What "rights" do we give away living in a covenanted community?

All,

I've been seeing claims that state we give away rights when we purchase property controlled by an HOA. Some claims even state that Constitutional rights are given away when joining a COA/HOA.

We all know that there are differences between rights and privileges. We also understand that often what is actually a privilege is seen by many as a right.

Now it is certainly possible, in contractual agreements, for someone to agree to not utilize their rights (example: credit agreements requiring binding arbitration vs. a jury trial). However, do members of an HOA/COA actually agree to give away rights or is it simply a perception caused by being uninformed?

If your willing, lets take a look at this issue and try to separate the facts from the myth.

Since this can be a passionate subject for some I propose the following two rules -

1) keep it civil (agree to disagree)
2) provide the basis for your belief but keep on topic

Property Maintenance -

I have a right to maintain my property how I see fit and can afford!

I suppose that we have all heard this or versions of it before. Is this really a right?

Grass to high - The County or City will see it as a health hazard
Buildings in Disrepair - The County or City can condemn the property or deem it unsafe to live in.
Junk all over the yard - The County or City can see this as a health hazard.

Don't Associations just have stricter standards then the County or City?

So is it a right or perceived right? To me this is a perceived right.

Is it?

There are other avenues to utilize freedom of speech (newsletters, meetings, talking to your neighbors, write letters, Internet, etc.). Many governments are prohibiting display of signs in traffic medians, this isn't seen as a denial of freedom of speech.

The Bill of Rights provides that the government shall make no law abridging the freedom of speech. I suppose that an argument could be made that not being able to post a sign is diminishing your right of free speech but another argument can be made that with other venues available, your right was never diminished.

Freedom of expression? I've never heard of that one. I've heard of "freedom of expression" but not a right to expression. Can you tell me what you use as the basis for saying expression is a freedom? I ask because I see speech and expression as two different things.

I understand Tim's reasons for starting this thread and it is a worthwhile discussion but my take on this is:

You have the right (and the obligation) to read the governing documents BEFORE you buy into an HOA and to decide if you wish to abide by the restrictions they impose. You have an absolute right to choose to live elsewhere. What you do not have is a right to claim after the fact, if you didn't bother to read the documents, that they unfairly restrict your constitutional rights.

as per the international property maintenance code = 12"

? slightly worn paint ?

? one or two cracked siding boards ?

? aging roof ?

etc

If the government were to say that your freedom of speech only permitted you to voice your opinion while standing on a soap-box in the town square, or to publish via news-print, because that's what existed when the Bill of Rights was written, and thus prohibited/restricted speech in any other form would that not be a violation of your 1st amendment rights?

Tim,

In many cities and counties, new developments are required to be HOA's. From what I have seen there is little supervision or control over what the developer adds to his covenants. I am unaware of any court decisions that address this issue, but it has always seemed to me that if a government agency dictates that covenants must be adopted then the HOA is operating under "color of authority." That is, the HOA is an extension of and an agent for the city or county that dictated its existence.

Under this reasoning, the HOA cannot adopt rules or procedures that would violate the owners' Constitutional rights. This would not only prevent the HOA from trying to prevent gunownership but would also require the HOA to follow due process in bringing complaints against owners. One could make an argument that the color one chooses to paint his home is a matter of freedom of expression that is beyond the control of the HOA.

I think with the growth of HOA's and the requirement for them imposed by government agencies that it is merely a matter of time before someone brings the above argument before an appellate court.

The Right of Free Speech is not absolute even outside of an HOA. You can't shout fire in a crowded theater, call a member of another race a name and it's labeled hate speech and not protected. Most businesses limit the right of Free Speech even outside of the workplace. How many people have had their careers come to an abrupt end for mouthing off about their boss or employer on social media sites?

Page 48 and 49...unfortunately, I am now allowed to tell you the name of the book. It's explained in great detail throughout the book but those pages pretty much "hit the nail on the head."

HOAs are "private governments"

In reading the postings on this site over the past few days, I realize there are a lot of well-meaning people posting on here. I also realize they do not have the 100% big picture of HOAs in America or a 100% understanding of what CC&Rs are. When I bought my house, I sure didn't. I do now.

I also realize most people on here are completely naïve to the magnitude of what is happening across America in HOAs.

Most people in general who live in an HOA do not realize they have signed to purchase a piece of real estate but also every neighbor they have just became their business partner. HOAs are a business. Any debts incurred by the HOA are equally the responsibility of each homeowner. If the HOA board decides to get in a big legal battle the cost of the litigation falls to the homeowners. In certain circumstances the legal will be paid for by the insurance.

