Banning speech close to home

Article Courtesy of The Washington Times

By John Jordan    

Published April 6, 2015


About 20 percent of Americans live in communities regulated by a homeowners association (HOA), run by boards that, under state and federal law, have nearly unchecked latitude. They can declare speech prohibited and erode privacy.

And without a change in law, there’s not much that can be done about it. 

I have learned about the overreach of such boards as a member of a cooperative housing association in Southwest Washington. 

Like many neighborhoods in the District, Southwest is diverse and changing. This change has been reflected in a new mix of residents, including families, who want our co-op to adopt more transparent, proactive and professional management techniques. A group of owners, led by newer residents, organized informally to discuss these desired changes and elect board members who support them. These owners made clear they want to improve the community and its property values. They used fliers, e-mail and open community meetings to share their proposals for change. Everyone in the co-op was invited to join the discussion. 

The owners pushing for change didn’t do well in the last board elections. Dissent and constructive criticism were successfully portrayed as a divisive “agenda.” To try to prevent further dissent, the board enacted what it calls a “solicitation” rule. This rule, which took more than a year and hundreds of dollars in attorney’s fees to finalize, forbids certain types of communication among residents. The board also installed a camera that enables it to film residents who, in the words of the co-op president, engage in “odd behavior.” Adding even more to the climate of control, the board revealed that it uses the co-op’s security cameras and electronic door entry system to track “suspect” residents’ movements. 

All this might sound like violations of speech, privacy and other rights. But here’s the rub: The Constitution and its protections on speech, privacy and property do not apply in communities run by homeowners associations. 

These are private corporations. And as with all private corporations, it can be difficult for “activist investors” to bring about fundamental change through the normal board election process. 

So what can co-op and condo owners do to prevent and correct such board behavior?

First, they can bring public attention to especially egregious HOA actions. In Missouri, an association forbade a family from building a backyard playhouse for their daughter who had cancer. The association relented after a storm of negative media attention. 

Next, owners can work to get pro-owner laws enacted at the state and local levels. Starting in January, HOA board members in Montgomery County must receive basic training in community association management and law. Virginia’s legislature recently passed a “homeowners bill of rights” that codifies in state law most of the rights outlined in HOA governing documents. Such laws are multiplying across the country. While far from adequate to defend what most people consider basic American rights such as freedom of speech, condo and co-op owners in these jurisdictions at least have a recourse short of costly lawsuits.

That’s the final avenue for those who must deal with intransigent HOA boards. For example, in New Jersey a co-op owner sued, and the state supreme court overturned a solicitation rule very much like the one passed by my co-op board. Lawsuits are expensive, and HOA boards can tap into their owners’ money to hire lawyers to oppose them. But the American Civil Liberties Union and other groups have increasingly taken on these battles as people become aware of HOA boards’ power and the absence of the constitutional protections we all take for granted. 

Many thousands of area residents live in co-ops and condos. More do so every year, as new buildings go up in Southwest, Southeast, NoMa and other parts of the District. With them come homeowners associations and their versions of private government. Most are run well most of the time. But when they aren’t, co-op and condo owners are pushing back. With fundamental democratic rights at stake, it’s a battle worth waging.