By Deborah Goonan, Independent American Communities
Are proponents of housing consumer rights making progress on behalf of owners and residents of association-governed, common interest communities?
Though some readers may disagree, I do believe things are slowly moving in the right direction.
In terms of spreading awareness, and prompting media critiques of governance in “private” communities, 2017 has been a turning point, from my observation.
The discussion of HOA business and political issues has evolved from obscure and anonymous ranting on homeowner websites — and ho-hum industry-driven public relations — to more serious examination of problems:
weighty financial risks for property owners and investors,
social conflict and perpetual fights over “the money” collected by associations,
rampant corruption, fraud, and theft,
crime and violence, and, of course,
restriction of First Amendment rights that occur on a daily basis in thousands of association-governed residential developments.
IAC has now surpassed 1,000 posts documenting examples of community conflict and dysfunction, nearly all of them linking to credible media reports and data driven research. (If you’re new to this website, I invite you to search by topic and key word.)
Let’s face it. In general, public opinion is not favorable of rules against free self-expression, whether that entails display of holiday decor or lawn signs.
Columnist Jenice Armstrong quotes Temple University law school professor Burton Caine, who suggests getting the American Civil Liberties Union (ACLU) involved in setting the record straight on First Amendment rights.
It seems that industry lobbyists headed by community association (HOA) attorneys face increasing challenges to their standard legal argument that governing bodies of private communities need not be bound by the U.S. Constitution and its Bill of Rights.
Hate – and lawn sign – have no home in Doylestown Station | Jenice Armstrong
Updated: DECEMBER 27, 2017 — 4:16 PM EST
by Jenice Armstrong, STAFF COLUMNIST @JeniceArmstrong | email@example.com
It’s infuriating that anyone could object to a lawn sign or banner that says Hate Has No Home Here.
Organizers of the slogan campaign insist that it isn’t political and that they have no goal besides combating hate and reminding us of what it really means to be American. But ever since the banners bearing the slogan started popping up in yards a year ago, they’ve encountered pushback from people put off by their message of inclusion.
That didn’t stop Cindy Rosenfeld, 48, who lives in Doylestown Station, a condo community of about 200 townhouses. In May, she placed a small flag with the slogan translated into five languages, including Arabic, and a heart-shaped American flag at the foot of her front steps.
For months, she got no negative feedback. After some neighbors complimented her on the flag, she made some for them and gave them out. Then, on Nov. 6, she got a letter from her condo board informing her that it had gotten complaints and that her banner needed to be removed because the rules only allow “freestanding, small decorative or commemorative flags not to exceed one square foot.”
Rosenfeld, who insists that her flag conformed with the condo’s guidelines for garden flags, tried to appeal the decision, to no avail.
She later learned that the board had revoked its notice requiring her to remove the flag — but that the association’s rules were about to be amended to prohibit all garden flags. It wasn’t long before Rosenfeld got official word that garden flags had been banned. Fearful of being fined, Rosenfeld reluctantly removed her flag.
Burton Caine, a professor emeritus at Temple University Beasley School of Law, said Rosenfeld may have legal recourse and suggested she contact the American Civil Liberties Union.
“My view is that [the condo association’s rule] violates the First Amendment, because she has the right to use her house to convey a message — especially a political message, which has heightened protections under the First Amendment,” Caine told me Wednesday. “She’s not infringing on anyone else.”
You should also read the Cindy Rosenfeld’s original post here:
Several key issues must be addressed here.
Doylestown Station is a condominium association, not a planned community with a homeowner’s association (HOA). There is a distinction in the way property is owned.
In a townhouse association governed by an HOA, typically each home and a small lot are sold individually, and the Association owns common infrastructure (roads, storm water areas, guest parking areas) and amenities (swimming pools, club houses, etc.). Each homeowner also owns a small lot to the front, rear, and, if an end unit, to the side of the house.
But in a condominium association such as Doylestown Station, private ownership is limited to the interior surfaces and contents of one’s unit, with limited rights to use (but not own) common areas such as front entry structures, patios and balconies, and small front and back yards. Common areas in a condo association are owned collectively, and governed by to a greater degree by association restrictions and rules.
Therefore, Doylestown Station’s attorney is apt to argue that Rosenfeld does not own “her” front yard or front staircase – at least not as an individual. Collective ownership of common spaces, the industry argues, justifies its rights to enact and enforce rules against signs that might offend some members of the association.
In other words, just as Rosenfeld has no right to decorate or place political signs in the City park or on property owned by a private business – at least not without permission from the property owners – she also has no right to place a “Hate Has No Home Here” sign in “her” front yard, without permission from her condo association.
A property rights gray area
And therein lies the problem. As far as an owner or resident is concerned (including a tenant), a townhouse or condo comes with usable exterior space that certainly feels like personal space, like an extension of one’s home.
The fact is, one does not have to own real property to claim property rights and civil liberties. For example, barring a dire emergency, a landlord cannot simply enter a tenant’s apartment home without advance notice. And a City cannot prohibit a peaceful assembly of protesters in a public park.
On the other hand, according to the First Amendment Center, freedom of speech is not necessarily guaranteed on private property open to the public, such as shopping centers, except in a handful of states, such as New Jersey and California.
In other words, U.S. and state law with regard to civil liberties in association-governed communities is about as consistent as the weather and about as clear as mud.
In the coming year, expect association-governing bodies to face new legal challenges, not to mention very robust challenges in the court of public opinion.
When homeowners favor some HOA rules that limit individual freedom of others, they also limit their own freedom.
The other more subtle source of confusion and conflict is that some homeowners are in favor or some rules and restrictions, but not others.
According to Rosenfeld, she appreciates rules against hanging laundry in plain sight of her home. And, though she’s not pressing the issue of restrictions, she admits she’s not fond of religious Christmas decorations, either. (If you missed that, go back and reread both article links above.)
Yet Rosenfeld is (I believe, rightfully) perturbed that her seemingly harmless sign was forbidden by Doylestown Station Condo Association.
And her neighbor does not acknowledge that expecting Rosenfeld to remove her “Hate Has No Home Here” sign is precisely the same thing as expecting a Christian to remove a Nativity scene from the front yard.
Oh, the irony!
You see, without a litmus test to decide which restrictions and rules violate basic Constitutional rights, disagreements and personal protests such as this are as common as snow at the North Pole.
May the robust debate continue.