Home Owners Association Threatens Residents With Lawsuit For Online Criticism
from the not-how-any-of-this-works dept
The fights involving Home Owners Associations (HOAs) are so legendary and stereotyped that they've even been a minor plot point in Seinfeld. The general stereotype is that HOAs involve insane political power struggles, significantly out of proportion to the actual issues at hand. It is often an example of Sayre's law, in that the stakes are so little, yet the disputes are much more vicious and out of control than elsewhere. I'm thankful I don't live in a place with an HOA, but for many years I did (as a renter, not an owner) and remember receiving a long (7 pages typed, I believe) letter from an owner complaining about HOA battles and claiming that he was afraid to go to the next HOA meeting for fear of being shot by another HOA member, and going on and on about threats of violence.
In other words, petty squabbles in HOAs all too frequently get blown way out of proportion, and people take them way too seriously. So, it's perhaps of little surprise that an HOA in Gilbert, Arizona, is taking things so far as to violate the 1st Amendment, and is threatening to sue residents over social media posts. Perhaps not surprisingly, the community in question has the type of name that would fit in well with Seinfeld's Del Boca Vista. In this case, it's Val Vista Lakes (VVL).
Following elections, the board proposed a social media policy restricting opinions about the board on Facebook. It was vehemently opposed by the community and quickly tabled.
Then a letter from a law office representing the board showed up at Nardecchia's home.
"They are threatening if I don't remove any content that frames certain members of the board in a negative light," said Nardecchia.
Threatening her with $250 daily fines as well as taking away her access to community amenities.
The letter was sent from a law firm paid for by HOA fees to at least eleven residents.
Other HOA members received similar letters:
The letter demands posts that are disparaging, speculative or defaming to board members be removed immediately. It also cites past incidents including posts that said that board members altered or manipulated votes in annual elections and that board members purposefully retaliated against members in the association. Opinions that now come with consequences.
"I really do believe in that freedom of speech. We are a diverse community with diverse opinions and views, and we should be able to share that and have a discussion about that." said Nardecchia.
That last line of the first paragraph above is quite incredible: "opinions that now come with consequences." While it's not quoted, it sounds like something that may have been said in the letter, as it's a line we all too frequently hear from those filing or supporting bogus SLAPP-style lawsuits over free speech, that "speech has consequences." Of course, they are misunderstanding what that means. Speech has social consequences in terms of how others in the community view you, and on your reputation and trustworthiness. What opinionated speech cannot have under the 1st Amendment of the constitution, is legal consequences that chill and intimidate free speech.
The article discussing all of this, from the local ABC affiliate in Arizona, concludes with a fairly understated comment reflecting what actual 1st Amendment lawyers told the news station:
At least two attorneys focused on constitutional law, told ABC15 the board is over stepping their authority and may want to take a closer look at the protection found under the first amendment.
May want to take a look? Uh, yeah. You can't sue people for stating opinions about you on social media. That's kind of a core aspect of the 1st Amendment.
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Filed Under: 1st amendment, free speech, hoa, social media, threats, val vista lakes
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Ah if only...
May want to take a look? Uh, yeah. You can't sue people for stating opinions about you on social media. That's kind of a core aspect of the 1st Amendment.
Sure you can, they're called SLAPP suits, something TD readers and writers should be more than familiar with, and unless the state has a strong anti-SLAPP law on the books they're likely to be quite effective even if none of them actually succeed in court or even go to court.
That said...
It also cites past incidents including posts that said that board members altered or manipulated votes in annual elections and that board members purposefully retaliated against members in the association.
Given they just gave a lot of weight to one of the accusations being true the others just got a lot more believable as well, so while they may succeed in using threats to silence people it would seem the damage has already been done thanks to their delightful own-goal.
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Fix the pool, mow the lawn, replace the street lights
Could it be that the HOA board using dues and fees paid by HOA members to sue HOA members is in conflict with the purpose of the dues paid? I guess we would have to read the actual by-laws of the particular HOA, but seriously, could there really be a clause in there where the board is authorized to use HOA money to protect board members from butthurt? Aren't the fees directed at particular projects, like maintenance and repair for common items? Wouldn't the use of such funds for other purposes be a violation of that covenant?
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Re: Ah if only...