Very few states have any governing over HOAs or property managers. As I understand it, Kansas is the only state with a Homeowner's Bill of Rights. I know it's on the books, I fought for it long and hard and I was there when the Governor signed the bill into law. After he signed he turned and handed me the pen. I also have an enrolled copy of it. I fought for that Bill of Rights not for me personally, but for all Kansans suffering in the HOAs in our state. It is not a "perfect" law but it was a start. I am forever grateful to the legislators that gave equal time and attention to the property managers, HOA attorneys, and the few board members that strongly opposed any governing over HOAs and to me and a few other homeowners who stood our ground and fought the battle all the way to the end...and won. I stood before the senators and told them I was not there to ask for their help, I was there begging for their help. My supporting documents were so strong and truthful they never had any doubt I was not telling them the truth.

Folks so much information is out there that would truly help each and every one of you. It would help you personally and as board or community members.

An attorney that is a professor and expert in the field of HOA's. And an investigative journalist for 40 years that spent 25 years researching and compiling has a recently released book and website with every detail imaginable about HOAs. I'm sure you can locate these highly-skilled people with some internet searching and I'm sorry I cannot quickly guide you in their direction.

You may not like what you read or want to believe everything, but its impossible not to believe these highly-documented resources. Simply impossible.

NDR

Oh Melissa,

You never cease to amaze me.

I should have stated the writer of the book....the investigative journalist (retired) started the process of research and writing about HOAs because of a HOA where he owns a home in Morrison, Colorado. There has been 5 lawsuits...and he's spent a total of $500,000.00 yes, 1/2 of a million dollars on attorneys for those lawsuits!!!!! He bought in there not realizing he has signed away his US Constitutional Rights. Unfortunately, his wife was diagnosed with MS just as he was building the house....he needed approval to change the design to include a wheelchair ramp in anticipation of her future condition..........and that my dear Melissa is where the battle began...because the HOA president told him "We don't want gimps in our neighborhood!" This happened before the ADA laws were enacted in our country. He did more research to learn that HOAs were started in America to keep blacks and Jews out of pristine white neighborhoods. I know all this to be factual because it all started in Kansas City with JC Nichols.

Because of his career....and he's had quite a successful award-winning career....he felt driven to educate others about his HOA experience....he felt compelled to educate volunteer board members about what slippery slope they are heading down when they use attorneys for their first defense against homeowners. He felt a moral obligation to his fellow Americans to expose the corruption and embezzlement that is rampant in HOAs today.

He retired 4 years ago and since his wife is completely bedridden and he is her caregiver he's spent all his time talking to people all over the country doing research so he could provide the most comprehensive book ever on HOAs.

I know attorneys that have read this book and called me and said OMG! This guy is incredible. This book is incredible. Not one person that I know has read this book and not had their jaws drop.

You say you have been in the trenches? Have you been in the trenches as deep as this guy? Another author has been published by the Yale University Press. Are you telling me you are an HOA scholar? Really? I will buy your books tonight and read them. Please....guide me to where I can find them.

You clearly have not paid close attention to my postings. I have not read a few books and come here. Your snippy little blankets statements are not becoming to you. And, you smart-arse analogies about sheets and blankets show me you are not a professional person with the skills to compete with highly-educated successful people.

The choice is yours...you can stop being a right-fighter and learn from others and become even more knowledgeable or you can choose not to. Either way, what you do does not change my life one way or the other, however it could change yours.

NDR

"I just don't see the correlation between giving up my constitutional rights and living in a HOA."

You said it, I didn't.

That statement right there tells me you do not know all you THINK you know about owning property in an HOA. What it DOES tell me is: You don't know, what you don't know.

I rest my case.

NDR

Nila,

Since I work in Broadcasting I tend to read what is published with a bit of skepticism. Even if I agree with what an individual is saying, I like to verify the basis of their opinions for my self. The old Trust but Verify method of learning.

I've looked at one of the articles you have read. Although I agree with a lot of what the individual is talking about, I became skeptical when four of the seven sources in his bibliography were his own works and appeared to be earlier publications of the same paper. That said, the paper discussed the need to for Associations to be financially prepared for future expenses and I don't think anyone on this forum would disagree with the that message. In fact, this forum has many threads on the need to properly fund reserves.

Of course, since you have a corporate background, you know that actually implementation is far different than the research done. This is what Melissa meant when she says she has been in the trenches. I can relate to what Melissa said because like her, I had to do both the research and the implementation on various issues. The hardest one was advocating against an assessment increase one year because the Board failed to do a Reserve Study followed by actually requesting a 20% increase in assessment the following year after the Reserve Study was done.

