HOA laws and Free Speech, Right to Know

By Deborah Goonan, Independent American Communities

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Continuing with the theme of American values, let’s take a look at how various states protect, or fail to protect, rights of individuals residing in Association Governed housing.

For example, is free speech protected in homeowners, condominium, and cooperative associations in the U.S.? According to Attorney Ryan Poliakoff  (FL), in the vast majority of states, it is not. New Jersey would be an exception, but Poliakoff is perfectly OK with restricting rights of residents who supposedly “agree” to the covenants, restrictions and rules prior to moving in.

 

Did you sign away your free speech with HOA

By Ryan Poliakoff

I see no reason that persons who voluntarily bind themselves by, knowingly, buying property subject to restrictions should not be bound by those restrictions (unless the state passes laws that expressly limit the association’s power, such as the condominium laws that protect owners’ right to assemble, or the federal laws that guarantee every person the right to fly an American flag.)
Otherwise, I view deed-restricted communities as guided and governed by contracts, and I believe they should be treated, generally, the same as any private contract between individuals. If the federal or state governments want to pass laws restricting those contract rights, they can do so — or example, the necessary and valuable laws that prohibit discrimination. But, as free speech is a right that can be restricted by private parties, I feel SOCs [Shared Ownership Communities] should, generally, be treated the same way.

 

Do you recall any prominent disclosure that says you will agree to restrict your First Amendment Rights in your Association Governed housing development? I certainly do not, and I read the documents before purchase.

There was no statement that read “In this HOA, the Bill of Rights need not apply.” But there were small clauses here and there that effectively did restrict First Amendment rights, such as giving the developer and then the board the authority to make rules restricting display of signs on private property, and to restrict who could attend meetings.

Of course, most of the time Declarations of Covenants, Conditions, & Restrictions, or Declarations of Condominium are written by attorneys for other attorneys. Their content is at least partially up to interpretation.

Then again, the terms of this so-called “contract” is subject to change after you move in, and not necessarily with your direct consent, especially if your vote is delegated by default to a voting representative.

That’s just a minor detail that most pro-HOA attorneys leave out when they go on the record in support of a “private” organization’s right to restrict your individual rights and civil liberties.

Nevertheless, Poliakoff readily admits that in some states, such as New Jersey, the courts view Associations as small units of local government, and therefore, are more likely to uphold First Amendment protections for residents of HOAs, condo and cooperative associations.

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A second example: Associations typically defend their right to limit who can attend meetings, insisting that HOAs are “private” organizations. Even in some states that have enacted “open meeting” statutes for Association Governed housing developments, meetings are not open to the public – they are only to members in good standing. That often excludes tenants, even if they happen to be long-term residents of the association. It almost always excludes prospective buyers and members of the press.

Recently, in California, however, legislation was proposed to allow homeowners to have someone attend an association meeting alongside them, or on their behalf. California views HOAs as quasi-governmental, so it stands to reason that this type of revolutionary legislation would be proposed.

But Assemblyman Donald P. Wagner’s bill, AB 1720, was defeated through organized lobbying from trade group Community Associations Institute (CAI).

 

Assembly Member Wagner’s Bill to Protect Homeowners Fails in Committee – See more at: https://ad68.asmrc.org/press-release/16196#sthash.HgNRawTK.dpuf

SACRAMENTO – Assembly Bill 1720 by Assembly Member Donald P. Wagner (R-Irvine) recently failed in the Housing & Community Development Committee. The bill would have restored the intent of the Common Interest Development Open Meeting Act and allowed homeowners to obtain information about what their elected homeowner associations are doing.

However, in the face of vehement and self-serving opposition from homeowner association lobbyists and lawyers, the committee bowed to those lobbyists. On the committee, only staunch pro-private property rights champion Beth Gaines (R-El Dorado Hills) sided with the homeowners and the principle of openness in government.

AB 1720 would have effectively overturned the 2013 case of SB Liberty LLC v. Isla Vista Inc., which gutted the open meeting act by eliminating the homeowners’ right to bring anyone – a friend, family member, interpreter, or attorney – to advise or assist at a meeting of the homeowner association board. It would have helped individuals better understand what these quasi-public entities were doing.

“But,” said Wagner after the hearing, “sunshine and the free flow of information were exactly what the associations don’t want. At the hearing, one of their lobbyists even testified that the associations’ attorneys object to having other attorneys in the room on behalf of homeowners. Of course they do! But what a betrayal of fundamental principles of fairness for a government committee to go along with that abuse of due process.”

– See more at: https://ad68.asmrc.org/press-release/16196#sthash.HgNRawTK.dpuf

However, it’s safe to assume that the debate over whether Association Governed housing developments are small public governments of private organizations governed solely by contract will continue.

It seems that American taxpayers residing under Association Rule are getting fed up with the expectation that they should willingly relinquish basic American freedoms and the right to know how their money is being spent.

All that’s needed is for Association Governed Community homeowners all over the U.S. to make their voices heard and to demand the same rights as any other American – no matter where they happen to live.

 


2 thoughts on “HOA laws and Free Speech, Right to Know

  1. It remains that effective December 15, 1791, the first ten Amendments to the Constitution of the United States were ratified. Those ten Amendments are also known as the “Bill of Rights”. Amendment I is quoted at the outset of this posting and may more-often be referred to as “freedom of speech”. Regardless, all of it and the other Amendments are part of our Constitution, the basis of law for our country.

    As such, it would seem that the concept of “legality” would be explicitly apparent to all parties, including HOA board members and their attorney(s). When any “contract” term and/or condition is prohibited by federal or state statutory law, such a contract should be subject to legal challenge in a court of law, since such contract’s terms and conditions are contrary to statute.

    Therefore, such a contract would be void and unenforceable, excepting that certain portions of a contract that are not contrary to statute may remain enforceable under terms and conditions that allow for severable or divisible distinct parts of a contract.

    It may be prudent that such homeowners begin to challenge the HOA by-laws to ensure the legality, as well as the terms and conditions set forth in what is called the Declaration of Covenants, Conditions, and Restrictions (CC&Rs). Property deeds and addendums (added terms and conditions) often are overlooked in the process, too. Consider the entire menu of issues that fall under the simple statutory concept of “legality” (e.g.: contracts contrary to statute and contracts contrary to public policy that include “adhesion contracts”, “exculpatory clauses”, and “contracts conflicting with public service”).

    The above is but a layman’s observation. However, the Constitution of the United States takes precedence and that any homeowners within any HOA — or the United States of America — have the rights that the Constitution provide. There should be no bias or prejudice against the homeowners, without whom the HOA has no purpose. It will sound cliche, but the HOA’s elected officials serve the homeowners, not themselves.

    Unfortunately, without a HOA’s willingness to provide transparency in their activities, to refrain from arbitrary by-laws intentionally or otherwise that seeks to limit the homeowners’ rights under the law, it may take the homeowners’ hiring an attorney or attorneys at their own expense to obtain transparency and enforce their rights over those that may be ad hoc HOA actions to the detriment of the homeowners. The Constitution is still the law of this land.

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