They really should not want this to go to court. When looking to silence critics, exposing yourself to document discovery including communications between board members has a high likelyhood of backfire.
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HOAs ought to be illegal. If you buy property, it should be yours to do with as you wish as long as you conform to health and safety codes. HOAs are just a way for some people to control property they don't own in a way that, by design, can and is easily used to be discriminatory and impose restrictions on what people can do with something those people own and in some cases, charge lots of money for doing shoddy work on services they are supposed to provide. In addition, joining an HOA is not something a buyer can opt out of.
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A HOA isn't bound by the 1st Ammendment
So I hate most HOAs and never will live at a property with one if at all possible.
However HOAs are non-governmental entities and therefore are not bound by protections in the 1st Amendment. Just like a business can fire you for spouting Nazi propaganda they can fine you if it is written into the HOA contracts and agreement.
This quasi-government status is actually what I consider the worst part of them. They act like government, but don't have controls on them like government.
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Re: A HOA isn't bound by the 1st Ammendment
They aren't bound as a government, but neither are they your employer.
They can bring a suit as an individual with an actual defamation claim, but they cannot forbid speech nor fine anyone for speech.
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Re: A HOA isn't bound by the 1st Ammendment
They're not government entities, but they can still violate someone's First Amendment rights. Telling people "you can't say this" and threatening them with lawsuits or financial penalties as a way to back up that order is censorship.
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Re: A HOA isn't bound by the 1st Ammendment
"So I hate most HOAs and never will live at a property with one if at all possible. ................... However "
Hahahahahaha
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"They're not government entities, but they can still violate someone's First Amendment rights."
I'm don't believe that is correct.
That said, the first amendment does influence what the courts will enforce. The more a HOA acts as a quasi-governmental agency, the closer the courts will examine its actions. When it purports to be able to regulate the speech of its members, it is going far beyond a limited cooperative of property owners for the purpose of maintaining community assets.
While this situation is likely to never reach trial because the board apparently never passed the resolution and provided notice of the new rules, even if they had properly passed a rule it goes so far beyond the purpose of a HOA it's difficult to see a court accepting it as legitimate.
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So even homeowners have landlords...sad.
I think any HOA or landlord posting anything online is a risk to tenant privacy and should be banned on those grounds.
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HOAs can only enforce any kind of fine for a rule violation through government intervention. Any fine for speech the HOA doesn’t like is thus a government-backed attempt to silence speech. The HOA in this story can’t legally enforce those fines — can’t legally prevent people from speaking out about the HOA — without putting itself on the losing side of a lawsuit from those who were threatened by the HOA.
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Constitution
I don't think this has much to do with constitutional law. The HOA is a private organization and isn't subject to the restrictions of the 1st Amendment.
This seems more like a breach of contract law. The HOA is empowered to enforce the restrictive covenants in the deeds of the property owners. I'm fairly certain there is no covenant prohibiting residents from grousing about the HOA on Facebook. For the board to create such a rule out of thin air is likely well beyond the scope of its contractual power.
Even if there's some catch-all clause that says something like "...and the Board shall have the power to do anything else necessary to maintain the quality of the community", there's obviously a limit to what they can actually do. They can't order you to quit your job and work for them for free; they can't order the women not to wear pants or work outside the home; they can't prohibit you from watching movies they don't approve of, etc. And telling people what they can and can't say on the internet (or in the newspaper or anywhere else) would certainly fall under 'you've gone way beyond the reasonableness of your contractual authority'.
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Re: Re: A HOA isn't bound by the 1st Ammendment
If that was the case, then all those suits against Twitter for banning people and deleting their Tweets would have been successful.
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Re:
Not true at all. Courts can and do enforce contract provisions between private parties that would amount to a 1st Amendment (or 2nd Amendment, etc.) violation if done by the government. The mere enforcement of the private agreement by the government does not bootstrap that private agreement into government action.
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Re: Constitution
Somehow earlier comment (if and when it gets through spam filters) got submitted when I didn't want it to. I'll try again.
Where the constitution gets involved is the threat of suit. Via threat of suit, the HOA is effectively attempting to leverage government power (the courts, which are a branch of government) to regulate the speech of people. The First Amendment, as interpreted by the courts over decades of case law, prohibits this - as the government cannot quash speech in this instance, neither can a private actor (the HOA) utilize the power of government (the courts) to quash speech in this instance, per the restrictions of the First Amendment.
