By Deborah Goonan, Independent American Communities
In spite of recent state Supreme Court decisions in their favor, homeowners and residents in HOA-governed communities face an uphill battle for their Constitutional rights.
That battle has been brewing since the 1970s. At that time, federal housing agencies threw their financial support behind deed-restricted common interest communities (commonly known as homeowners associations).
But the fight for community association residents’ rights became more fierce over the years. That’s because HOA industry stakeholders regularly support state laws that increase the power of real estate developers and HOA boards.
For example, in the 1990s and early 2000s, trade group Community Associations Institute (CAI) led the charge in passing scores of legislation giving HOA boards more power. Laws in most states now allow HOA boards to impose monetary fines for violation of covenants. They also give HOA boards the right enact rules and regulations with little or no input from members of the association.
Forty or fifty years ago, CC&Rs and bylaws of planned communities and condominiums were brief — they fit on 10 to 20 pages. These days, it’s not uncommon for HOAs to present home buyers with governing documents of 100 pages or more. And those documents are written in vague legalese that few lay people can comprehend.
As a result, few people actually take the time to read every single word.
The growth of HOA power
Community living has become more complex. So HOA board members have become much more likely to delegate their duties and responsibilities to third parties.
Critics say that many HOA boards rely too heavily on community association managers and attorneys to monitor violations of the CC&Rs and communicate with their neighbors.
Reliance on HOA industry professionals has, in turn, led to the industry’s rapid growth. And the growing need for legal interpretation of CC&Rs and state laws has led to creation of regional law firms specializing in community association law.
Along with growth in the HOA industry, law firms associated with trade groups such as CAI have become even more bold in their power grab for their client HOA boards.
That’s made more and more obvious each time I read the outrageous statements made by some of the industry’s most prominent attorneys.
Yet, in recent years, homeowners and residents have begun to push back. And more local and national media outlets are investigating the HOA assault on your Constitutional rights.
Nevertheless, some HOA attorneys are doubling down on their efforts to limit and control the rights of community residents.
Two egregious examples follow.
HOA industry attempts to shut down Free Speech on resident-controlled websites
Last month, I posted an article about a Pennsylvania couple’s ten-year legal battle with their HOA.
Like many other outspoken homeowners in HOA-governed communities across the U.S., Michael Glassic operates an unofficial website for his Pocono-area planned community.
The site documents the HOA board’s deferred maintenance of the swimming pool, private roads, and the sewer system. Glassic objects to the board’s unilateral decision to commit members to a mortgage on the common property. He’s equally upset about HOA’s decision sell its first right of refusal on a parcel of common land, without a vote of HOA members.
Naturally, Stillwater Lakes HOA board doesn’t like criticism. Ten years ago, the board sued Glassic and his wife, Noreen Gorka, to force the shut down of the unofficial website.
In an effort to squelch free speech, Stillwater Lakes HOA alleged ‘trademark infringement.’ Their argument — a website registered by Glassic had a name that closely resembles the community’s official website.
But, after ten years of unsuccessful legal maneuvering to shut down the homeowner-controlled website, a Monroe County judge dismissed Stillwater Lakes Community Association’ long-running lawsuit against Glassic and Gorka.
I have a hunch you won’t hear CAI crowing about this lawsuit, since it was a loss for their clients.
The true purpose of ‘cease and desist’ letters
There’s no question about it. HOA trade groups must now admit that members of HOA-governed communities don’t give up their First Amendment rights.
But, that presents a problem for HOA boards. How will they control the speech of ‘disgruntled’ homeowners on websites and social media?
The HOA cannot always control the ‘inaccurate’ or ‘inappropriate’ speech of its residents, but a prominent law firm still recommends trying to shut down unofficial websites.
How? By asking your HOA attorney to write a ‘cease and desist’ letter to the offending homeowner.
True, the attorney’s letter might not convince the homeowner to keep quiet. But at least the HOA will make it clear that they don’t agree with the ‘unofficial’ opinions of the dissenting homeowner.
Don’t believe me? Well, just take a look at this screenshot from the blog of one of Florida’s leading community association law firms.
“Who Said What?” When Members Use Social Media and Other Platforms to Inappropriately Communicate about Association Business – Part II
By Shalya Mount, Florida Condo and HOA Law Blog (Becker & Poliakoff)
September 26, 2109
Texas attorney claims ‘You can contract away your Constitutional rights’
Meanwhile, in the Lone Star State, HOA attorney Gregory Cagle claims that, through covenants and restrictions, homeowners can ‘contract away’ their Constitutional rights. (See source link below)
In this context, however, the attorney is not referring to free speech rights guaranteed under the First Amendment of the U.S. Consitution.
In this instance, Cagle opines that your HOA can enforce restrictions against overnight parking on a public road in front of your house.
Parkside At Slaughter Creek HOA is one of many HOAs that are cracking down on such parking restrictions, after not enforcing the rules for many years.
The HOA industry argument du jour: narrow roads make it difficult to drive in the community when cars parallel park along the curb. It’s not that the roads are impassible, they’re just less convenient for drivers to navigate.
When cars are parked on the roadside, it slows down traffic. So the HOA deems parallel parking bad. Never mind the fact that some residents might consider slower neighborhood traffic a good thing.
And, it doesn’t seem to phase some HOA boards that access to convenient parking is an important quality of life factor for many of its residents.
All of that is secondary to an HOA’s power to enforce its restrictions and rules.
Essentially, the good HOA attorney is saying that your HOA can enforce CC&Rs that override city laws — even if those rules take away your rights to park on a public street.
I wouldn’t be surprised if the next legal battle challenges CC&Rs that restrict parking on public streets. ♦
HOA fines parking violation: What are your rights?
by: Candy Rodriguez, KXAN
Posted: Oct 7, 2019 / 05:36 AM CDT / Updated: Oct 7, 2019 / 08:23 AM CDT
Longtime attorney, Gregory Cagle said this isn’t uncommon.
“We get this issue all the time by the way,” he said. “Specifically with parking on the street because people say, ‘These are public streets, what do you mean I can’t park on a public street?’ Well, these are contractual obligations, you can contract away your constitutional rights.”