Back Home in Georgia We Still Think
(The Constitution) Is Pretty Good Law;
or Follow the Rabbit!

Posted on 8-6-2003

Florida HOA law is a monumental lapse in legislative judgment, that threatens the very foundations of democratic fairness and justice. 
The HOA non-profit corporation is a legal fiction. It is a legislative end run around the state's constitutional responsibilities to its citizens. Florida has granted the "board" of these corporations broad powers constitutionally reserved to separate branches of government. 

The Right of Entry Clause, to “recover” late assessments?
The HOA "board" is a *pseudo* government with no separation of powers, whose control extends far beyond the powers of a traditional "Corporation." The control of the HOA "Corporation" affects more than mere shareholder stock. The HOA "Board" is a pseudo-government that controls the most fundamental of American rights -- the right to be left alone in the privacy of one's home.   Indeed, Florida newspapers reported that one Association attorney in Boca Raton claimed that the HOA documents granted it  and the FBI powers to break in and search a vacant house without a warrant, if they deemed the house ‘abandoned’.  Perhaps this attorney believed the CC&Rs should supersede even the United States Constitution.  By claiming the house ‘abandoned’,  the attorney used a "right of entry" clause in the HOA rules that allowed the Board to enter for "maintenance, alteration or repair."   This allegedly gave them the right to break into the house to ensure that there was "nothing of danger there to the community", and invite the FBI to come along. 

The attorney claims the entry was analogous to the right of police to "accompany others who have a right to be on the property, like a motel operator and college roommates."  Is this the same?   Motel operators own the property or are at least the agent for the owners, thus they have a right to enter.  College roommates have a possessory right.  What possessory or ownership interest does the homeowner association board have in a homeowner's private property?   Is a sham excuse a valid "right"?  The experts say it is, according to the Miami paper. Is this the power we are now granting our HOA boards? 

       Shortly after Sept 11, the Miami paper reported the homeowner’s incredulous question, “'We owed the association and they called the FBI?”  The paper then reported that the FBI agent already had called to apologize and promised to repair damage caused by more than a dozen agents who swarmed the home in a gated community of Greenacres, dug craters all over the lawn and seized a car and trailer-load of belongings. 

But,  “everything is OK now. It's all going to end peacefully”, the homeowner said.

The Attorney is quoted as saying the Association only wanted  "access so  they can pursue recovery of money from homeowners who fail to pay back dues.''  This is "maintenance, alteration or repair" of a home?  Or is it because of neighbor suspicions as first mentioned?  The Miami paper reported, without even so much as a question, that the association attorney gave three different reasons for the warrantless search of the homeowner's house.   The article made clear a 'deal was made' between the FBI and the association attorney, to use this slight of hand.  Is this reasonable, to use a sham excuse as a pretext for a warrantless search and seizure?  The "experts" said it is okay, according to the paper.  Is this what has become of our Fourth Amendment rights against unreasonable search and seizure? 

New Powers for an HOA Board – Warrantless Search & Seizure?
The association's attorney stated, "homeowners should not be concerned about a new trend toward unwarranted police searches."   The attorney said the board did not take it lightly but even "passed a resolution” before it invited the FBI into the homeowner’s house.  If I leave my house vacant for a couple of months, can the board pass a resolution to break in and take money they find on the table to collect for back dues?   Does this mean the Association can take possession without first obtaining a foreclosure judgment, on a pretext of claiming right of entry for maintenance and repair?  Is this the kind of broad authority that homeowners are now granting to their Boards?  We don't give that power to our real government.  Why would we give it to a bunch of nosy neighbors on an HOA board?  What's next?  'My neighbor makes frequent trips to Columbia.  I think he's smuggling drugs.  We'd better pass a resolution of the board and round up a posse to break into his home, and while we are at it we might as well invite the DEA?  Of course, we will claim that the weeds in the front yard posed a danger to the community which required breaking into the home.  Then, we will tell the press that it really is our interest to only recover back dues - admitting that the purpose for entry was a sham.  I just don't see this as a fair, legitimate exercise of the HOA board's authority. Can the HOA Board now say, "the FBI does not have probable cause  to get a warrant, and the reason for the warrantless search is a sham but none of that matters,  because we are only acting in the community's best interest"? 

