By Deborah Goonan, Independent American Communities
Following yesterday’s blog, Legislation should limit power of HOAs, a reader sent the following comment:
This article raises many important issues and misunderstandings about HOA governance. At the Owner level, far too many Owners do not understand their Governing Documents and their rights and duties under those Governing Documents, particularly their due process rights and their duties to elect the Board of Directors. They, too often, don’t exercise their right to vet and choose the Board, and as a result, the Board is populated by unreasonable and unqualified people, including people who serve their own interests before the community’s interests. At both the Owner and Board levels, there is a common myth that the Board can do anything it wants, which is a primary source of conflict between an apathetic Owner and an entrenched, unreasonable Board. Governing documents that I have seen place reasonable due-process restrictions on what the Board can do. If more Owners read their governing documents to understand their due-process rights, there would be fewer foreclosures. If more Board members read their governing documents, they would behave more reasonably.
For all practical purposes, is due process adequate in your association-governed community?
One of the biggest myths promoted by the association-governed housing industry is that homeowners have access to due process when faced with violation notices, assessment collections, or disputes over the validity of alleged breaches of contract.
Community Associations Institute claims that due process is satisfied by giving a homeowner the opportunity to be heard by the HOA board selected (hand-picked) violations committee. In their publication outlining Best Practices, Report #2, Governance, CAI provides a list of minimum standards to ensure quality governance of associations. With regard to due process, here is their recommendation: (see page 5)
The board provides for due process (the opportunity to be heard) for owners in association-related matters and the board encourages the use of alternative dispute resolution in appropriate matters.
Did you catch that? According to CAI, due process is merely an “opportunity to be heard,” and “encourages alternative dispute resolution” (ADR).
But due process, as understood in the context of the U.S. Constitution and centuries of law going back to 16th Century England, is intended to offer greater protections for the accused, ensuring a fair hearing of the issues before a disinterested third party, and, preferably, a jury of one’s peers.
LegalDictionary.net defines due process as follows:
Substantive Due Process
Substantive Due Process pertains to those rights not listed specifically in the U.S. Constitution, but which are recognized as an important part of an individual’s liberty. Substantive due process is often related to areas such as voting, minorities, and the rights of children. When determining whether the government has violated a person’s substantive due process rights, the judicial system first determines whether the issue at hand was a fundamental right.
Procedural Due Process
Procedural due process protects individuals during governmental proceedings, whether they are civil or criminal. Procedural due process also pertains to parole hearings, governmental benefit hearings, and full criminal trials. The rights afforded in this section include, but are not limited to:
The right to an unbiased trial
The right to be given notice of the proposed trial and the reason for it
The right of the individual to be aware of evidence against him
The right to cross-examine witnesses for the opposition
The right to present evidence and call witnesses
The right to be represented by counsel
Prohibition Against Vague Laws
The Due Process Clause protects citizens against laws that are too vague for the average person to understand. If the laws are written in such a manner that an ordinary person cannot determine whether the conduct is expressly prohibited, or that a punishment can be rendered if they carry out the conduct, the court can determine the law to be “void for vagueness.” This prohibition against vague laws ensures that the laws are understandable and that ignorance cannot be used as a defense in criminal offenses.
Incorporating Protections into the Bill of Rights
The Bill of Rights was originally intended to apply only to the federal government, but the ratification of the Fourteenth Amendment placed prohibitions on the actions of individual states as well. As time went on, the Supreme Court made a number of rulings that certain state laws or policies violated protections guaranteed by the Bill of Rights, thus “incorporating” those protections, applying them to all U.S. citizens.
Let’s take each topic one by one
Substantive due process is often not met in association governed communities with regard to basic rights, such as the right to vote in association elections and on official corporate issues.
In association-governed communities, voting interests are not rights, per se. Each unit or parcel is allocated its respective share of voting interests as a percentage of the entire association. The votes a member is entitled to cast are determined by the amount of property that member owns.
Units and parcels owned by the developer are often subject to weighted voting interests, for instance, 3, 5, 7, or more votes per unsold unit or parcel. And during Declarant (developer) control, there are generally no HOA board elections, as the board is appointed by the developer.
The person who resides in an association-governed community has no inherent right to vote. Tenants and non-owners are rarely permitted to vote. The concept of one person, one vote does not apply in association-governed communities. The vote is corporate in nature, not Constitutional.
Because of this substantive difference in rights, owners are at a decided disadvantage when it comes to exercising their “right to vet and choose the board.”
Procedural due process is nonexistent in association-governed communities. The association provides no opportunity for a trial, either by way of a hearing conducted by a board-appointed committee or by way of ADR.
In fact, both of these processes are meant to avoid a trial!
Can anyone convincingly argue that the HOA hearing is a suitable substitute for a trial, or even the equivalent of small claims or Magistrate court?
Consider that, using HOA internal hearings, the following due process requirements are not met:
- There is little assurance that the HOA hearing is unbiased.
- The owner may receive little or no advance notice of the hearing, and no opportunity to schedule a mutually convenient time and place.
- The HOA may not be able to provide ample evidence of the alleged violation or assessment delinquency.
- The owner has no right to cross-examine witnesses that allege a violation. In almost all cases, the HOA takes an anonymous complaint from another owner or resident, and protects the anonymity of the person who filed the complaint.
- The owner has no right to call witnesses as part of defense.
The owner probably does have the right to be represented by counsel, but usually only with advance notice to the board.
As for ADR, depending upon the rules of engagement, an association member’s right to confront and present evidence and witnesses will also be limited. But the most serious obstacle to due process in ADR is whether or not the homeowner has access to a fair and impartial mediator or arbitrator. A second obstacle is that the mediator or arbitrator is not bound by rule of law or legal precedent. A third obstacle is that there is often no right to appeal a decision, and if binding Arbitration is chosen, no right to go to trial on the same issues.
Restrictive Covenants and governing documents in association-governed communities are notorious for the number of vague laws contained within. Board enacted rules are even more likely to be vague, and therefore misinterpreted by homeowners. Yet, within the typical HOA hearing process, there is often no protection for association members against these vague provisions. Selective enforcement of rules is a common complaint in HOAs.
And, because association-governed communities are private organizations (usually corporations), there is no inherent guarantee of that the Bill of Rights of the U.S. Constitution is incorporated into a homeowners, condominium, or cooperative association.
For readers interested in more detail, here is an additional due process reference:
References about ADR:
Traditional Litigation versus Alternative Dispute Resolution (in collection cases)
Arbitration Pros and Cons
Arbitration Pros and Cons
Learn about the advantages and disadvantages of arbitration.