There are some scattered court cases which may have an interesting impact on Homeowners Associations, an impact many of us would love to see. From the National Law Review, the West Virginia Supreme Court of Appeals ruled that HOAs are debt collectors. We all know they file liens and harrass homeowners into paying dues, fines, collection costs, attorneys’ fees. But if they’re debt collectors then they have to follow all the laws governing debt collections. With what we know about HOA bullies that could subject associations to huge fines.
The Supreme Court’s recent disparate impact decision has been discussed before on Neighbors At War. It will most likely lead to a huge increase in lawsuits because people were discriminated against even if there was no intent to discriminate. Well, housing discrimination is basically the middle name of many HOA board bullies. This creates tremendous financial liability for all HOA communities.
Then there’s the Nevada high court ruling that HOA liens have super-priority status over mortgage companies. Nearly two dozen states have such rules. Lenders might become extremely wary of lending money to potential buyers of HOA property. Once that trend starts, HOA home values will crash because buyers won’t be able to find lenders.
Poor George Clooney. The American actor can’t seem to catch a break from his new British neighbors.
Clooney and his wife bought a 16 million dollar property in rural England…a chance to get away from the celebrity stalkers and paparazzi. But his new neighbors are outraged at his presence. More accurately, they’re outraged because he put up an extensive video security system which they say invades their privacy.
Having a video security system of my own I would bet the vast majority of Clooney’s cameras are fakes. Nobody who has security cameras has the time to watch them, even if they are real.
It’s another sad day for Nevada homeowners. Federal Judge James Mahan has given another one of the Las Vegas HOA swindlers a sissy sentence. Organized crime swindler Charles McChesney was sentenced to 30 months in federal prison. Ultimately, he’ll only spend 15 months there.
Homeowners in Nevada lost untold millions of dollars when this crime ring ripped off Homeowners Associations all across the valley. They’ll never get a dime of that back. This was a vicious financial crime that completely changed the lives of many decent working and/or retired people. To give these swindlers only 30 months is a crime in itself. Even though only a dozen Homeowners Associations were named as victims in the case, inside information says there may have been hundreds more.
The FBI generated about four million pages of evidence and testimony. Had the investigation exposed the entire Nevada scam the evidence could have run into the hundreds of millions of pages.
Think of this: If crooked HOAs and management companies across the country were put through the same kind of investigative scrutiny there would be millions of convictions. There just aren’t enough prisons to hold everyone.
Yes, it’s a sad day for Nevada. But it’s even sadder for the rest of the country.
I could hardly believe my eyes and ears when I read this article and watched the videos in the Bradenton Heraldarticle regarding Carlyn Estates Mobile Home Park in Palmetto, Manatee County, Florida. I honestly had to dry the tears from my eyes. You MUST watch these short videos, particularly the video of the mobile home resident who is vehemently against having the local Food Pantry distribute free boxes of food to 28 of her neighbors.
Talk about nasty. She thinks that her fellow HOA members should get help from their families, or call social services and “hand over their checks” to a nursing home. Wow. A total lack of compassion.
Here’s the reality: for many seniors, there are no family members to assist them. These 28 seniors are unable to get to the food pantry, because of illness, disability, or lack of transportation, so the Hope Center Food Pantry has been making weekly distributions where they live. One resident, recently widowed, is quoted in the article, stating that the owner of the mobile home park, ToniaSonju, is denying her the right to take care of herself, and causing her physical and emotional stress.
What’s the issue?
You see, according to another article in the Miami Herald, the HOA policy, written by Sonju, prohibits “soliciting” of any kind. Residents have received violation notices from the Park owner, that state the following:
“No peddling or soliciting or operation of a commercial enterprise is allowed in the park without prior consent of the management. You continue to operate a commercial food bank in Carlyn Estates in violation of Rule 52 which causes the disruption of the park, causes unsightly and unsanitary conditions, significant trash, along with rats, roaches, and mice, etc.”
Christie Castro, President of the Manatee County Senior Advocacy Council has tried to speak to Sonju on behalf of the senior residents, but Sonju has refused to talk to her. Lenworth Gordon, director of the Hope Center Food Pantry in Palmetto, has spoken to Sonju, but was unable to change her mind regarding HOA policy. They argue that since the food is donated, there is no “solicitation” and no commercial business activity. There is no stockpile of food to attract pests.
Castro believes that these seniors need advocates to prevent them from being bullied in their HOA. The residents tried to attend the last HOA meeting to discuss the issue, but it was cancelled at the last minute. Now the residents are trying to arrange a meeting at one of the local churches. The advocacy group is hoping a local attorney will provide pro bono assistance in resolving this matter.
The local Meals on Wheels has offered to provide delivery of meals to those residents who qualify.
Kudos to Hope Center Food Pantry, Manatee County Senior Advocacy Council, Meals on Wheels PLUS, and both the Bradenton and Maimi Herald news companies for bringing this important issue to the attention of Floridians, and the general public.
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.