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Any contractual provision that claims to punish legally protected speech with fines or other, similar punishments — a provision that can only be upheld by a court of law, which is part of the government — is, at the absolute best, legally questionable. If your HOA told you that you couldn’t say negative things about the HOA or its leaders without paying money to do so (which is essentially what the threat from this HOA says), how quickly would you chill your speech to avoid being charged a “free speech fee”?
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Re: Re: Re: A HOA isn't bound by the 1st Ammendment
Except for the part where "We won't help you say this" =/= "You can't say this."
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Re: Re: A HOA isn't bound by the 1st Ammendment
Are you sure they are not government entities?
State laws create them and give them the power to tax and seize peoples properties as well as enact rules. I have trouble seeing the difference between an HOA and a city or county.
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…fucking what
Twitter can legally bar certain kinds of speech on, and ban users from, the Twitter platform without running afoul of the First Amendment. You’re not being told “you can’t say that anywhere” and threatened with fines or lawsuits if you get banned from Twitter. The HOA in this case, however, is doing exactly that — which is why people here are pointing out exactly how the HOA is trying to censor speech.
One more time for the people in the cheap seats: Moderation is a platform operator saying “we don’t do that here”. Discretion is you saying “I won’t do that there”. Censorship is someone saying “you can’t do that anywhere” before or after threats of either violence or government intervention.
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Re: Re: Constitution
Technically not true. Unlike a City, town, or other government, the HOA is a contract with quasi government power, in broad terms, the HOA is a collection you belong to that is enshrined in your property title and membership is based on ownership in said property.
As such, the HOA may have reasonable restrictions that go against constitutional rights. This is especially true for rights that are protections from the state doing things to you. The state cannot regulate your speech, however your HOA could have a non disparagement rule. Just as you can contract with your friend to have a non disparagement rule between the two of you and expect the court to enforce it.
As some have pointed out, given the quasi government status the courts "Could" find that the clause is in violation of whatever laws establish the legal authority of an HOA, or they could state that membership is mandatory based on residence and thus invokes greater protections including the constitution, but your not in clearly defined law in most cases.
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You hear all about all these squabbles, who in their right mind would then decide 'yeah, this house is worth all that'?
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Re: Re: Re: Constitution
As a governmental entity, no the HoA can't violate your constitutional rights. No level of government can.
The HoA as a private entity, you could agree to set aside some of those rights as a condition of membership.
But look at state colleges - they're places you voluntarily agree to attend yet they are bound, as quasi-governmental agencies - to not violate 1st amendment rights.
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Re:
I don't like HoA's and I don't think they should exist and that you're insane if you purchase a home that is part of one.
That said, they shouldn't be illegal. They serve a purpose for some people.
As for "just a way for some people to control property they don't own" welcome to property tax, sidewalk easements, zoning commissions, etc.
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Re:
What do you think a non-disclosure agreement is?
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Re: Fix the pool, mow the lawn, replace the street lights
Nope. The CC&Rs specifically, in most cases, spell out that dues may be used to sue and/or lay claims against properties for various reasons. Dues paid also cover the costs of postage, meeting locations, etc. It's not all used for shared property maintenance.
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Re:
You misread btr's reply. Hint: Look at the bit he quoted.
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Re: Re: Constitution
HOAs "leverage government power" to enforce things that would be violations of the Constitution if done by the government all the time.
The entire system of imposing their rules and restrictions on your private property would be a violation of the 5th Amendment (takings clause) if done by the government. But as a contract between private parties, it's enforceable in court.
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A legally questionable provision of a contract.
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Re: Re:
Those are made by real governments. While no panacea, in principle they need to uphold civil rights, respond to FOIAs, etc. And when they propose stupid shit, it will often end up in the news, whereas there are no beat reporters covering HOAs.
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Re:
If done right a HOA can be a big help. It's just if one is done right that you never hear about them because no one complains about them.
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Re:
And yet they're routinely upheld by courts when legally questioned.
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"that board members purposefully retaliated against members in the association"
Did they not read their own threatening letter??
We're gonna fine you & block your access to community things until you take down the mean words you said about us targeting people who said mean things about us.
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Val Vista Lakes
Is this where Ms. Streisand goes boating?
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upheld by courts?
