Homeowners Associations: Happiness and Post Traumatic Stress Disorder

The following represents a chronology of emails on HOANET (hoanet@yahoogroups.com) in response to an initial post from the editor below, which said, in part:

Happiness in an HOA is based upon, as any other authoritarian government, strict acceptance, obedience and conformity to arbitrary, financially oriented rules, not rules designed to foster individual, personal happiness leading to healthy community relations. In my view, such an underlying premise -- conformance and obedience -- is at the root of the deterioration of healthy, productive communities.

To view the entire exchange, click here.

Public Policy, Tort Law and Planned Communities

Excerpt from closing paragraphs:

The consumer home buyer must be protected under the police powers of the state, as we have with Truth in Lending, Truth in Advertising, strict liability, fair housing, etc. In all of these cases the consumer had signed a contract, yet the state felt the necessity to protect the consumer from provisions that were deemed harmful to both the individual and not in the best interest of society. But, somehow, the state continues to see no evils with planned community governing documents, and in any of the onerous provisions that create an unconscionable adhesion contract.

Policy makers must be made to see the fallacies of their current views, and that the continuance of these views only serves to perpetuate these torts, these wrongs, upon innocent people.

View the complete paper here.

Thoughts for the New Year -- HOA reforms

I just watched the ABC Barbara Walters special, "Heaven, where is it? How do we get there?" Part of this special was a discussion with His Holiness The Dalai Lama, spiritual leader of Tibetan Buddhism. It made me revisit the Dalai Lama's book, Ethics for the New Millennium (1999).

In the first chapter, The Dalai Lama speaks of the effect of western materialism and the overriding emphasis on material wealth and property. He states that western society is suffering from the increasing isolation of people, of neighbors;a lack of caring and concern for others; and that a true compassion for the feelings of others, including one's neighbors, has caused many social problems with a negative affect on the community. He reflects this attitude by westerners,

"But with these developments, there has arisen a sense that my future is not dependent on my neighbor but rather on my job or, at most, my employer. This in turn encourages us to suppose that because others are not important for my happiness, their happiness is not important to me." . . . . "According to my understanding, our overemphasis on material gain reflects an underlying assumption that what it can buy can, by itself alone, provide us with all the satisfaction we require."

Talking with a good friend of mine, she and her husband enjoy friendly and good relations with their neighbors, together setting up holiday lights and other festivities. I asked if she lived in an HOA; she answered, no. That's not surprising since planned communities with HOA governance have an underlying premise that your neighbor cannot be trusted, and must be watched vigilantly. Otherwise, as the promoters maintain, property values, upon which people in local communities are more and more basing their happiness, will suffer drastically. That your neighbor, not YOU, but those other guys, will choose purple polka-dotted houses and insist on their right to fix their cars in their driveway. Such an unreal view, as we all know but may not wish to admit, is the legacy of HOA governance of planned communities. And the promoters of this false happiness are at fault.

Happiness in an HOA is based upon, as any other authoritarian government, strict acceptance, obedience and conformity to arbitrary, financially oriented rules, not rules designed to foster individual, personal happiness leading to healthy community relations. In my view, such an underlying premise -- conformance and obedience -- is at the root of the deterioration of healthy, productive communities.

Yet, state legislatures insist that HOAs are indeed good for everyone and benefit society in general. And while they argue for the First Amendment right to free association, they fail to see First Amendment violations resulting from compelled speech -- the elimination of a free choice in comparable housing as a result of mandated HOA subdivisions, and the continued promotion, support and entwinement between government and private organizations.

Those and who have the power and authority to correct this deterioration of societal and community values, and who shape public policy, have much to ponder for the new year. I hope corrective actions will come forth in the upcoming year for a better society.

Why Shouldn't the 14th Amendment protect homeowners in HOAs?

While the following Supreme Court decision focused on a Midland County's (TX) apportionment of voting districts, the reasoning applies to any local government.

With respect to HOAs, why does state government allow a devise of a questionable "informed consent" private contract to permit developers to circumvent the law as applied to local governments? Could it be that the enforcement of a coercive contract is necessary in order to obtain the compliance to the authoritarian planned community HOA government, on a nation that prides itself as the champion of individual rights and freedoms?

Excerpts from AVERY v. MIDLAND COUNTY, 390 U.S. 474 (1968)

The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious.

Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying [390 U.S. 474, 480] equal protection of the laws; whatever the agency of the State taking the action . . . ." Cooper v. Aaron, 358 U.S. 1, 17 (1958) . . . . The actions of local government are the actions of the State. A city, town, or county may no more deny the equal protection of the laws than it may abridge freedom of speech, establish an official religion, arrest without probable cause, or deny due process of law.