In your initial post you stated that you have been in your Association for 8 years. We know that you have done research and you say you had a hand in your States HOA laws. Your advice to others who ask for assistance is solid, which gives the appearance that you have served on your Associations board. However, you have never posted that you have served or are serving on your Board. Hence my question, Are you now or have you previously served on your Associations Board?

On a side note, you may or may not have realized that a comment "I did not realize when I purchased in an HOA I was signing away my US Constitutional Rights" in your initial post was the reason I started this thread. Unfortunately you haven't identified what constitutional rights you believed you signed away. I am actually interested in learning different points of view on this. It doesn't matter if we agree with each other on that point of view. The point is to learn and understand the other point of view.

Learning to see things from different perspectives is imperative when serving on an Associations Board or a Committee. When we see things from another point of view, you can find things in common that can be agreed upon and likely work out a solution to issues everyone can agree with. Real World example, I'm in the process of drafting a rewrite of our Association's Owners Manual. This manual contains all our governing documents but also describes how the Association works. If I can learn why some see living in an Association as giving up Constitutional rights perhaps I can develop a better draft that will minimize this impact.

I would have to say sometimes yes and sometimes no.

I had already provided a link to a Washington Post story about signs being prohibited in traffic medians. I personally don't think this violates the freedom of speech.

As Glen pointed out, the courts have stipulated that freedom of speech does not include the right to break other laws when exercising that freedom. As I posted in my earlier post, to me, limiting a method of delivery is not the same as violating your freedom of speech.

Personally, I don't care if you have signs in your yard. However, our rules prohibit them (except where the laws allow them). Since you can't have a sign in your yard, I'd point out that you can have a sign on your car. You can wear a sign, you can post on the forum section of our website, heck, as long as I'm on the board, I'll offer space in our newsletter to any member that desires it providing the tone is civil and doesn't violate other laws, I'll have the Association publish it.

Dave, you have made some excellent points. It's been good learning from you.

Tim

Tim,

I am glad to know you read Tyler Berding's report. Possibly I found it more interesting because I could see how it closely described exactly what has happened in my HOA? Either way, if you found something of interest or not, at least you made the effort to check it out. I think you will agree he is not some crack pot writing garbage.

I'm also glad you work in broadcasting. Possibly you know or have heard of the author of the best book I have read on HOAs? Again, his work nearly describes my HOA to the tee. I had never heard of him until I read his book. I contacted him after reading the book and at times he will email asking for me to do a guest blog on his website. I tell him we are HOA POW's and its nice to know somebody out there can relate.

I have read and studied massive amounts of information but since you are authorizing me to disclose the sources I feel have been most helpful to me...here they are:

www.neighborsatwar.com and the book, Neighbors At War by Ward Lucas

Reviews are available on Amazon as well.

This book is hard for readers to put down. There is history. Humor. And of course lots about HOA's. And HOA Syndrome. In there you will find the details about the US Constitutional Rights/HOAs as well. His personal HOA battle in Morrison, Colorado and some interesting tidbits about his 40 years as an investigative television journalist. He welcomes your comments on his website and if you wish to send him a personal [email protected] He is also on Facebook and Twitter under Neighbors At War

Privatopia and Beyond Privatopia by Evan McKenzie he also has a website...I'm doing this from memory (google if this is wrong) www.privatopia.com

Professor McKenzie is a scholar and lawyer so his books are more challenging. Excellent source of information but some people tell me its a struggle for them to follow all the details. He is also quoted in many newspaper articles all across the US. Often times he is called upon as an expert witness in HOA trials.

There is also a website with a radio show that I enjoy listening to. I can't recall the name but you can google and find it. Sorry, I'm not sure how to go out of this blog and come back without losing everything to go to my files. google Shu Barthalomew She has various different guests as well as Ward Lucas and Professor McKenzie on to talk about HOA issues. That is all her show is about is HOAs.

Again, these are the best of the resources I have located. Should I come across something else I think you will appreciate, I will share it. Ward Lucas' book also has a number of suggestions on page 346. To be honest I have not read all those. My time has been consumed...I am preparing to be called as a witness in a major lawsuit. Just when I think I've heard it all....this homeowner was beaten with a crowbar by an HOA board member. I think the legal bills are now something in the $200,000.00 range for the HOA.