Back Home the Constitution is Still Pretty Good Law
When a Watergate witness commented that "the idea that a man's home is a man's castle has been eroded", Senator Eugene Talmadge retorted, "Back home in Georgia we still think it is pretty good law." 

An HOA board should not have the right to enter our homes.  Our "Founding Fathers" rebelled against this very type of injustice, by outlawing the "writ of assistance" or "general warrant" that allowed the King of England himself or with assistance, to enter and "search any House, shop, Cellar, Warehouse or Room or other Place." John Adams wrote a provision for the Massachusetts Declaration of Rights based on a 1761 speech against the "writ of assistance". This Declaration of Rights formed the basis of the Fourth Amendment. Today, the Fourth (and 14th) Amendment provides Constitutional protections against such a writ, as conducted by state and federal government (instead of the King of England).  Are we now saying this protection does NOT extend to citizens wronged by HOAs?  Are we crazy??  Have we lost our collective minds?

An end run for a photo-op.
The powers of the HOA board are vast, and where Florida provides homeowners no effective remedy to enforce the law, these powers are virtually absolute. These powers are granted in the name of "contract". Around the time of the robber barons (the turn of the twentieth century), the Supreme Court called these powers the freedom or "liberty" to contract. Many state laws protecting workers were struck down as unconstitutional violations of the Employer's "liberty to contract."

The "contract" required a bargain between two parties, in which the State was loathe to interfere. Employers had the "freedom" to contract with their employees, without government interference. This benefit was mutual, of course, so the Employees also had the "liberty" to contract for longer hours, less wages and dangerous working conditions, without government assistance. It was the "mutuality" of contract; the "benefit of the bargain", that the Supremes wanted to safeguard. Later, that type of Constitutional reasoning was discredited, but its proponents have found a handy way to revive the "liberty of contract" in the modern notion of "privatization." Although the Supreme Court said that corporations that assume functions traditionally reserved to municipalities should be held to the same limitations as governments, more recent "business friendly" Courts have sharply limited this rationale. 

The HOA is generally regarded as a type of private corporation, free from government interference  AND free of governmental limitations (to protect its citizens' Constitutional rights). Association lawyers and property managers found a gold mine in HOAs. Politicians love HOAs as well. The need for municipal services is reduced when homeowners pay assessments on their own, for their own. Politicians, of course, can take the credit for lowering taxes. The HOA is an end run for a photo-op. It's value added: Your Home is in Good Hands With Enron.

The Benefit of YOUR Bargain
Did you know that your legislature has given you such powers of contract, to waive the protections that form the very cornerstone of our democratic freedoms? Yes indeed.

YOU have the freedom to contract for arbitrary governmental control without constitutional protections. YOU have the freedom to contract for a writ of assistance in return for a baseless promise of "increased homeowner value" .  And like the "Sovereign" King, these private governments can take away your home itself, with minimal due process from the courts, and no due process by a Board that is legislator, judge and jury (no functional equivalents of 5th and 14th Amendments in your CC&Rs).  Some states require NO due process in a court of law, where the foreclosure is 'non-judicial'!   Florida homeowners who think they have a constitutionally protected homestead right may be rudely surprised that they have signed those rights away in their "CC&Rs".     (Florida Homestead right is one of the few rights that DOES apply to protect homeowners against private creditors). In Florida, many developers now add such a waiver to the governing documents of the HOA. It's the "benefit of the bargain." 

