Gated Community, Gated Speech

Juliet Samuel | July 13, 2007

Does living in a gated community abridge your First Amendment rights? According to the Cambridge Park Homeowners Association in Denver, the answer is yes—especially when it comes to the American flag. The Association is seeking to fine one resident for hanging her flag upside-down:

The association board notified Beth Hammer in an April 24 letter that the flag display is against federal flag code and is in violation of the association's "patriotic and political expression policy."

The letter gave her a week to right the flag or face fines that appear to range from $25 to $500.

"Living in a community association offers many advantages to the homeowner, but at the same time, imposes some restrictions," said the letter signed by association manager Melissa Keithly.

Having consulted the federal flag code, Hammer raised up her flag upside-down to indicate the official call of “distress” as a protest against the Iraq war. But this gated community won’t stand for such “unpatriotic” displays. An embarrassing climb-down on the part of the community board seems likely, but not without the expense and inconvenience of Hammer hiring herself a lawyer.

Comments

|7.13.07 @ 9:47AM|#

"The letter gave her a week to right the flag or face fines that appear to range from $25 to $500."

What is the mechanism by which a homeowners' association levies and collects fines for misbehavior? Do they threaten to hold their breath until blue in the face?

Mark P Neyer|7.13.07 @ 9:54AM|#

Frequently a home buyer agrees to join the homeowners association when they buy the home - I get the impression you can't buy the house without being a part of the association. It's kind of like a software EULA.

|7.13.07 @ 9:57AM|#

Sorry, but the Cambridge Park Homeowners Association is an organization where membership is entirely voluntary, and the First Amendment simply doesn't apply.

Can anyone show me what part of "Congress shall make no law... abridging the freedom of speech" is being infringed here?

At most, this is an issue for small claims court, based solely on whether or not the association's "patriotic and political expression policy" qualifies as a legal contract and if Ms. Hammer's upside-down flag constitutes breach of contract.

Anon.|7.13.07 @ 9:57AM|#

She surrendered a portion of her speech rights by contract. The homeowners association is entitled to sue to enforce the contract.

I think it's a silly thing to put into the contract (or to agree to), but people are entitled to put all sorts of silly things into contracts. What makes this one so different?

|7.13.07 @ 9:59AM|#

Do they threaten to hold their breath until blue in the face?

They could stop mowing her lawn. As the grass grows ever higher, she'll eventually cave. Beware tall grass!

Edward|7.13.07 @ 10:00AM|#

Shouldn't a gated community be able to set its own rules without interference from the state? What's the difference between the gated community--a private, voluntary association--restricting membership to those who observe agreed-upon standards of patriotism and a privately owned lunch counter restricting its customers to white people? Why should the state intervene?

|7.13.07 @ 10:01AM|#

Yes, when you buy a house you know whether it's part of an HOA and you are given a copy of the rules, but I doubt those rules state that a flag must be flown rightside up.

Besides, if the woman's in distress, how else is she supposed to express it?

P Brooks, HOAs levy fines by placing liens on the house. If they hire somebody to right the flag, they can charge the homeowners for it. If they don't pay up, there'll be a lien against the house when they go to sell.

jimmydageek|7.13.07 @ 10:02AM|#

Why anyone would join a homeowners association is beyond me. It's like, you own your home and property, but you can't do what you want with it. Where's the logic in that?

|7.13.07 @ 10:02AM|#

I get the impression you can't buy the house without being a part of the association.

Pretty much.

This is the reason why I live in a detached house on a separate piece of property. I had a friend that got hit with a $600 bill to replace railing that was perfectly fine to begin with.

However, I don't see any political issue in this. If you choose to live in a development, you therefore choose to abide by their rules.

Kinda like how the states used to be set up, back when we lived in a representative republic.

It sucks ass that she is getting fined, but if she doesn't like it, she can move...

|7.13.07 @ 10:05AM|#

Assuming there is a clear violation of the contract, then I find myself siding with the Homeowner's Association. If the violation is not clear, I would hope there was some sort of arrangement for arbitration built into the contract.

Regardless, it is a voluntary organization. She chose to buy a house where such a contract was in place. Unfortunately, Homeowner's Associations cannot only be used to stop people from doing things you do not like, other people can use them to stop you from doing things they do not like.

anon.|7.13.07 @ 10:08AM|#

Is Edward the new Dan T. pseudonym?

For one thing, that comparison isn't going to draw a whole lot of outrage around here, because plenty of libertarians--while still believing that private discrimination is wrong--think that it's inappropriate for the law to redress private discrimination.