Oh, you asked have I served on my HOA board. The answer is, no. I did offer to in 2008 with a team of professionals that I put together but the board had minions out telling lies to scare the community from having non owners on their board. I had also exposed the 10 million dollars unaccounted for and some were blaming me that their precious 26 year president had died from the stress I put him through. I should tell you, the average age in my community is probably 75-78 years old. Younger people (I'm no Spring chicken) on the board scare them. They don't come from business backgrounds (lots of retired school teachers and widows)and new ideas and professionalism are not on their radar. We did manage to get a really sharp young woman in her late 20's on the board but after a year she threw her hands up. Too much nonsense, fighting among board members, inability to make decisions and the high-priced property manager's antics. Since there is a personally liability in Kansas that comes with being a board member, my attorney advised I would be best served to keep my name free and clear of being a board member. It's all okay with me. And it's fine that the board looks at me like I'm the "rat" that plugged the plug on Bernie Madoff. Not a problem. When I go to my grave I will know I stood up for what was right, even when I was standing alone.

Thank you Tim for your professionalism, enjoy the reads!

NDR

Interesting, Tim. Perhaps I have not listened to the show enough times to hear that or perhaps, I have suffered in my HOA so long I can relate to the negatives? Well, that's all I could relate to because there has not been one positive thing that has happened in my life since I moved into this HOA. Losing $200,000, the pigment in my skin, and spending over 100 hours per week dealing with one problem after another...yes, I can relate to the negative things. Well, wait...I found the legislative process extremely interesting. I learned the value of voting and electing the right people and I saw how my tax dollars were spent on the rehab of the capitol building. So, yes there have been positives but they were made possible by the negatives in my HOA. I guess they call that a "Catch 22?"

I do honor and respect the fact you and I are living very different experiences in our respective HOAs. I grew up in a wonderful neighborhood (non HOA)white collar, we vacationed together, ate meals together, had keys to each other houses, I babysat the little kids, our parents played cards, when we were ill the doctors came to the house, the sales executives brought all the promo items home to the neighbor kids. It was fabulous. I've owned several other houses (all non-HOA) and because of my career I didn't have time to do all the social stuff but my neighbors were awesome and I made sure I spent time with the elderly ones. I moved into this HOA with plans to be semi-retired and do lots of volunteer work and work seasonal jobs in resorts and national parks...just fun stuff, but I thought it would be perfect to not have to worry about the grass, exterior maintenance, etc. Impossible dream. Yet, I once lived like you do now and I am so envious. To live in a carefree happy cheerful place with neighbors smiling and hugging each other....probably baking each other cookies...nice and wonderful. I hope it stays that way....forever.

I cannot and do not expect you to relate to my situation anymore than I relate to the three young girls held captive and raped and beaten in Ohio for ten years. That story makes me feel sick, angry, in shock, you name it....I cannot relate on an emotional level but I do not doubt for one second they were living a hellish nightmare and my heart goes out to them. I worked in aviation during 9/11/01. I know the entire nation was in shock and mourning. But only those on flight crews can relate to that day in the same way, and the days, weeks, months and years that have followed.

NDR

Sorry, you got that impression Glen.

When Tim said provide my sources I did and assumed it was easier for him to read it straight from the source than for me to sit and type for hours.

I feel I've been very forthcoming with information. Goodness, I've shared enough at this point any one of you could locate my phone number and call me up right now. I have absolutely no clue who any of you are other than your name and state.

Truly sorry for disappointing you.

NDR

Glen,

Tim granted me permission to reveal my sources with a warning not to repeat them but the details of how I signed away my US Constitutional Rights are found in the book Neighbors At War by Ward Lucas book.

Here are a few tidbits that you might find of interest. Some of our homeowners have been told by their attorneys that the by-laws we have are not written in accordance with our state laws. Even my attorney said...these must have been written by somebody at their kitchen table who did not have a law degree.

We had another board member who had been through law school back in the 1950's but never practiced law....he re-wrote the covenants and put a cover that said they were passed and effective on XXXX 26, 2010, but they never got enough votes to pass them. Those are being given out to new owners. They are a hot mess.

In 2008 when I was trying to get help with all the money issues, etc. Every place I went...city...county..I was told....sorry there are no laws for HOA members. You should contact your legislators and see if they can help. So we did exactly that and spent two years getting a bill worked and passed into law.

So, from my experience...goodness knows what is legal and who has what rights and who doesn't. I know I didn't have anything to stand on until we got this Bill of Rights passed. I just read tonight On the Commons that an attorney is going to be a guest talking about for 25 years in Florida all kinds of legal things have been done incorrectly.