Move into an HOA in Florida today, and chances are you are *contracting* to waive your constitutional homestead rights (as well as all your other constitutional rights.)  And in an area where homes without an HOA are increasingly more difficult to find, our "negotiating power" to refuse waiver of these constitutional rights is about as great as ...well, the bakers' power to negotiate with Joe Lochner for safe working conditions, or reasonable hours.   In the '20s, the Supremes ruled that the state's maximum hour laws violated a bakery owner's liberty to contract with his employees, to work them longer hours in dangerous conditions for the same wages. Today, that's called "at will" employment. Moreover, reducing wages by eliminating overtime pay provides the "flexibility" of illusory comp time and is "good for American families." But I digress.

The Need for Accountability and Licensing of HOA Homeowners
The Florida legislature has given the *Corporation* in the form of the HOA board the right to tax and spend for the "general welfare", make rules governing every aspect of a homeowner's use and enjoyment of his property, and enforce those rules through fines, liens and foreclosures. The HOA "board" is assumed competent to exert this total control without even a deminimis demonstration of competency and due care. The HOA government bears no burden of showing its actions actually benefit the community. Such "benefit" is an "irrebuttable" presumption, effectuated by the heavy lobbying of those who created an industry advising HOAs and teaching condo classes. However, when HOA boards have this kind of unfettered discretion and power, homeowners should have SOME assurance of their competency to do so. I would like to elaborate on one person's suggestion that all homeowners buying into an HOA should be required to pass an exam. HOA applicants should be required to demonstrate an understanding of their rights and responsibilities as potential board members---- their role as executive, legislator, judge and jury. And they should be subject to forfeiture of their HOA membership, should they willfully violate the law of the jurisdiction (Federal, Florida constitutions, statutes and the HOA governing documents). This shall not release them from the covenant restrictions that run with the land, but it shall preclude them from participation in association business. (or what's good for the goose is good for the gander doctrine of mutuality.)

What a homeowner must know before signing onto an HOA
The exam should be no less than a 15 hour exam to test knowledge of all law necessary to responsibly assume the role HOA boards have been granted by the Florida legislature.   In addition, potential HOA members must agree in writing to abide by all the laws of the jurisdiction, and acknowledge understanding that any violation thereof constitutes an irrebuttable presumption of willful noncompliance.  Willful noncompliance may result in fines, forfeiture of membership in the HOA, or foreclosure, at the discretion of a plurality of homeowners present at the meeting. Notice of this meeting is implied, through record notice. (Homeowners are put on notice by the recorded covenants that a vote of the membership may change the rules of the game.

What Homeowners should know before Buying into an HOA:  An Exam for Licensing to be an HOA Homeowner
The exam structure, and pertinent areas of law covered shall include:
1-1/2 hours of essay on basic contracts involving types of contracts (theories of liability and defenses) and concepts of good faith and fair dealing;
1-1/2 hours of essay on property--property rights and land use (specifically PUDs and covenants running with the land), and mortgage, title and lien theory.
3 hours (100 questions) of Federal and Florida Constitutional law (to demonstrate knowledge of the rights waived by entering into an HOA agreement).
1 hour (33 questions) on corporation law--non-profit corporations, and member's potential fiduciary duty of care and duty of loyalty as board members.
1 hour (33 questions) on criminal law -- elements of the crimes of larceny, embezzlement and false pretense
1 hour (33 questions) on torts -- trespass to land, defamation (libel and slander) , negligence, nuisance, false light , the invasion of privacy, negligent infliction of emotional distress and intentional infliction of emotional distress.
1-1/2 hours (50 questions) on legal construction and statutory interpretation (for those who follow the doctrine of *creative performance*);
1-1/2 hours (50 questions) on professional responsibility (to avoid liability for the negligent hiring of HOA professionals)

Follow the Rabbit
Mandatory Reading of:  Alice in Wonderland;  Because no amount of legal knowledge will help decipher an UnAmerican mishmash of quasi*legitimate*quasi*legal* structure that benefits only developers. association lawyers and CAMs (community association managers). 

You must follow the rabbit.

Note: This is not legal opinion;  It is a satire, but it highlights what should be alarming trends in HOAs....