But, moreover, the situations are distinguishable. This woman's situation is not an unfortunate externality; she affirmatively agreed to limitations on her speech rights. Is it your position that all voluntary contracts that limit the participants speech rights are unenforceable?

jimmydageek|7.13.07 @ 10:09AM|#

Regardless, it is a voluntary organization. She chose to buy a house where such a contract was in place. Unfortunately, Homeowner's Associations cannot only be used to stop people from doing things you do not like, other people can use them to stop you from doing things they do not like.

My brother and I painted a really sweet looking mural of a beach scene within the pool enclosure of a co-worker's home (which was part of an association). The neighbor somehow managed to get a peek of it even though there was a privacy fence and greenery that should have blocked most of the view (nosy people all around). As we were on the verge of completing the work my coworker informed us that the association told him that he could not proceed and had to repaint the walls to their original color.

Point of this story? HOAs suck!

|7.13.07 @ 10:13AM|#

jimmydageek:

I agree they suck. That is why I will not buy a house where I would have to join one.

However, people who wish to belong to one should be free to do so.

jimmydageek|7.13.07 @ 10:13AM|#

No argument from me there, RR...

|7.13.07 @ 10:14AM|#

I don't understand why anyone would voluntarily join an HOA. Giving people an excuse to be busybodies and control freaks is a bad idea.

Tom G. Palmer|7.13.07 @ 10:15AM|#

Russ R has it precisely right. The Cambridge Park Homeowners Association is a private association and the owner agreed to the conditions governing it. There are plenty of reasons why people join condominium associations and homeowner associations, as they provide through voluntary association a variety of public goods (common examples include a community center or clubhouse, a swimming pool, tennis courts, a security service, gardens, and the like). In addition, the terms of the contract governing the association can't specify every detail; no contract can. Were I to paint my apartment door purple or draw pictures of dragons on it, I think it would annoy my neighbors and there are specified procedures in our governing documents specifying how they could stop me and, indeed, fine me, with the debt accruing like any other. I may not have over a certain number of cats or dogs, nor pets over a certain weight limit. I have to observe normal rules governing noise spillover (loud drumming at 4 am would not be very pleasant for my neighbors). None of those are infringements on my rights; rather, I *exercised* my rights by agreeing to join the condominium association.

Property rights refer to a bundle of rights, and different people will choose to arrange those rights differently. A good case from the Rocky Mountains is covenants governing the height of buildings on adjacent properties. An important element in the value of a piece of land is often the view; block the view with a building on the next lot and the value of that land goes down. Accordingly, people buy the rights to determine the height of the buildings on adjacent land. If a neighbor wants to build a house so tall that it blocks my view of the mountains, he or she has to get my permission and pay me for the right. That's a much better solution than having third parties (zoning boards, city councils, etc.) setting the rules. The same goes for what kind of music can be played, whether smoking is allowed, and on and on.

This case may be a bit annoying to some (I think it would be to me, but I'm not a member of such an association), but it's no different from Disneyland saying that you can't wear "F**ck Bush" or "F**ck Clinton" buttons when on their land.

ed|7.13.07 @ 10:22AM|#

It's the classic libertarian conundrum: do you have a right to give up your rights? Can a private association usurp the authority of the government? Can private communities become entities unto themselves, like Indian tribes?

h-dawg|7.13.07 @ 10:22AM|#

I remember moving into a condo community that had just been built. It was immaculate. The homes were new, landscaping gorgeous, people friendly and excited. The sponsor just finished building out the units and it was time to allow community members to take over the board. I went to the first election. Each candidate was to make a little speech. Generous people, I thought, willing to take on overseeing the running of a community in volunteer positions.

The first guy, a lawyer running for treasurer, got up and began with, "There are SERIOUS problems with this community, and I'm here to fix them." Everyone around me suddenly began looking concerned, and I thought, "Oh fuck." The guy running for president on that 'slate' was a cop. They won, and this clique, what I would come to call the condo Nazis, kept control of the board for the next 13 years until I sold my place.

Unfortunate lesson: Libertarianism is a long-shot even at the community level.

Edward|7.13.07 @ 10:26AM|#

Is it your position that all voluntary contracts that limit the participants speech rights are unenforceable?

Yes. Who gave them speech rights in the first place? And who enforces the contract? That's the key question.

Eric S.|7.13.07 @ 10:26AM|#

Is this the same HOA that threw a hissy fit when someone tried to hang a controversial wreath at Christmas? I know that occurred in Denver, though I can't remember what the wreath looked like.

ed|7.13.07 @ 10:30AM|#

Can they also prohibit goose-stepping on the sidewalks?
That would be my form of protest.

|7.13.07 @ 10:34AM|#

It's the classic libertarian conundrum: do you have a right to give up your rights? Can a private association usurp the authority of the government?

