We the people Constitution

2019 top HOA issues: Free Speech and Due Process

By Deborah Goonan, Independent American Communities

debgoonan@gmail.com

In 2019, Illinois and Pennsylvania courts affirm homeowner rights to free speech and due process in their condo and HOA communities.

Illinois

In Illinois, Boucher v. 111 East Chestnut Condominium Ass’n changed the HOA-industry status quo on homeowner and resident Free Speech and Due Process rights.

That doesn’t sit well with certain HOA attorneys.

After all, for more than a decade, HOA attorneys, esteemed members of trade group, Community Associations Institute (CAI), have insisted that Constitutional constraints on power don’t apply to private organizations such as HOAs (including homeowners, condominium, and cooperative associations).

Committed to that self-serving legal opinion, HOA-industry attorneys have convinced countless HOA board members that they have the legal right to control speech within and about their communities.

It’s something HOA boards do regularly.

It’s no wonder some condo boards (like the board at 111 Eash Chestnut in Chicago) grow even bolder about exercising their power over their unit owners.

No due process for HOAs?

Across the U.S., IAC has followed countless incidents where someone in the condo or homeowners association basically makes up a complaint against one of their co-owners or neighbors.

The HOA goes through the motions, holdIng a kangaroo court style hearing on the alleged violation, then imposes fines and other penalties upon the offending owner.

There’s just one problem — when HOAs rely on anonymous complaints, with no concrete evidence of a rule violation, that’s a violation of due process rights guaranteed by the U.S. Constitution.

The condo attorney at 111 East Chestnut refused to provide evidence of complaints filed against Boucher. Likewise, she insisted that a videotape of the violation hearing was subject to attorney-client privilege.

Court rules in favor of unit owner

But an Illinois Appellate court didn’t buy it. The Court agreed with unit owner Michael Boucher, acknowledging that state law says a condo rule cannot impair First Amendment rights.

The court also made it clear that a can a condo association cannot justify withholding meeting minutes of the violation hearing, nor documented complaints filed against a unit owner.

Incredibly, 111 East Chestnut’s condo attorney appealed to Illinois Supreme Court, asking the high court to reverse the Appellate Court’s ruling.

But the Illinois Supreme Court declined to hear the appeal.

For details, see the following three IAC posts:.

IL: Appellate Court opinion upholds rights of condo, HOA residents

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Defendant asks IL Supreme Court to reverse Appellate Court Opinion in condo Free Speech case

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IL Supreme Court rejects appeal in condo free speech, due process case

 

Pennsylvania

Meanwhile, in Pennsylvania, another HOA admits defeat in its fight against Free Speech.

The 10-year battle began when homeowner Michael Glassic had the audacity to start his own website about his HOA, where he sometimes wrote blog posts criticizing the board’s decisions.

The HOA sued Glassic and his wife, Noreen Gorka. After several years of unsuccessful legal discovery, that case was dismissed.

Glassic and Gorka are now suing their HOA, in hopes of recovering thousands of dollars in legal fees they incurred while defending their rights.

HOA’s 10-year assault on free speech comes to an end

PA homeowners sue HOA and its attorneys for filing frivolous lawsuit