I should charge money for psychic readings! It was four or five years ago that I began predicting the advent of drones and that they would eventually be cheap enough for the boards of Homeowners Associations to start using them to inspect the most private part of your property. Your nude sunbathing or hot tub trysts could be played on the TV set at the HOA clubhouse and you probably wouldn’t win a legal case.
Well, so far I’m batting about 90% so far. The drones are here. They cost as little a four hundred bucks. And they’re popping up in thousands and thousands of places. Realtors are using them to advertise homes and neighborhoods. Terrorists are using them to interfere with commercial aircraft. Voyeurs are using them to videotape you and your lover on the backyard blanket. The FAA only controls drones in airspace over 1000 feet.
Privacy? Fugeddaboutit!
There’ve been a number of cases where homeowners have shot drones out of the air. The shooters usually end up being arrested and jailed. But it’s a whole new area of developing law and will probably take a decade or more to resolve. In the meantime even if a jury finds you not guilty you will have expended hundreds of thousands of dollars on legal fees.
The word ‘Christmas’ must be anathema to some people. In fact, any word containing the letters that spell C-h-r-i-s-t makes people spit nails. Oh, they’ll use the word, but only while slinging cuss words around.
In Arizona, Roger Walklin of the Velda Rose Estates Homeowners Association, says a bunch of little old ladies who stitch Christmas stockings each year in the clubhouse are no longer allowed.
“You’re a religious group,” he said. “It’s against the covenants to allow religious groups in.”
Each year, Ferne Skidmore and her friends stitch about 3000 Christmas stockings, stuff them with goodies and hand them out to less fortunate kids.
“We’re not a religious group. We have no religious affiliation at all. We donate stockings to anybody who wants them. Besides, there’s nothing in the covenants that says religious groups can’t use the clubhouse.” Ferne is now taking the money out of her air conditioner repair fund to take Walklin to court.
I’ve got a much better and cheaper solution for Ferne. Don’t call it the ‘Christmas Stockings Project.’ Call it the ‘L’il Hitler Stockings Project.’ It’s an HOA for gosh sakes. That one might slide right by and nobody would catch it.
BTW, Arizona property manager Dave Russell is outraged and he’s already offered his community clubhouse to the ladies for free. No hassles!
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.