The 1st ammendment says that congress cannot pass a law to abridge your freedom of speech.

Joining an HOA is a private contract between an individual and an organization where the individual agrees to abide by the rules of the organization.

The 1st ammendment is not relevant to the topic of what the HOA can or cannot do.

anon.|7.13.07 @ 10:35AM|#

Edward,

"Who gave them speech rights in the first
place?"

The libertarian answer is that no one gives anyone speech rights. Speech rights are inherent in the human condition. Governments are more or less just to the extent they recognize these rights. Because they don't come from the government, we're free to bargain them away.

"And who enforces the contract?"

You can't possibly believe that state enforcement of the contract makes all contracts that limit speech rights unenforceable. ALL contracts involve limitations on rights. If they didn't, they wouldn't be contracts, because nothing would be bargained away. Yet nobody would say that the government infringes your rights by enforcing a contract that you agreed to.

The only context I know of where this reasoning has been accepted is Shelley v. Kraemer. 1) Lots of libertarians would think this case wrongly decided. 2) This case, because it focused on the externality problem of racial covenants, is distinguishable for the same reasons as your lunch counter example.

Edward|7.13.07 @ 10:42AM|#

Anon,

Why shouldn't I enforce my own contracts? If somebody voluntarily contracts with me to mend my fence--no speech rights are involved--and then defaults, why can't I take action against the defaulter without recourse to the state?

KipEsquire|7.13.07 @ 10:42AM|#

News flash: People voluntarily contract away their First Amendment rights all the time. Every heard of a confidentiality agreement?

I have no sympathy for people who gripe about HOAs. You chose to live there, you can choose to leave.

|7.13.07 @ 10:47AM|#

Nobody is saying the HA can't regulate how flags are flown. The question is, does the agreement Beth Hammer signed actually do so. The answer it seems is typical of many legal disputes.

The party with the highest paid lawyer is right.

|7.13.07 @ 10:48AM|#

HOA's are of a form of government, aren't they? Usually they are voluntary only in the sense that you aren't forced to buy a house where one exists.

But as I'm fond of pointing out, that kind of makes all government voluntary - for example the city of Chicago can't prevent you from serving foie gras in your restaurant unless it's located in Chicago. And owning something in Chicago is voluntary. So what's the difference, really?

When you really get down to it, the point of an HOA is to enforce a certain amount of conformity - members have found that it's worth it to them to give up certain rights in exchange for others around them to also give them up. Their popularity indicates that people often simply don't want to live in a
libertarian environment where being able to do whatever you want is the most important quality.

|7.13.07 @ 10:50AM|#

HOA's are of a form of government, aren't they?

No. Not even close. That makes the rest of your post bullshit.

lunchstealer|7.13.07 @ 10:52AM|#

Dan - the exception of course, being national governments.

You can choose to leave an HOA, city, county, or state, but currently not country. At least not without permission from the new country.

|7.13.07 @ 10:52AM|#

This is a classic example of how conservatives, aka rich people, trample all over property rights when it suits their purposes. I like "anon's" argument that a contract is a contract. Remember that Ronnie made the same argument when a surrogate mother wanted to keep "her" baby? Nuh-uh, honey, hand it over. Those rich folks have a contract. Libertarians, faugh!

Sal Paradise|7.13.07 @ 10:53AM|#

"libertarian" does not mean "being able to do whatever you want".

"anarchism" means "being able to do whatever you want".

It's been how many months now, and you still can't make this distinction?

|7.13.07 @ 10:53AM|#

No. Not even close. That makes the rest of your post bullshit.

How are they not?

HOAs set rules for a community and have the power to enforce them. They are chosen by the people they govern and collect taxes (just call them "dues" or "fees").

They are exactly a government, done on a very local level.

|7.13.07 @ 10:54AM|#

What is forgotten here is one of the basic princples of contract law- that is, a contract must not be contrary to public policy. If there are areas of an agreement that don't meet this test, then the government is under no obligation to enforce them.

|7.13.07 @ 10:55AM|#

"libertarian" does not mean "being able to do whatever you want".

"anarchism" means "being able to do whatever you want".

It's been how many months now, and you still can't make this distinction?

I understand the distinction...you just took my remark more literally than I intended it.

ed|7.13.07 @ 10:56AM|#

So what are the limitations? Can an association ban abortion if the majority agrees to it? Make smoking pot legal within the gates? Put slot machines in the clubhouse?

Sal Paradise|7.13.07 @ 10:57AM|#

"you just took my remark more literally than I intended it."

I agree. I think we'd all be better off if none of us took your posts literally.

|7.13.07 @ 10:58AM|#

Dan - the exception of course, being national governments.

You can choose to leave an HOA, city, county, or state, but currently not country. At least not without permission from the new country.

