Tag: private contracts

HOA vs public government

Ever wonder what would happen if your town/city council did not have enough public minded citizens to run for office?  You know, like what we see in many HOAs?

While I’m not sure, several scenarios are possible.  A small clique would soon dominate the council and the shortage of councilmen ignored.  Or, the state would be asked to get involved either by citizens unhappy with the ruling click, or vendors concerned about the legitimacy of contracts would seek protection.

In HOA-Land who would be able to step in and restore order and a just government?  Not the state since the HOA is not a state subdivision.   Could be the vendors who are mainly the lawyers and managers.  Not likely. After all, it is they who control the HOAS “council.” They like it just this way, because, as we see in the governing documents and state laws, they are a privileged class. Not the board composed of the clique and perhaps “conscripted” directors – those bodies urged to become a director to satisfy the CC&R and who remain silent and acquiesce to the president’s wishes.

I hope readers begin to realize that the dogmatic cry of “no government interference” got just what they asked for – complete independence and on their own. HOA-Land private government requires a higher degree of public involvement than found in the nation as a whole – an insurmountable barrier.

However, some disgruntled member can file a request to the court to appoint a receiver who will manage the HOA – and get paid for it — as it is quite evident that the members are incapable of governing their HOA. Now, he would have his orders from the court and that would not include the irrational lament promoted by the CAI lawyers and managers that it ain’t fair to the “good” members.  Well, it is fair in terms of the fact that it is the failure of the members to participate that makes them guilty of the failure to manage their HOA.  Oh, you thought you were just buying a home and management of the HOA was someone else’s problem.  SURPRISE!

In my opinion, HOAs as a state entity bring more protection than the private and adhesive CC&Rs “contract.”  Understand that turning to the 42 year-old national educational entity, as several states and towns have, that has failed all these years to fix HOA problems is irresponsible and lunacy pure and simple.  As a state entity you have bodies of statutes and common law, and traditions and precedent that serve to protect citizens as opposed to the Johnny come lately, make new law on the fly by courts. New laws that interpret your “contract” in many unexpected ways that do not serve individual rights and interests because the HOA is a private entity.

NJ Supreme Court upholds constitution against HOA free speech electioneering violations

Those familiar with rogue HOAs have seen this occur time after time – board control of the electioneering process.   In, Dublirer, a NJ Supreme Court case, [1]

“The [condo] Board, citing a ‘House Rule’ that barred soliciting and distributing any written materials, denied the request. On prior occasions, though, the Board had distributed written ‘updates’ under apartment doors throughout the building, which criticized the Board’s opponents. The resident filed a lawsuit and claimed that the House Rule was unconstitutional.”

Finally, a state supreme court said enough is enough and free speech in elections for members dominates the governing documents, and the state constitution prevails (This case was not filed under federal laws).

Under that approach, we find that the Board’s policy violates the free speech clause of the State Constitution. The important right of residents to speak about the governance of their community, which presents a minimal intrusion when a leaflet is placed under a neighbor’s apartment door, outweighs the Board’s concerns. We therefore affirm the judgment of the Appellate Division.

The panel [appellate decision] noted that Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. The panel found that the restriction left Dublirer without reasonable alternative means to convey his message.”

Thus, even though Dublirer did not run for public office, his message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values.

Essentially, members – and speaking with respect to member-owners — must be given equal access to the membership as long as the campaign does not excessively disrupt the “tranquility” of the community. Suitable means must be given to members to allow for free speech expressions. The HOA had argued, beyond technicalities that were dismissed, that members had no free speech rights.  Imagine that!  CAI’s description of HOAs as democracies was just contradicted!

The Court held,

“On balance, we find that the restriction on Dublirer’s right to disseminate his written materials to neighbors is unreasonable. Dublirer’s right to promote his candidacy, and to communicate his views about the governance of the community in which he lives, outweigh the minor interference that neighbors will face from a leaflet under their door. In short, Dublirer’s right to free speech outweighs the Board’s concerns about the use of the apartment building. We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.”

It appears that this Court believes that HOAs are akin to public governments and the election of board members is tantamount to a local public election and must be constitutionally protected.  To ensure that local community government works for the member-owners, don’t due process protections and the equal protection of the laws under the 14th Amendment require judicial enforcement against HOA violations?  And that these rights deserve supremacy over privately drafted contracts that have as their objective the dismissal of constitutional protections?  I think so!  So should state legislators!

As for CAI’s amicus brief, it denied free speech rights to homeowners, declared HOAs are businesses and members are like stockholders during board elections, and other non-constitutional methods were available so forget about applying constitutional law.  Sounds like a belief that HOAs are indeed independent principalities (See Establishing the New America: a new book).

CAI cannot allow HOAs to be treated as equivalent to state entities.  See Commentary posted here.

Note 1.  “BRIEF OF PUTATIVE AMICUS CURIAE COMMUNITY ASSOCIATIONS INSTITUTE – NEW JERSEY CHAPTER,” Michael S. Karpoff, Jan. 3, 2013 (Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014)).