Actually, no. The way that an HOA is enforceable as a real covenant. A real covenant must touch or concern the land. Speech about the HOA board members do not.
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Re: Re:
The equivalence btr seeks to create seems pretty clear to me.
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Re:
"If you buy property, it should be yours to do with as you wish"
I'm pretty sure that's why they exist to begin with, as some people doing as they wish really does cause damage to those around them. Yeah, some do take it too far, but you're kidding yourself if you think that just letting people do whatever always leads to good neighbourhoods.
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Re: Re: Re: A HOA isn't bound by the 1st Ammendment
Yes, I'm quite sure.
No, they don't--not any more than state laws create any other corporations. They're created by private agreement among land owners in a given area.
No, this power is given by that private agreement.
Then you really need to look more closely.
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Re: Re: Re: Re: Constitution
A HOA is not a governmental entity, full stop.
A state college is a governmental entity, thus the comparison is invalid.
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Hiring a lawyer to send that letter seems like a misappropriation of HOA funds to me.
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"What?
You think I've never been in a Cad-il-ac before?"
HOA's: Trying to keep brown people out (while sucking it's own members dry) since the 1960's!
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AZ HOAs
I live near Val Vista Lakes and it's a nice area but the HOAs here are ridiculous. I owned a house for 5 years under HOA rule where the 80 year old president lived across the street with lots of free time and harassed everyone endlessly. I'll never own a house in an HOA again.
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Re: Re:
" I don't like HoA's and I don't think they should exist and that you're insane if you purchase a home that is part of one.
.......... That said"
Hahahahahahahaha
"They serve a purpose for some people."
What purpose might that be? Provide a captive group of subjects to torment? Provide a willing source of income? Provide a false sense of security? Lets you walk around with a hog leg strapped on?
"welcome to property tax, sidewalk easements, zoning commissions, etc."
Oh sure, we already have these things, why not add a few more?
What kind of excuse driven silliness is this?
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Re: Re:
Not sure what done right means. If things were done right, there would be no need for HOAs. The definition of "right" seems to be directly connected to source income.
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Re: Re:
Psssst - don't tell him about (looks around)
mineral rights.
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Re: Re: Re: Re: A HOA isn't bound by the 1st Ammendment
Have there been any court cases where these issues were addressed?
HOAs are still subject to the laws, sometimes you have to sue them.
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Re:
Problem is, HOAs are the norm rather than the exception and I doubt that is due to demand from those looking to buy a residence. It is demand from developers because they make more money off it.
Seems any new building is either HOA territory or you build it yourself.
I imagine non HOA properties rising in value faster than those of HOA properties simply due to this fact.
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Had the home owner planted a sign on HOA "governed" property stating their displeasure with said HOA, I could understand the HOA position. But that is not what the community members did. Their protests were posted on property not within the "jurisdiction" of said HOA.
Some private platform moderating content is not the same as an HOA attempting to silence community members on property not within their control.
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.threatning access to community amenities and fines”
All I heard was “reasons to avoid your neighborhood” lol
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Re: Re:
Do HOAs require signing an NDA? Covering what exactly?
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Re:
I dunno man, they are insane and I don't get why anyone would sign that contract...but they did, and now they are dealing with the consequences. Saying that a buyer "can't opt out of it" is like saying the buyer of a smartphone can't opt out of iOS. Once you've bought the iPhone, that's true, but who is forcing you to buy the iPhone or buy the HOA home?
It's not like an HOA moves into the neighborhood and forces you to sign up when you're already living there. I think in many cases it's the HOA that legally owns the land, and THEY can do what they want with it. Either way, I find it hard to have a ton of sympathy for someone who agreed to those terms when they moved in. Maybe if people stopped agreeing to the HOA terms and agreeing to pay them dues there wouldn't be so many of them. People sign up because they WANT to be able to do this sort of thing to others, then they whine about how unfair it is when someone does it to them instead.
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Re: Re: Re:
The purpose, as I understand it, is to prevent neighbors from devaluing your property, as the neighborhood around the house impacts the value of the house itself. Additionally, much like you have in those gated communities, some people are concerned with how the whole neighborhood looks. They can also organize neighborhood watches, handle private disputes between neighbors in an organized fashion without involving lawyers or spending taxpayer money by getting courts, law enforcement, or public arbitrators involved, and some might also offer services like shoveling everyone’s driveway at no additional cost.