True, generally speaking. Which is why I think that the smaller the government jurisdiction, the more permissable it is for them to set stricter rules. It's easier to leave a city than it is a state, and so forth.

That's why I would be against a national smoking ban but generally have no problem with municipal bans.

jimmydageek|7.13.07 @ 10:59AM|#

As with other "freedoms", ed, they can take away, but not add...

|7.13.07 @ 10:59AM|#

How are they not?

The HOA cannot send it's officer's into my house to arrest me and then throw me in jail for non-compliance with the HOA rules.

The HOA is limited to issuing some financial penalties as allowed by the HOA rules and to seeking action under civil law which is enforced by the government.

If you cannot understand the basic difference between private contracts and public governance, there is no point in discussing any topic with you that might come up on H&R.

anon.|7.13.07 @ 10:59AM|#

Edward,

You've simply changed the question.
The availability of self-help as a remedy has nothing whatsoever to do with whether state action is justifiable. There's nothing inherently contradictory about allowing aggrieved contracting parties to proceed though EITHER state action OR self help.

Your theory of contract raises an entirely different set of problems. Under your theory, the state COULD NOT enforce the contract to mend the fence, because the defaulter has a property right in his money and the state, by extracting money damages, would be violating that property right. The question for you then is: do you believe that this is a defensible theory of contract?

Of course, I find it unlikely that you actually believe this theory. If you do, you're saying that all contracts are enforceable only to the extent that an aggrieved party can self-help. This is no different than saying that "contract law" qua law, doesn't exist.

|7.13.07 @ 10:59AM|#

I don't understand why anyone would voluntarily join an HOA. Giving people an excuse to be busybodies and control freaks is a bad idea.

In my condo building (granted it is a 35 story building, not a gated community), our equivalent of a HOA is a DREAM to deal with. I hear all kinds of horror stories about people having to deal with the city to do home improvements, or having busy bodies demanding they do something to their home via the city. In Toronto, and probably most big cities, your typical HOA is going to be far more Libertarian and reasonable than the government. Big cities are basicly less democratic HOA with the power of arrest.

It might be different in the suburbs or rural areas, but I am so happy that things like trash collection, authorizing home improvements, security, etc., are handled by a person I can speak to during buisness hours right in my building vs. someone in city hall.

|7.13.07 @ 11:00AM|#

So what are the limitations? Can an association ban abortion if the majority agrees to it? Make smoking pot legal within the gates? Put slot machines in the clubhouse?

I assume that HOA's fall into the legal heirarchy that other governments are part of - the HOA can't legalize things that are illegal at the city, state, or national level.

Edward|7.13.07 @ 11:00AM|#

Can an association ban abortion if the majority agrees to it?

Hasn't the Catholic church done that? It can enforce the ban by excomunication.

VM|7.13.07 @ 11:03AM|#

Kip - great blog, BTW.

(and excellent observations about Dr. Paul, too!)

DanT: it's like this.

like this babe, n all, wants to fly this flag. And like, the man, ya dig, ain't hip. Ya see, he's got, huhuhuh, this brushcut. In the movement ya can spot a pig a, oooh, long ways off.

An' since, like, she's okay with the other stuff the man does, like, that's how it goes.

Kinda like "no dogs allowed" in a building.

And then, like, the GODWULF MANUSCRIPT was taken. Terry Orchard was arrested for it. Spenser, who was hired by Terry's parents to find her (she had run off from school), gets caught up in a tale of blackmail, organized crime, and murder.

Spenser can speak that tough language too. With a wit as hard as his fists and a gastronomical skill second to none, you can rest assured that Spenser will figure it out.

jimmydageek|7.13.07 @ 11:06AM|#

That makes perfect sense, VM...thanks!

|7.13.07 @ 11:08AM|#

The HOA cannot send it's officer's into my house to arrest me and then throw me in jail for non-compliance with the HOA rules.

The HOA is limited to issuing some financial penalties as allowed by the HOA rules and to seeking action under civil law which is enforced by the government.

If you cannot understand the basic difference between private contracts and public governance, there is no point in discussing any topic with you that might come up on H&R.

But carrick, if HOAs are simply private contracts, then why can't I buy a house in a neighborhood with an HOA and simply decline to join it?

|7.13.07 @ 11:09AM|#

But carrick, if HOAs are simply private contracts, then why can't I buy a house in a neighborhood with an HOA and simply decline to join it?

I know you're smarter than that dan. So stop being a prick.

anon.|7.13.07 @ 11:12AM|#

If EULA's are private contracts, why can't I simply buy and use software, yet decline the EULA.

