the spreading of association-governed housing developments than an actual desire by Americans to live in this type of community.
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 is that developers are allowed to create bills of attainder, or an empty lien against a house. These can 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 interviewed 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 that 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
Chapter 64.38 of the Revised Code of Washington (RCW) describes the laws regarding HOAs. 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 (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. Mark Pearlstein, a Chicago attorney, estimates that 60% of all homeowner associations in Illinois are fighting some type of legal battle.
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. 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 said 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 are lacking 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.