That’s not to say I approve of HOAs, like them, consider them particularly useful or necessary, or consider these purposes themselves to be useful. However, from what I understand, they do, indeed, serve at least some purpose for some people. And obviously, these sorts of censorious legal threats and bullying are very much not the intended purpose or expected result of a HOA among those who value them.
That said, I too think they’re dumb, shouldn’t exist, and only an idiot, insane person, or extremely desperate person would purchase a home that is part of one. They are far, far more trouble than they’re worth. My intention is not to defend HOAs, which are ridiculous.
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Re: Re: A HOA isn't bound by the 1st Ammendment
Why not? Assuming the contract is written properly* then it seems like it's basically an NDA, and you can certainly be sued for violating an NDA. In some states you could even go to prison.
*Of course, in this case I would imagine the contract WASN'T written properly in that context, otherwise there would be no reason to try to implement a new policy for it...
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Re: Re: Re:
Well, if the rules aren’t unreasonable, too strict, or overenforced and have a reasonably justifiable purpose behind them; the fees, punishments, and dues are reasonable and proportional; the rules are enforced compassionately, relatively consistently, and fairly; the board members aren’t corrupt, don’t use improper means to gain power, don’t silence critics, and don’t abuse their power; the process of getting on the board is fair; and the HOA offers some value to the properties (like shoveling snow at no added cost per use), I suppose that HOAs can work right and be a decent help. Of course, much the same could be said about businesses and governments.
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Re: Re: Re: A HOA isn't bound by the 1st Ammendment
I’m sorry, but when has Twitter ever threatened anyone with financial penalties or lawsuits, levied a financial penalty against someone, or filed a lawsuit against someone for anything that person(s), business(es), or organization(s) has said (excluding Twitter’s current or former employees, contractors, subcontractors, or business partners)?
There’s a massive difference between
and
The former involves using the force of law to enact penalties for speech, regardless of when or where it happens. The latter is using the powers the entity in question naturally has without involving any laws, lawyers (usually), courts, money (from the person speaking), etc. to enforce a decision to disallow a person from speaking on their platform or removing undesired content from their platform. Notice also that the former involves using government enforcement to restrict speech and restricts speech everywhere, not just on property/platform(s) the entity owns and/or controls, while the latter is just the entity doing something it is inherently capable of without assistance and only restricts speech on property/platform(s) that the entity itself owns and/or controls.
So to say there is any material similarity between what this HOA is doing and what Twitter does is simply wrong.
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Re: Re:
Actually, I see no evidence that Stephen misread any part of btr’s reply. He’s pointing out the major distinctions between what Twitter does and what this HOA is (allegedly) doing, and how that relates to censorship and the First Amendment. Most of it relates directly to both the quoted material and what btr says about it.
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Re: upheld by courts?
To be fair, in that specific comment, btr was referring to non-disclosure agreements, not HOAs, being upheld in courts repeatedly in spite of the First Amendment.
That said, in an earlier comment, btr did imply that he felt that actions like these by the HOA can be considered under contract law, which can and sometimes do contain some measures that could restrict free speech. Your comment does refute that by noting that the HOA is effectively exceeding the bounds of the covenant here since the covenant only concerns the land, so any attempts to levy fines, dole out punishments, or file lawsuits against someone’s speech about any HOA board members would not be enforceable under contract law and infringe on people’s First Amendment rights in attempting to invoke the power of the government to enforce such a thing.
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Re: Re: Re: Re:
Of course, in an ideal world things would much different.
Even if such a condition as you describe were to exist, how long would it remain so?
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Re: Re: Re: Constitution
Non-disparagement clauses in contracts are repeatedly found to be unenforceable and even illegal, primarily because of the 1st amendment, to my understanding.
This is the same thing. Private agreements as part of contracts still have limitations, and forcing people to take down valid speech is one of those limitations.
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Re: Re: Re: Re: Re:
Oh, I absolutely agree. I’m actually against HOAs. I just think that, hypothetically, they should be able to work “right” for some people. That they don’t shows that the system is broken.
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Re: Re: Re:
To my knowledge, they don’t, and I don’t think they could since they aren’t employers. Plus, HOAs only involve land, so I don’t think they could legally include NDAs in the same contract.