It's because's the EULA was part of the bargain. Without it, I might have been willing to pay more for the software. Just like I might be willing to pay more for a house that isn't encumbered by covenants.

jimmydageek|7.13.07 @ 11:13AM|#

But carrick, if HOAs are simply private contracts, then why can't I buy a house in a neighborhood with an HOA and simply decline to join it?

Because you're a moron. Simple enough?

ed|7.13.07 @ 11:13AM|#

So what it boils down to is people giving up their rights in order to keep their property values high. Seems like a fair trade. Can they keep out the Jews, too? Or make them wear yellow stars?

|7.13.07 @ 11:17AM|#

I know you're smarter than that dan. So stop being a prick.

Humor me.

robc|7.13.07 @ 11:19AM|#

Dan T,

if HOAs are simply private contracts, then why can't I buy a house in a neighborhood with an HOA and simply decline to join it?

carrick's answer was dead on, but Im going to answer it seriously anyway.

You can. Unless, there is a deed restriction that requires membership in the HOA. In which case, the previous owner can't sell it to you unless you agree to join. And, guess what, there is.

|7.13.07 @ 11:19AM|#

I don't understand why anyone would voluntarily join an HOA.

If you want to live in a suburb reasonably close to your work chances it's tough to avoid being part of one. I have a natural aversion, but I belong to one because the house I could afford in the neighborhood I liked was part of an HOA.

And I begrudgingly admit they are not without merit. You'll always have the lawn Nazis, but you also always have the hillbilly neighbors who's yard is 95% weeds. Or the guy that runs his carnival equipment business out of his garage and parks his ferris wheel on the street - no bullshit. You may not be able to build an arbor like you want, but at least Cletus cant have six cars on blocks in his driveway. So cost benefit comes into play.

Our builder skimped on trees and common areas. Our HOA dues helped pay to plant some. The dues cover the operation and insurance for the community pool. Basically I'm fine with the HOA on general quality of life/beautification issues. When they stray into politics, free speech issues or tell me to mow my lawn I fucking hate them.

One defense is to get in good with your immediate neighbors if you can. My HOA prohibits in-ground basketball goals. They are supposed to be the roll-away kind, which look trashier in my opinion. I got together with the guy next door and the one across the street and we agreed to all put up in-ground goals, figuring that more of us who did it this less likely we were to get fucked with. After four years, so far so good.

Also, just because it's on the books doesn't mean it gets enforced. Trash bins are supposed to be in the backyard, but everyone leaves them on their driveway because it's a lot easier.

|7.13.07 @ 11:19AM|#

Can an association ban abortion if the majority agrees to it?

No, because the contracts only covers things that directly effect the property. You can forbid things like loud music after certain hours... but not private behavior.

But carrick, if HOAs are simply private contracts, then why can't I buy a house in a neighborhood with an HOA and simply decline to join it?

Gated Communities aren't neighborhoods. They are more like an apartment or condo building, except far far more suburban and spread out. You can build in the neighborhood of a gated community and decline to join the HOA... but the gated community itself is owned by the HOA, and what you are buying is not a house or property but a share in that HOA.

It is more like a country club membership than property ownership.

|7.13.07 @ 11:20AM|#

If EULA's are private contracts, why can't I simply buy and use software, yet decline the EULA.

It's because's the EULA was part of the bargain. Without it, I might have been willing to pay more for the software. Just like I might be willing to pay more for a house that isn't encumbered by covenants.

How is it "part of the bargain" if two private individuals making the contract don't care about it? If Joe Smith owns a house in a neighborhood with an HOA and decides to sell it to me for a certain price, why would he care if I joined the HOA or not?

VM|7.13.07 @ 11:20AM|#

Dammit, Dan. You're better than this.

Your blog has some fun stuff. Stick to that level! (or you're another regular who's having a lot of fun with us. CRANE!!!! Is that you?)

Frank and Joe Hardy have their toughest case yet. Kindly old Mrs. McGruder's cat went missing. Since she is a friend of Aunt May, the boys are dispatched without delay.

After several scenes where Chet Morton admits that he eats to hide his ambivalence over his sexuality, they stumble on an old clock that was in a lighthouse with a map and a clue by the haunted window.

Using their boat the Sleuth they follow the Mean Mister Mustard to his secret lair where Jupiter Jones and his other two investigators already solved the riddle of the Moaning Cave. (it was the professor who believed the bandito was left handed).

But Jupiter was grinning like a Cheshire cat. He made it into the cave when it was moaning.

robc|7.13.07 @ 11:22AM|#

Dan T,

why would he care if I joined the HOA or not?

Can you not frickin read?

Deed restictions.

|7.13.07 @ 11:22AM|#

Flags and HOAs have made an appearance here before. Thirteen months ago Jacob Sullum posted about Congressional action forcing HOAs to allow the flying of the American flag...

