By Deborah Goonan, Independent American Communities
Housing consumer and HOA reform advocates need to educate themselves about the national scourge of Civil Forfeiture abuse.
Institute for Justice, a group of attorney that wage legal battles against Civil Forfeiture, defines Civil Forfeiture as:
… a process through which police and prosecutors seize someone’s property and keep the proceeds for themselves, thus giving law enforcement an incentive to maximize profits rather than seek the neutral administration of justice. (See source article below: Timbs v. Indiana)
Its latest argument before the Supreme Court of the U.S.: that states are equally bound by the constraints of the Eighth Amendment.
What is Civil Forfeiture?
Civil Forfeiture is a punitive legal procedure adopted by state and local law enforcement agencies across the U.S. The law allows police to engage in the practice of imposing steep fines and/or seizing private property of suspects accused of crime, at the time of arrest.
Individuals accused of crimes must give up any personal property used in connection with the alleged crime — without due process — before a trial or conviction.
But the 8th Amendment of the U.S. Constitution prohibits excessive fines, cruel and unusual punishment. IJ presented this argument before the SCOTUS last month, and asked the court to declare that the constraints of the 8th Amendment apply to state and local governments, under the Equal Protection clause of the 14th Amendment.
Read about the 8th amendment of the U.S. Constitution:
EXCESSIVE FINES, CRUEL AND UNUSUAL PUNISHMENT
In Tyson Timbs v. State of Indiana, state police seized Timbs’ Land Rover when they arrested him for a drug offense. Timbs was ultimately convicted, and ordered to serve one year of house arrest and 5 years probation. But Indiana police still have possession of his vehicle.
The nation is watching Timbs v Indiana closely, mainly because the SCOTUS is expected to rule in favor of incorporation of the 8th Amendment to states.
The matter of whether seizure of Timbs’ vehicle was excessive can then be revisited.
The HOA connection
Once HOA reform advocates understand Civil Forfeiture, they will better understand why local and state Legislatures are not enthusiastic about limiting the delegated authority and power of HOA boards to fine, lien, and foreclose on private property.
It’s painfully obvious. If left unchecked by the constraints of the U.S. Constitution, local and state governments are inclined to abuse power in the same way!
That’s why state governments allow HOAs to get away with excessive fines, cruel and unusual punishment such as:
Fining a homeowner tens of thousands of dollars for building a small landscape retaining wall.
Threatening a homeowner with foreclosure over unpaid fees stemming from an “unathorized” small American flag in a flower pot near the front door.
Selling homes at HOA foreclosure for a fraction of their market value, thereby depriving homeowners of equity.
Equal protection for residents of HOA-governed communities
IJ presents the following question to the U.S. Supreme Court:
Can a state impose any fine, no matter how outrageous?
Or does the U.S. Constitution prohibit states and local governments from imposing excessive fines, fees, and forfeitures, just as it prohibits the federal government from doing so?
Perhaps the next question before the SCOTUS should be:
Can the governing body of common interest communities or deed restricted neighborhoods impose fines or penalties, including HOA foreclosure, no matter how outrageous the circumstances?
Or does the U. S. Constitution prohibit state-delegated authority/powers of private governments or quasi-governments from imposing excessive HOA fines and fees, or cruel and unusual punishment in the form of HOA foreclosures, just as it prohibits the federal government from these abuses of power?
How HOA industry gets around the U.S. Constitution
The standard industry argument is that association-governed communities are ‘contractual’ in nature. The twisted logic of trade group attorneys is that homeowners and residents ‘agree’ to give up Constitutional protections in exchange for the so-called ‘benefits’ of HOA governance.
But will cases such as Timbs v. Indiana will challenge the industry’s convoluted argument?
Just as a citizen is not expected to give up fundamental rights in certain states, a U.S. resident should not be expected to give up Constitutional rights just because they happen to live in an association-governed community.
The truth is, the majority of HOAs govern residential communities, not commercial enterprises. Because they govern communities of private owners, renters, and their private property, HOAs must be held to the same Constitutional standards as the federal standards.
Americans who live in association-governed communities should be entitled to Equal Protection under the 14th Amendment of the U.S. Constitution, no matter where they happen to live.
HOA fines, liens, and foreclosure – a summary
HOA – charges fines for “crimes” of violation of covenants, restrictions, rules, and regulations. Violations often involve minor offenses or relatively small unpaid HOA assessment balances.
Fines or unpaid assessments accrue steep fees, and become a lien on private property.
If homeowner does not pay off the lien, plus excessive legal fees (to which there is no explicit limit), the HOA can foreclose on the home.
The foreclosure sale price may be a small fraction of the market value of the home at the time of sale, sometimes providing a windfall for the buyer.
The buyer could be any real estate investor, an affiliate of an HOA board member, management agent, or attorney, or the HOA itself.
The homeowner is left with no place to live, and little or no cash proceeds from the foreclosure sale.
How civil forfeiture works
According to state law, police officers have the legal right to confiscate property that is used in connection with certain crimes.
Property could include vehicles, weapons, and even one’s home.
The person arrested has not had due process — the Defendant awaits a trial in a court of law. Nevertheless, personal property is taken away at the time of arrest, not conviction.
Law enforcement agencies then sell seized property and keep the money. Thus, there’s a perverse incentive to arrest people for crimes that allow civil forfeiture.
In many cases, the value of property taken amounts to an excessive penalty in comparison to the crime.
High court likely to say states can’t levy excessive fines
By MARK SHERMAN (AP November 28, 2018)
Institute for Justice
Timbs vs. Indiana
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