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Re: Re: Re: A HOA isn't bound by the 1st Ammendment
"you can certainly be sued for violating an NDA. In some states you could even go to prison."
I am interested in this go to prison NDA. Do you have any additional information on this topic? I thought it was all civil in nature rather than criminal, but I guess it could happen. For example, disclosing trade secrets? No, that would be civil court. Disclosing corruption? Hey, if you see something, say something - right?
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Re: Re: upheld by courts?
Not only that, but a court might also consider particular contractual language restricting first amendment rights to be unconscionable and therefor null and void.
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Re: Re: Re: Re:
NDAs aren't limited to employer/employee relationships. For example, I had to sign one to be an audience member at a taping of the TALKING DEAD television show.
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Re: Re:
Don't be so sure. An HOA tried to do exactly that to a group of people in Austin, TX. The folks had been living out in the country for decades, and little by little, the city of Austin kept growing, with housing developments moving closer and closer to them until finally, there was a planned community right across the creek in their back yards. And of course this was one of those cookie-cutter neighborhoods where every house was identical and the HOA there hated that there was this other group of homes right next to them, and which appeared to be part of their development due to the proximity. They wanted to enforce all their rules from everything to Christmas lights to vehicle restrictions (the HOA didn't allow anyone to have a pickup truck) to lawn maintenance on these families who had no deed restrictions and had been living there for 50 years before this group of anal-retentive control freaks every showed up. The HOA went to court and asked the government to impose deed restrictions on those properties and to require them to be part of the HOA. The HOA ultimately lost the case, but it was not as easy a win as it should have been for the old-timer families. The court seriously considered the HOA's case.
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Re: Re: Re: Re: A HOA isn't bound by the 1st Ammendment
Yeah, I might be mistaken on that actually, not sure. Wikipedia indicates that you can be imprisoned for up to ten years for misappropriation of trade secrets under the Economic Espionage Act of 1996...but looking at the actual text of the act I don't actually see that. Same goes for the Uniform Trade Secrets Act which has been adopted by several states...lots of websites saying you can be arrested for violating that, even pointing to that law as a reason you might get arrested for violating an NDA specifically, but I still don't see it in the law itself...
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Re: Re: Re: Re:
Your neighbor should be under no obligation to help you sell your house.
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Re: Re: Re:
What I find most amazing about your post is that you are arguing against any type of authority at all.
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Crazy HOA's
I used to do Title work on foreclosed properties. An HOA actually issued a lien and then foreclosed on a property for non-payment of a trash can violation (resident had not removed emptied bin from street in alloted amount of time).
I contacted the HOA and informed them that their trash can lien had recorded in 3rd position, and that their foreclosure although legal, made them the proud owner of the first two mortgage liens and that if I didn't have their $260,000 in certified funds within 24 hours that I would be seizing the property from them.
They withdrew their foreclosure...lol
They actually thought they OWNED that house for just their $500 lien...SMH
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Re: Re: Re: Re: Re:
I absolutely agree.
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Re: Re: Re: Re: Re:
I’m sorry. I must have been interrupted midsentence. I was going to also say that they don’t really have to worry about classified information leaking out or any real competition or marketing to be concerned with.
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Re: Re: Re:
I don't know what that purpose might be. And I don't have to know.
But people keep buying homes in them so they must know.
What I do know is that I don't know enough to make these decisions for other people.
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Re: Re: Re: Re: Re: Constitution
Yes. I know. Which is why I was responding to the distinctions and how being 'quasi-governmental' doesn't get you out of the 'government' category.
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Re: Re: Re: Re: A HOA isn't bound by the 1st Ammendment
That actually depends a lot on the locale of the HOA. In several states/counties, HOAs are required to either incorporate or register as local neighborhood governing agencies, with their bylaws specifically considered as local statute, and, as such, they literally are government agents and the restrictions and bounds of the 1st Amendment would apply. Certainly not universally the case, but it's not always just "private agreements' either.
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Let's see the middle ground
In some states, but probably not all of them, Legislatures have granted power to people to institute an HOA, or a Condo, or a Time Share, and other names for what is increasingly becoming known as Common Interest Ownership communities.
