HOA laws and Free Speech, Right to Know

By Deborah Goonan, Independent American Communities

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.

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 excerpt of Wagner’s press release —

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.”

 

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.