I've spent years now talking to people all across the United States. I'm not getting information from the group like you guys have created on this website. I'm hearing insane stuff. And, once I signed on to this website I've learned how beautifully some of these people are living in their HOAs. Now, I don't know if they are living in HOAs of 10 houses and 9 are empty.....or if they are living in HOAs with 2,500 houses. I mean really....you guys/gals are the poster children for Happy HOAs USA. There are a few like the flag pole guy today...who plans to sell and run for his life from his HOA, but everybody seems so in love with their HOAs. Melissa has me confused because one of her postings says she was voted off of her HOA board...then she says she lives 700 feet from her HOA (inside/outside??) but she is adamantly telling me she's basically written the book on Happy HOAs USA.

So, best I can say is...keep doing things the way you are because its working. I wish I knew where all these HOAs are because I'd sure be making a trip around the country to see what a perfect HOA looks like. I'm skittish now so I'd never buy in one but I'd just like to experience just one day of HOA happiness.

Take care now, Glen.

NDR

You see Glen most folks who make such claims never read the Constitution. And of they ever took the time to do so they would not understand it.

What happens is they read a book that SAYS "HOAs force you to give up your Constitutional Rights." and no one bothers to ask what are those and which ones does living in an HOA cost me?

And of course the legions of small minded folks goes off to mmarch against lsoing rights they did not understand but somehow they lost them and are willing to do battle to get them BACK!

Well gosh darn it's ANTI-American I tell you. We can't let them take our HOA rights granted in the Constitution away! Anyone know what they are???? That's not important lets fight the fight before they come to take our guns.

Simple minds can be led simply..................

First a clarification. I don't have authority to grant you anything on this site. That is up to the moderators.
I just pointed out that the moderators don't have an issue referencing materials, they have an issue in selling or promoting.

Second, I think Glen will agree with me, the question wasn't why the author felt constitutional rights were being signed away. The question was what Constitutional Rights do you believe you signed away. You didn't answer the question. Preferably this would be in your own words and not paraphrasing or repeating someone elses words.


Actually I live in a 130 lot development that is self managed (no MC or PM). Others are living in various sized Associations. One I know of is in a multi-million dollar condominium development.

Am I in love with my HOA - No. Will I purchase property in another HOA - I might not have that choice. Am I better prepared to know what to look for if I do purchase in another HOA - you better believe it. I'm better prepared because of this site.

We discovered that the membership can make changes if they are willing to become involved in the Association. Change won't happen overnight, it takes time. In my situation it took 3 years of educating the membership before changes happened and those changes have been slow but steady. This was done by working within the Association vs. forcing change from outside the Association.

Often, individuals bring issues to this forum that is too late in the process. When that happens, the available options are far less then had an individual found this site earlier. As an example you mentioned in another thread that you had located outside individuals to assist and ran as a slate for seats on your Board. Had you found us prior to that I would have advised that this would give the appearance that you were trying to take over vs. help deal with a bad situation and would likely have the effect of alienating members who you need to support the changes you want made. I would have further advised that a better course would be to attempt to run for the Board yourself. If elected great. If not elected, volunteer to serve on a committee. Then utilize those individuals you found as a sounding board and for advice. This would have allowed you to gather support for the changes that were needed.

That does happen. Perhaps, if you're on this forum long enough, you will see that not all Associations or all Board members are the same.

I think it depends on what you consider a "right" versus a privilege. There's a great deal of confusion in this country as to the difference between the two, and a growing sense of entitlement that believes many privileges are actually rights.

In my experience, 90% of the HOA restrictions are just a restatement of local codes - the HOA just tries to enforces them all the time, where the city might only enforce them if there are complaints. I've tried to explain this to homeowners a million times, using trash bins as an example. The HOA restriction is the same as the City's, only you could leave your bins on the curb all week and the City won't do anything unless your neighbors call and complain, whereas the HOA won't wait for your neighbors to complain.

Staying on topic, Well said Julianne

The US Constitution is a safeguard, primarily, against federal government intrusion or restriction of certain inalienable rights granted by God. HOA's are private organizations where homebuyers completely opt-in as a condition of residency and participation. There is nothing to debate as any HOA-protected property buyer is, in theory, temporarily restricting their OWN behavior and signing a contract stating as such. No property owner is ever coerced by the government or the "quasi-government" of the HOA. In fact, HOAs aren't at the real estate closing.

The term "Grasping at straws." come to mind. I'm not going to say those restrictions don't occur in any set of CC&R's but if they do, I'll bet they refer to what can happen in common elements, not individual homes.

Could you come up with any examples that aren't prohibited or regulated by law in the real world? For example even in states with concealed carry, there are certain places like schools and bars where you are not permitted to carry a gun. Ever try to hold a prayer meeting in a school?