How inequitable voting rights harm residents of HOAs

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By Deborah Goonan

Americans will hotly debate the pros and cons of issuing Voter IDs. But for some reason, very few people are willing to talk about universal voting rights – One Person, One Vote – for residents of HOAs.

Why is that? 

Roughly 67 million people reside in an Association-Governed Residential Community in the US. Many of them are disenfranchised by corporate voting systems that allocate votes per “unit” or proportion of property owned, Representative Voting Councils, heavy use of proxy ballots, and often unmonitored election processes. Let’s face it. In many HOAs, voting is easily rigged – in ways that are sometimes technically legal.

Under the current voting system in place in homeowners’ and condominium associations:

  • Investors can simply “bulk buy” control of the Board, then legally vote to spend Association funds as they see fit, even if most owners object,
  • An investor or developer-controlled Board of a condominium can vote for termination of the Association and force remaining homeowners to sell their properties, often at a loss,
  • Developers are granted weighted votes, and can hang onto control of their affiliate-appointed Board for years or even decades due to various legal loopholes,
  • Secret ballots are not required for all voting, and are required for elections only in some states,
  • Board members can intimidate owners into giving up their proxy votes,
  • Ballot boxes can be stuffed, proxy forms or mail ballots “lost” or otherwise mishandled
  • Owners who are delinquent on their accounts for any reason (even fabricated) are forbidden from voting in their Associations,
  • A handful of Voting Representatives from unequally apportioned Association Districts can legally vote on behalf of hundreds or thousands of owners without any input, and
  • Tenants are almost always not allowed to vote even though they have to follow all of the same rules and even though their rent payments generate revenue that creates equity for their landlord-owners.

As a result of such governance practices, instead of a democratic process, there is often minority rule of Associations in private communities. Millions of Americans can be subject to the whims of unaccountable Homeowner-Controlled Boards or Developers. Collectively, HOA residents stand to lose millions of dollars in wasted or misappropriated assessments, and, in some cases, even their homes.

Why is this tolerated in a free country?

It is a fact that one in five Americans currently resides in an Association-Governed Residential Community. Most industry publications estimate that 80% of new construction requires the establishment of private Associations. In many of the country’s major real estate markets, buyers and sometimes even tenants must choose to live in an HOA or Condo Association by default — there is little alternative.

Back in 1964, in his decision for Reynolds v. Sim on reapportionment of state legislative districts, Supreme Court Chief Justice Earl Warren wrote: (my emphasis added)

Legislators represent people, not trees or acres.

The Equal Protection clause requires substantially equal legislative representation for all citizens in a state regardless of where they live. 

and…

Weighting votes differently according to where citizens reside is discriminatory.

Why, then, is 14th Amendment protection not currently applicable to Americans residing in Association-Governed Residential Communities?

The Board of Directors, led by homeowners, serves the function of a Legislative body. In fact, that Board also serves Executive and Judicial functions, violating the principle of Division of Powers.

Residents are not permitted to elect a Developer-controlled Board, despite serving the same functions. In fact, why are Developers legally permitted to control communities at all in our Democratic Republic?

Boards represent the property rights of the Association. They do not represent individual people.

Is this not discriminatory treatment of citizens who reside in HOAs and Condo Associations?

Bottom Line: When control of the vote is put into the hands of a few people, we end up with the anti-Democratic principle of Minority Rule. And our Association-Goverened Residential Communities constitute Minority Rule at the grass roots level.

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