I guess we learn things all the time and this one is interesting. It’s a paper published in the University of Cincinnati Law Review about the 2008-2009 mortgage meltdown. Lending institutions are way behind on dealing with all the foreclosed properties. They’ve hired property management companies to help deal with the overload.
Now there’s been a rash of lawsuits by homeowners late on their payments who’ve come back to find that their homes have been trashed and their personal property stolen. Seems it’s being done by these third-party contractors hired by the mortgage companies.
I wonder if there’s any spillover by management companies that foreclose on liens on people in Homeowners Associations?
As the 2016 Presidential election campaign heats up, so do political sign controversies in homeowners associations. Here’s a perfect example from Florida, a dispute over a Hillary Clinton sign in a resident’s window.
Howard Finkelstein (2) is Public Defender for Broward County in Florida, but he moonlights as a legal analyst for the local Fox News affiliate. According to Finkelstein’s analysis, an HOA can deny a resident’s right to display a political sign as long as their documents are “written correctly,” and if the homeowner took this to court, she would “probably lose.” However, an HOA cannot allow some types of political signs (such as the one we see in the video about gun ownership rights) and not others ( a sign supporting Hillary Clinton).
That would be Selective Enforcement: that’s the kind of inconsistency that gets HOA Boards in trouble, the kind of stuff that leads to billable hours to the Association attorney to defend the indefensible. Guess who pays for this folly? Why, that would be all the homeowners.
Of course, Howard brings up the standard argument that because it is not the government, a private HOA can make up rules prohibiting signs. Or, as I like to say, the standard industry claim is that the Bill of Rights Need Not Apply, including your guarantee to Free Speech under the First Amendment.
But, is that absolutely true or is subject to interpretation?
Recent Case Law opens the door for future challenges
In 2012, the NJ Supreme Court, in Mazdabrook vs. Khan(3) ruled that an Association’s restriction against placing a political sign inside a condo unit’s window was unconstitutional under state law. Of course, the facts in Mazdabrook bear a striking resemblance to the action taken by Valencia Morris at The Enclave at Cutler Bay. Ms. Morris was threatened with a fine if she did not remove the small political sign she had placed on the inside of her unit’s window.
More recently, in 2014, in Dublirer vs 2000 Linwood Avenue Owners (4), the NJ Supreme Court upheld that the Association violated the state’s Constitution when it denied the owner of a Fort Lee Co-op the right to distribute campaign leaflets as he contemplated running for a seat on the Board.
In both cases, the NJ Supreme Court ruled that even a private organization such as an Association-Governed Residential Association, cannot restrict “too much speech” and rejected legal arguments for the Associations that a homeowner “gives up” Constitutional rights by taking title to an HOA property.
Now, some FL attorneys will argue that the NJ Constitution offers greater protection of rights involving private organizations. So let’s compare the two state Constitutions on the issue of free speech.
6. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
SECTION 4. Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.
Now, I’m not an attorney, but these two provisions seem to say essentially the same thing.
Are the winds of change blowing?
Allow me to leave the reader with one final thought, courtesy of the First Amendment Center at the Newseum Institute. In their recent survey (7), they asked: Does the First Amendment go too far in the rights it guarantees? Below you can see the results. (click on the graphic to enlarge)
Looking at perceptions of First Amendment rights for different age groups, it’s quite clear that younger generations are not going to put up with private corporate HOAs restricting speech! Time is on our side.
Ah yes, I do like to keep you posted on embezzlers who steal from their their neighbors. It’s such a personal crime. You have to look your neighbors right in the eye and tell them, “I’m robbing you blind and you’re too stupid to know.”
We’re not too stupid. We just don’t have the guts to spread the word. But that may be changing.
Lorene Lutey Treml, of the Meadow Valley Condominium Association in Wisconsin: You’re a crook. A firing squad is too good for you.
I know nothing about this California broadcaster or podcaster, but I grew up in Seattle and know how crazy some of its legislators can be. This guy sounds fanatical, but with my Seattle background I think he definitely deserves to be listened to.
OK folks! I’ve been an investigative reporter for forty years. And during that time thousands upon thousands of documents have been released to me. Oh, there’ve been two or three that were held back, but always because of some extraneous circumstance usually relating to a name a prosecutor or a judge wanted held back for personal or political reasons. And we usually found a higher judge who ordered the documents released.
But Damn it! Political reasons don’t apply here! Personal reasons don’t apply. Nevada homeowners lost hundreds of millions of dollars when this organized crime ring crashed Homeowners Associations all over Nevada. Property values there still haven’t recovered. It wasn’t just a few dozen homeowners who were hurt in this monstrous scam. Millions were hurt. Taxpayers paid for this years-long investigation. Families went broke. Many lost their homes. Lives were lost. People killed themselves.
Who are you trying to protect by illegally keeping these files secret? A scummy judge who was able to escape indictment? Perhaps a scummy bigtime politician who, with his son, have become multi-millionaires investing in phony land deals based on illegal insider knowledge about housing trends in Nevada?
You found 100 “people of interest” in this case, but didn’t prosecute them because you thought it would be too expensive? Isn’t that a sneaky way of letting your friends and political boosters off the hook? Wouldn’t a thorough vetting of this whole slimy affair be a way for you to crawl out this greasy morass?
Federal Judge Mahan, there’s a lot you ought to be ashamed of including the awesome lack of meaningful prison time you handed out to these mobsters.
Now, you should be ashamed of letting your political cronies talk you into not releasing documents that you feel might shame your pathetic state and your miserable bench even further. I’ve learned over the years that when something doesn’t smell right, you start looking for the source. Something real close to where you’re standing, Judge Mahan, doesn’t smell just right.