If there's anything stupider than a rule telling people they can't display American flags, it's the conclusion that such nitpicky micro-regulations by private residential associations represent a national crisis requiring congressional intervention. Condo and home owners do, after all, agree to these restrictions when they buy their homes. And as Virginia Postrel pointed out in Reason a few years ago, some people actually pick a place to live because they want their neighbors to be constrained by rigid, detailed aesthetic rules. Is Bartlett next going to take up the cause of homeowners who want to paint their houses bright purple or put up metal swingsets?

It is dispiriting that not a single member of the House stopped to think about the (nonexistent) constitutional basis for this legislation or about the rights to freedom of association and freedom of contract that it so blithely violates. I can only hope Ron Paul was absent that day.

|7.13.07 @ 11:23AM|#

Humor me.

No, you have used up any good will that you may have been able to expect.

robc|7.13.07 @ 11:25AM|#

No, you have used up any good will that you may have been able to expect.


Yeah. I dont know why I tried. I knew better.

anon.|7.13.07 @ 11:25AM|#

"If Joe Smith owns a house in a neighborhood with an HOA and decides to sell it to me for a certain price, why would he care if I joined the HOA or not?"

Because by agreeing to the covenent when he intially bought the house, he agreed to only sell it to folks who 1) would agree to be bound by the covenant, and 2) would agree to only sell the property to folks who agreed to similar restrictions on the use and disposition of their property.

That's how covenants work. You promise to abide by certain rules and only sell to folks who make the same agreement.

D.A. Ridgely|7.13.07 @ 11:26AM|#

Unless duress or coercion of some sort undermines the otherwise voluntary nature of contract formation, all of the parties to a contract are mutually bound. This is almost always not the case in even the most local level government where unanimity is not required to permit government action.

VM|7.13.07 @ 11:26AM|#

*c'mere DanT. tickle tickle. peacock feather. c'mere. atta boy. tickle tickle. entire chicken.


*zzzzzzzpppppppppppp

We interrupt this post to note that it had gone from cute and innocent to rather kinky. We do not approve of such behaviors.

That is all.

Back to the soap opera, "Gated Village". And thank you to the residents of Lake Bukake for allowing the filming of the show there.

|7.13.07 @ 11:28AM|#

You guys may not like HOAs. But that's just because you haven't partied with the HOA of Fuck Mountain!

|7.13.07 @ 11:29AM|#

You can. Unless, there is a deed restriction that requires membership in the HOA. In which case, the previous owner can't sell it to you unless you agree to join. And, guess what, there is.

Okay, so if there is a deed restriction, then is it really a private contract? Who enforces the restriction?

If I own a house in Chicago and sell it to you, then aren't you forced to "join" the city of Chicago in the sense that you pay taxes and follow the rules?

Legally, there probably are some differences between the two scenarios. But in practice, an HOA is a form of government.

|7.13.07 @ 11:32AM|#

OBviously no 1st am. issue.

But where in the contract does the HOA have the right to collect fines for violations of federal law? Surely the HOA can't claim that it "stands in the shoes" of the govt.

If it could, then I guess they could hire their own police force to fine people for speeding, possessing drugs, etc.

As it is, in my town right now, there is a situation where the private rent-a-cops who patrol one HOA have been citing boys for underage drinking, even though there is no covenant or rule in the HOA bylaws that authorize the HOA to do this.

Moreover, the HOA is trying to collect fines from the boys' parents, as though it's cops have the authority to enforce state laws, on behalf of the HOA!

|7.13.07 @ 11:35AM|#

"If you cannot understand the basic difference between private contracts and public governance, there is no point in discussing any topic with you that might come up on H&R"

That's the whole problem -- HOAs really blur the lines between private contracts and public governance. They've got awy more power than most private contracts, and they have power over stuff that's traditionally been seen as the public domain. I'm not sure what the answer is, but I don't think its just, "HOAs can do whatever they want."

robc|7.13.07 @ 11:37AM|#

Okay, so if there is a deed restriction, then is it really a private contract? Who enforces the restriction?

Yes, it is is really a private contract, negotiated between buyer (original) and seller. I will give you a non-HOA example. There was a widow farm owner in MD who was selling her land to a developer. However, she didnt want dense neighborhoods around her, so she put a restiction into the deed when she sold the land that it cant be subdivided into lots smaller than 4 acres. So, my sister and her husband live on a 5+ acre lot that they cant subdivide by deed restriction. It was a private contract between the widow and the developer. Basically, the widow kept some of the property rights and sold the rest of the property. She kept control of subdividing. My sister could go back to her and buy that control back, I would guess.

