Minnesota Judge upholds Free Speech in HOAs

By Deborah Goonan, Independent American Communities

 

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Thanks to Shu Bartholomew, the producer and host of On the Commons, a weekly radio show covering issues surrounding homeowners’ associations, for passing this article along, with the following comments:

“Apparently there is a judge out there somewhere, who gets it…

This chap’s language may not be appropriate for polite company and he may have skipped etiquette classes in school but the point is, his RIGHT to use his words to get his message across. What happens in an HOA/condo affects all the inmates and they not only have a right to speak up but also, in my humble opinion, a duty to do so.”

 

As I have written on several occasions, “community association” industry special interests have insisted for decades that the relationship between homeowners and their Association is merely contractual, and that the HOA is not a government entity.

Therefore, according to attorneys and community association management moguls who wish to maximize control and increase profitability, The Bill of Rights Need Not Apply in Association-Governed Residential Communities.

Slowly but surely, however, the courts are starting to recognize that the nearly 70 million people who reside in some sort of property owner’s association still live in the United States of America, under the very same Constitution as their family, friends, and neighbors who are not subject to an additional layer of local governance: deed-restricted, common interest communities, also known as HOAs.

The First Amendment provides a right to free speech. As long as the speaker is not knowingly presenting blatant and damaging lies as fact, he or she is free to speak up. There is no law against speaking in poor taste, or in expressing colorful but unpopular opinions.

The reason the First Amendment was written was to protect the right of all Americans to offer criticism of their leaders, without fear of retaliation.

It’s high time to restore that right in homeowner, condo, and cooperative associations.

Court says Hopkins condo critic has the right to be offensive in long feud

Hennepin County District Court Referee Richard Trachy upholds free speech, even though it may be upsetting to some.

Excerpt:

Earlier this month, with [Mel] Pittel’s restraining order about to expire, the condo board sought to extend it for another two years. Pittel fought the board and this time got a strongly worded opinion in his favor from Hennepin County District Court Referee Richard Trachy.

Pittel’s website postings, Trachy wrote, “were often unpleasant and offensive to their targets, who quite reasonably felt unhappy about what he said.”

But even offensive and upsetting speech is protected by the First Amendment, he wrote.

“Even before our Constitution was formed, men and women offended other men and women, and efforts to quiet criticism often enlisted the power of government to compel silence,” Trachy wrote. “Freedom of speech is perhaps the foremost of our cherished freedoms. Hence its inclusion in the First Amendment.”

Preview, read full article here:

http://www.startribune.com/court-says-hopkins-condo-critic-has-the-right-to-be-offensive/363539831/

 

 

 

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3 Replies to “Minnesota Judge upholds Free Speech in HOAs”

  1. Reblogged this on Tim Stewart on the Oakstead CDD & Weymouth HOA and commented:
    Deborah Goonan is one of the most knowledgeable and experienced persons writing on the subject of HOA’s in the US. In this post, she makes two very important points: first, the guarantees of US Constitution and its associated Bill of Rights are beginning to be realized by the State courts as applying to HOA’s; second, that contrary to the the community association industry advocates, attorneys, and HOA management companies, who insist that “the relationship between homeowners and their Association is merely contractual, and that the HOA is not a government entity” is being challenged in court.

    A HOA contract (CCR’s) cannot trump State or Federal law. Guarantees of freedom and liberty under the foundational document this country was founded under are clearly superior in the hierarchy of laws to any such contract.

    In Oakstead, we have three layers of local government. First, the Oakstead CDD that is already acknowledged to be a quasi-local government by the State of Florida; second, the Oakstead HOA that serves as the Master Association for the entire Oakstead community; third, the secondary HOA’s set up under the Master Association to govern the maintenance free communities of Tanglewylde and Weymouth.

    I recommend her Blog to you and many questions you might have about HOA’s can be answered there.

    Like

  2. EVERYONE! If you live in HOA in MN and have had bad experience, please write and email to MN Senator David Hann and tell him all! He is sponsoring a bill to introduce HOA OMBUDSMAN! His email can be found: http://www.senate.leg.state.mn.us/members/member_bio.php?mem_id=1016

    However, CAI-Community Association Institute, MN Chapter (Organization of the Management Companies and the Attornies), is lobbying very hard to prevent the bill from passing! http://www.cai-mn.com/blogpost/1120646/CAI-MN-Legislative-Blog
    Therefore, we must write him and tell him about our problems! The legislators need to know the both sides of the story in order to enact the best bill!!! Finally, please spread the word! Please keep in mind, we do not have lots of time, the bill is scheduled for voting on March 2016!

    Like

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