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’m so glad someone sent me this link. It’s a Skype discussion between some concerned HOA members in Minnesota and Dr. Gary Solomon. Solomon is one of the premiere experts on the national HOA scam and every second you spend watching this video will pay off many times over.
The link below has absolutely nothing to do with HOAs. It should. But it’s interesting nevertheless. It’s also a chance for me to tell another one of my weird personal stories.
It was the early 70s and we were three years into our marriage. We had our second baby son and we were living in relative poverty. Still, we went looking for a home and found one for sale on the Seattle Eastside. I think the original price was around $30,000 but I calculated that all we could afford was $23,000. I gave the owner 200 bucks cash for the earnest money deposit and since there was no Realtor involved and nothing to sign I wrote up my own contract on the only paper in the house: A paper napkin. What was I thinking? I was just 24 and still dumb about life.
The owner of the house signed the paper napkin, reluctantly of course. I know he had regrets about accepting my low-ball offer, but he still honored our agreement. And I carried that napkin into my bank to see if they would give me a loan. Based on the signatures on the napkin they gave me a full loan.
After getting the TV job in Denver a couple of years later we sold the house…and got $36,000. Had I kept that old house it would be worth more than a half million dollars today! You win some, you lose some.