Same for HOA membership. It is in the deed. Im sure an owner could buy their way out of the HOA. Technically, property should be cheaper with a deed restriction because you arent buying all the property rights.

|7.13.07 @ 11:37AM|#

Because by agreeing to the covenent when he intially bought the house, he agreed to only sell it to folks who 1) would agree to be bound by the covenant, and 2) would agree to only sell the property to folks who agreed to similar restrictions on the use and disposition of their property.

That's how covenants work. You promise to abide by certain rules and only sell to folks who make the same agreement.

But somewhere along the line, a person was faced with the decision to either agree to the convenant or not live in the neighborhood. Just like with a city government, where you decide to either agree with the laws or not live in the city.

I guess the main difference is that the social contract is not one where you literally sign a piece of paper like you might when you join the HOA. But that's about it.

|7.13.07 @ 11:38AM|#

My neighbor has an adorable little girl who is autistic. She will run from point a to point b over and over again for hours, and doesn't respond well when people try to tell her something. She prefers to just keeping running back and forth, while really going nowhere.

D.A. Ridgely|7.13.07 @ 11:40AM|#

I guess the main difference is that the social contract is not one where you literally sign a piece of paper like you might when you join the HOA. But that's about it.

No, the difference is that there is nowhere one can go where he is not automatically subject to someone else's preexisting "social contract."

anon.|7.13.07 @ 11:43AM|#

Really, the main difference is that the Constitution purports to bind the federal and state governments, and proscribes almost no private activity (slavery being the notable exception).

robc|7.13.07 @ 11:43AM|#

I guess the main difference is that the social contract is not one where you literally sign a piece of paper like you might when you join the HOA. But that's about it.

As Ive been telling people for 20+ years, I will abide by the social contract only after Ive signed it.

|7.13.07 @ 11:44AM|#

I just want to clairify something. In almost all cases joining the HoA is not voluntarily. It's the purchase of the house that is voluntarily. In other words, if a HoA was voluntarily, I could opt out when I bought the house. Having said that, I would never buy a house that required me to be part of an HoA.

|7.13.07 @ 11:45AM|#

As Ive been telling people for 20+ years, I will abide by the social contract only after Ive signed it.

You've "signed it" by choosing to live in the area where you live.

|7.13.07 @ 11:46AM|#

No, the difference is that there is nowhere one can go where he is not automatically subject to someone else's preexisting "social contract.

Im afraid I would have to agree with Dan T here. You are splitting hairs. Like he suggested you dont like the conditions of the "social contract" in Chicago, then you are free to move to Detroit. So in effect HOAs are a form a government. Furthermore I think many HOAs include clauses for the enactment of new regulations, usually prescribing a majority percentage for a regulation to come into effect. So if you happen to be part of the miniority that voted against, you get screwed by the majority. Yeah thats nothink like a government at all.

anon.|7.13.07 @ 11:48AM|#

The house and the HOA are a package deal. Just because you're forced to accept both or neither doesn't mean joining the HOA isn't voluntary. You're prevented from buying the house without the HOA, not because the choice is involuntary, but because no such thing is for sale.

D.A. Ridgely|7.13.07 @ 11:53AM|#

Im afraid I would have to agree with Dan T here. You are splitting hairs.

No, the distinction is real and important. Socrates argues after his death sentence that it would be wrong to flee Athens, having enjoyed its benefits all his life, in particular because he was free at any time to simply leave the city-state and be entirely outside any law or government.

Most of us might not want to live outside any law or government, but we clearly don't have that choice today (please spare me the right to suicide) even if we did. The HoA is ultimately contractual and voluntary. That simply isn't the case with the state (or, for that matter, local government of some sort). Saying you have the choice of living under the control of the variously bad governments on the planet is simply saying you have a choice (if, in fact, you do) of who gets to coerce or oppress you. That's hardly the same thing as choosing whether to buy into a community with a HoA.

|7.13.07 @ 11:54AM|#

Furthermore I think many HOAs include clauses for the enactment of new regulations, usually prescribing a majority percentage for a regulation to come into effect. So if you happen to be part of the miniority that voted against, you get screwed by the majority.

Can't speak for all HOA's, but mine says:

A super-majority can changes rules, but the changes don't take effect until the contract renews (once every 20 years).

A super-super-majority can change rules and the changes will take effect 5 years from the vote. This gives ample time for someone to sell-out if they don't like the new rules.

And again. If you can't tell the difference between an private contract where breaches of the contract are handled by the civil courts established by the state and the state itself, then you really shouldn't go out in public without adult supervision.

robc|7.13.07 @ 11:57AM|#

You've "signed it" by choosing to live in the area where you live.

Bullshit.