Where I live, in Washington state, what we used to see was that the body of law granted pretty loosely defined powers to these organizations. When contests arose, the courts pretty much held that such organizations were indeed a "4th level of government". (After State, County and City, if so jurisdictioned.) This lead to HOA's winning just about 90% of the time.
In 2018, State law was not just amended, it was completely re-written to say that all such organizations were now subject to many additional restrictions. But for the purposes of this article and discussion, the salient point is that "No Common Interest Ownership community shall write any Article of Incorporation, or By-law, or Covenant, Condition & Restriction (CCRs) that conflicts with either Federal, State or local law or regulation". To my knowledge, this has yet to be tested in court, time will tell if this can withstand judicial scrutiny.
sumgai
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Re: Re: Re: Re:
How so?
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Re: Let's see the middle ground
How that would affect this case seems a bit unclear to me.
On the one hand, you assert that they were generally held to be a level of government, and therefore would presumably be required to protect civil rights such as free speech.
On the other hand, that was before the law was rewritten. Now they must comply with federal/state/local laws...but do those changes also make the "4th level of government" explicit now? Because otherwise it seems plausible that courts would now rule the other way. They're expected to interpret the will of the legislature, and if the law was rewritten and the previous assumptions were not included in that law, then a case could be made that the legislators clearly did not intend for that to be part of the law, which could result in judges ruling the other way and giving HOAs the right to restrict speech of their residents -- if they aren't a government agency, then restrictions on speech don't violate those laws.
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Gilbert HOA retracts plan to fine residents over social media posts
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Re: Re:
They didn't.
The Arizona Republic:
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Re: Re: Re: Re:
How?
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Re: Re: Re: Re:
Evidence or GTFO
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Speech Has Consequences
The threats by the association, and any following litigation, probably does not fit within the SLAPP model. This is mainly because these associations are not actual governments. Your milage may vary depending on your state, of course.
In some states, however, there will be statutes governing these associations. In those statutes, there is usually a fee-shifting provision so that the loser of litigation involving the association gets to pay the other side's fees.
So, depending on the state, a property owner aggrieved by the threat letter and concerned with his rights could not only bring a declaratory judgment action, but have his fees.
I have seen more threat letters where the author did not consider this risk than where he did. And frankly, considering how easily many people are scared, the risk is probably small.
(full disclaimers apply)
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Re: Speech Has Consequences
Actually, a SLAPP suit is frequently not one filed by a government agency. It’s any lawsuit or other legal action filed/taken to suppress protected speech or to harass or get a settlement out of someone for their exercise of rights to free speech, a free press, freedom of assembly, petition the government, and/or freedom of association. The person or entity filing the lawsuit is immaterial. (Well, it may be material to determining whether a particular state’s anti-SLAPP law will apply, but not to determining whether or not something is a SLAPP suit.)
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Right. And not rarely, any anti-SLAPP provisions apply to speach to, of, or concerning government action. So speech concerning an HOA, which is a non-government organization, is not protected by such anti-SLAPP provisions.
In some states, anti-SLAPP laws cover more than speech of public concern, and others may provide broader definitions of public concern. Your milage may vary. A Federal anti-SLAPP statute may help, unless it pre-empts state law, in which case it will be either a bane or a mixed blessing. Disclaimer may be excessive in relation to actual content.
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Re:
Please use “reply to this” when posting a response (as long as the thread hasn’t become too deep). It makes it easier to follow a discussion.
For the record, whether or not the lawsuit falls under every anti-SLAPP law or the local anti-SLAPP law doesn’t change its character as a SLAPP; it’s a SLAPP regardless of whether or not it is discouraged by any legislation meant to discourage SLAPPs (IOW, what is or isn’t a SLAPP is not dependent upon the state or applicable laws so long as the speech is legally protected).
Furthermore, “public concern” generally covers major business dealings, legal threats, lawsuits, alleged criminal acts, possibly unethical behavior from journalists, scientists, teachers, coaches, professors, lawyers, etc., scientific issues, and a lot more. This isn’t just under anti-SLAPP laws but in defamation cases and similar cases in areas without strong anti-SLAPP laws, as speech on matters of public concern are given stronger protections from the 1st Amendment than speech on matters of private concern.
Finally, while I think you’re aware of this, in some states, HOAs act as quasi-government entities or something similar, so that would still make this speech “to, of, or concerning government action” in some jurisdictions. Therefore, even under your restrictive model of SLAPPs based on some states’ anti-SLAPP laws, this may still be covered.