[Now, follow this argument]

That the state legislature may itself be properly apportioned does not exempt subdivisions from the Fourteenth Amendment. While state legislatures exercise extensive power over their constituents and over the various units of local government, the States universally leave much policy and decisionmaking
to their governmental subdivisions. Legislators enact many laws but do not attempt to reach those countless matters of local concern necessarily left wholly or partly to those who govern at the local level.

What is more, in providing for the governments of their cities, counties, towns, and districts, the States characteristically provide for representative government - for decisionmaking at the local level by representatives elected by the people. And, not infrequently, the delegation of power to local units is contained in constitutional provisions for local home rule which are immune from legislative interference. In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens.

We therefore see little difference, in terms of the application of the Equal Protection Clause and of the principles of Reynolds v. Sims, between the exercise of state power through legislatures and its exercise by elected officials in the cities, towns, and counties. 6 [390 U.S. 474, 482]

We will not bar what Professor Wood has called "the emergence of a new ideology and structure of public bodies, equipped with new capacities and motivations . . . ." R. Wood, 1400 Governments, at 175 (1961). Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government . . . .

Analysis of 2005 CAI HOA survey

Below are my comments on some important issues, most of which were not directly addressed by the survey. The questionnaire is not numbered, so I am forced to refer to the opening line of the question as a reference.

COMMENTS:

This was a survey of planned community or condo residents, and non-HOA residents were not included. How the random list was generated is not given. I presume from CAI member organizations. Neither are we told the number of different HOAs, or their size and makeup. How many different HOAs were included? One? Five? 100?

As I wrote some time ago, I classify planned communities as either Residential, Resort or Retirement. With the last two categories, home buyers have a higher acceptance of rules and regulations, and the obligations to conform in these "institutionalized" settings. With respect to Residential, buyers expectations can run from "just buying a home" to "a property value protection association", as the proponents argue as a reason for HOAs as a choice. Which category, and to what extent, comprise the respondents?

About two-thirds were from single family homes.

1. Government Control / HOA purchase impact

In response to this question, 78% said no to "more government control." That's understandable. How about this question instead: Should homeowners in HOAs be subject to constitutional protections under the 14th Amendment as people not living in HOAs?

This response, aside from the form of the question posed, may be explained by the response to the question of "more likely to purchase" in an HOA, where 62% said that being in an HOA had no impact on their decision. That, alone, says that there is a severe lack of information about the consequences of owning a home in an HOA, or that there was no free market alterative available as a result of planning board requirement for an HOA in new developments.

2. Reason for buying
Surprisingly, only 23% said property maintenance was the main reason for buying. Another 15% said a "clean/attractive neighborhood", and 13% said for safety reasons. Only 4% said for property values. This is confusing in view of the propaganda coming from CAI and other special interests, especially if the respondents are indeed CAI members.

3. Assessments &enforcement (What should be done regarding nonpayment?)
The response, 78%, to the question asked avoids the issue of foreclosure, just that "insist that every homeowner pay the assessments." No one woud disagree with that reply. However, nothing was asked about unjust foreclosures and the failures of the HOA to manage its financial affairs like any other business.

4. Questions on Personal Involvement

Contrary to other data, the respondents show a high degree of involvement on HOA affairs -- 72% have attended a board meeting, and some 60% did so more than 3 times. An important factor in this question is the time frame. The time frame was not included in the question (last year? last 5 years?).


5. Questions related to the General Satisfaction and the homeowner's experience with his HOA:

("Have you ever brought a complaint", "anyone complain about the homeowner", "did you complain about another", and "overall HOA experience").

Over 75% have not filed a complaint or were not subject to a complaint, and therefore some 71% are quite pleased with their HOA. That means that most people obey the rules, just or unjust, perhaps because of a fear of severe financial consequences or of losing their home through foreclosure. The question is not posed. Of the 25% who were involved in the complaint process, approximately 75% were satisfied with the results of the complaint, about equally whether the homeowner filed the complaint or was the "defendant."

This is a surprising result. It give the impression that the respondents were "Charley good guys" -- innocent parties -- and it was those other people who were not team players. In an unbiased survey, one would have expected an equal occurrence of "I'm right" whether the respondent was the plaintiff or the defendant. Here, the respondents are always right, whether or not they complained or were the culprits. This is not what one would expect.



Conclusions:

I've always been disturbed by these questionnaires that assume a voluntarily made, fully informed consensual decision with all the facts laid out on the table, with free market forces at play -- the ability to choose a similarly property not in an HOA. No question was asked "If a similar property was available, would you choose the HOA?", which assumes full discloure has been made to the buyer.

Also, these surveys are used to avoid the more serious issues of constitutional law -- should state governments be promoting and encouraging undemocratic, authoritarian, private contractual governments that operate without accountability to the state and its laws -- the lack of enforcement for violation of state laws question.