|Posted on 8-6-2003
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.
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.
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?
Powers for an HOA Board – Warrantless Search & Seizure?
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
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
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
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
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
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.
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.)
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
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
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)
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).
must follow the rabbit.
This is not legal opinion; It is a satire, but it highlights what
should be alarming trends in HOAs....