But at any rate, my point is that, regardless of the jurisdiction or governing anti-SLAPP laws, this would still be a SLAPP. The difference those things make are only what countermeasures are available against which SLAPPs, their effectiveness, and how they may apply in federal courts, if at all. A SLAPP is still a SLAPP even if there are no protections against it.
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The fights involving Home Owners Associations (HOAs) are so legendary and stereotyped that they've even been a minor plot point in Seinfeld. The general stereotype is that HOAs involve insane political power struggles, significantly out of proportion to the actual issues at hand. It is often an example of Sayre's law, in that the stakes are so little, yet the disputes are much more vicious and out of control than elsewhere. I'm thankful I don't live in a place with an HOA, but for many years I did (as a renter, not an owner) and remember receiving a long (7 pages typed, I believe) letter from an owner complaining about HOA battles and claiming that he was afraid to go to the next HOA meeting for fear of being shot by another HOA member, and going on and on about threats of violence.
https://www.engazettenews.com/
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HOAs and all common interest developments are relatively recent forms of property ownership.
What we know for certain at this point is that they are failed form of private residential government.
They more closely resemble some third world kleptocratic tin pot governance than anything that should exist in the USA.
The frightening thing is how many brown shirt wannabes latch on to these things as legitimate places to finally achieve some level of power denied to them in their careers or lives.
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HOA nightmares
Bought a second floor condo apartment. Little did I know that I was entering the Prison of Hell. The condo apartment isn't soundproofed so I can hear every noise imaginable to the human ear. I have a driveway and garage and a outside water faucet. Recently received a letter of intent to sue me if I don't share the outside water faucet with the downstairs neighbor. If I don't turn it on they threaten to charge me $100 per day and legal fees.
Word of warning: YOU CANNOT WIN! TURNED ON THE FAUCET and wished the downstairs neighbor I hope you drown in the sea for your callous attitude towards us.
Before all of this the neighbor was giving me the middle finger and threatening me to destroy my vehicle with rocks and a bat. Made a complaint and they received high praises from the board, management, and the community for her efforts in hurting us; now she has "followers" and they are holding a block party in their honor. We weren't invited because we are blacklisted!
My wife informed me before we signed the contract to purchase that she never felt comfortable looking at these units. That there was a stormy swirl feeling that the place wasn't welcoming to her. I just said that it was her nerves and not to allow them to get the best of her and where is her sense of a positive attitude. Today I am hurting badly and so are my family from the stress of being part of a HOA community. The nightmares are piling up and we just cannot take the negative animosity towards us: we are hated for not conforming and allowing them to control us to no end in sight. For not inviting the downstairs neighbor for dinner as a way of saying "welcome to the block". We are furious and hurt!
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Re: Ah if only...
It depends. The covenants may provide, and the statutes almost certainly do provide, for fees. So if the association sues, and loses, it may well be on the hook for the owner's fees.
Worse for them, if they threaten and the owner preemptively brings a dec action, they may well still wind up having to pay. Think of it as a ``big mouth'' tax.
We hope their state statute has a provision that the individual owner is not on the hook for his pro-rata share of fees, which are instead to be apportioned amongst the other owners who presumably tolerate the association's activity.
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Re: Re:
HOAs are often required of developers by the local governments.
Many new developments require rezoning, and these are typically done as PUDs. The governments want to avoid certain costs that would otherwise be associated with the development, such as roads, parks, stormwater, and street lighting. Developers are generally loathe to pay for things themselves.
At the same time as no one wants to pay for infrastructure, developers also want to make the sales price appear lower. That means that they need to conceal the costs which the government, in approving the PUD, would otherwise require to be bundled in.
Voila! As a part of the PUD process, the government requires creation of mandatory HOAs, and the developer puts the burden of paying for and maintaining things onto the buyers through the HOA.
Sometimes, to make the HOA appear less onerous, the developer will structure things so that they appear to cover some of the costs of the HOA for a limited time. However, once the developer finishes getting his money, or becomes defunct, the owners through the HOA are generally stuck.
None of this is meant to suggest that HOAs are not generally an evil to be avoided. It is just that if you want to avoid HOAs, in some areas you would either have to buy an older existing home or buy raw land and build.
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