I sign contracts by signing them.

|7.13.07 @ 11:57AM|#

May I also point out that many cities now require or at least accept HOA's as a condition of granting building permits or plotting for new subdivisions. Also, most HOA's have rules that permit majority-approved amendments to the charter. Finally, lots of HOA's including the one I live in have really vague provisions banning "unattractive" or "unreasonable" things. Ours bans "unattractive" lawn displays, with "unattractive" conveniently undefined.

Scooby|7.13.07 @ 11:57AM|#

"Unfortunate lesson: Libertarianism is a long-shot even at the community level."

Libertarianism is a long-shot, especially at the community level. Folks in my neighborhood long to control all sorts of things they have no right to. For some reason, they don't like it when I tell them kindly to fuck off and suggest that they should have moved somewhere with a HOA.

"Technically, property should be cheaper with a deed restriction because you arent buying all the property rights."

Sometimes less is more. Often, the value added by the restrictions on your neighbors is greater than the value subtracted by your waiver of certain rights.

anon.|7.13.07 @ 11:59AM|#

It occurs to me that some of the "legal reasoning" I've seen in this thread would be great in fast-food litigation:

"I only agreed to buy the Big Macs, I didn't agree to buying all those calories, so my consumption of the calories wasn't voluntary. McDonald's forced those extra calories on me as an illegitimate package deal when all I wanted was cheap, tasty food."

robc|7.13.07 @ 12:03PM|#

Sometimes less is more. Often, the value added by the restrictions on your neighbors is greater than the value subtracted by your waiver of certain rights.

I know, I was going to point that out directly. But, in my mind, a property is worth less if I dont get all my property rights. I guess there is greater value to me in my neighbors not having all there rights.

|7.13.07 @ 12:04PM|#

You've "signed it" by choosing to live in the area where you live.

The social contract I signed said the government can't ban transfats, I can own all the guns I want. So why are you being so evil Dan, and trying to destroy the social contract?

robc|7.13.07 @ 12:04PM|#

scooby,

I realize I just repeated what you said in a less clear way. My brain isnt working this morning.

|7.13.07 @ 12:05PM|#

what's the big deal? if she doesn't like the rules, move... this is one of the reasons i chose not to buy in a subdivision...

|7.13.07 @ 12:06PM|#

Most of us might not want to live outside any law or government, but we clearly don't have that choice today (please spare me the right to suicide) even if we did. The HoA is ultimately contractual and voluntary. That simply isn't the case with the state (or, for that matter, local government of some sort). Saying you have the choice of living under the control of the variously bad governments on the planet is simply saying you have a choice (if, in fact, you do) of who gets to coerce or oppress you. That's hardly the same thing as choosing whether to buy into a community with a HoA.

No, it's exactly the same thing. You can choose to live in a neighborhood with an HOA, or one that doesn't have one. Just like you can choose a neighborhood that is under a city's jurisdiction or one that isn't.

D.A. Ridgely|7.13.07 @ 12:08PM|#

Just like you can choose a neighborhood that is under a city's jurisdiction or one that isn't.

So, refresh my memory. Where do you go if you don't want to live under any government jurisdiction?

|7.13.07 @ 12:08PM|#

Bullshit.

I sign contracts by signing them.

Really? So basically you reject the idea of civilization altogether? I mean, the people we throw in jail for murder probably did not sign anything where they agreed not to commit murder.

robc|7.13.07 @ 12:09PM|#

Dan T,

You do realize there are theories of government other than social contract theory, dont you?

ed|7.13.07 @ 12:10PM|#

You know who got his start as a HOA president?
Yep. Hitler.

|7.13.07 @ 12:11PM|#

So, refresh my memory. Where do you go if you don't want to live under any government jurisdiction?

I didn't say that such place exists (aside from perhaps an uncharted desert isle). I'm just saying that you can generally choose which governments you live under. So the fact that you can choose do live under an HOA does not make them not a government.

|7.13.07 @ 12:12PM|#

You do realize there are theories of government other than social contract theory, dont you?

Not on dan's side of the looking glass.

Yeah. I dont know why I tried. I knew better.

You forgot again.

|7.13.07 @ 12:13PM|#

And again. If you can't tell the difference between an private contract where breaches of the contract are handled by the civil courts established by the state and the state itself, then you really shouldn't go out in public without adult supervision.

No as you can see breaches of contract here are handled by liens, deed restrictions and tickets not just civil courts. By failing to admit the undeniable similarties between HOA and standard levels of government you are being disenginous.

A super-majority can changes rules, but the changes don't take effect until the contract renews (once every 20 years).

A super-super-majority can change rules and the changes will take effect 5 years from the vote. This gives ample time for someone to sell-out if they don't like the new rules.

And again. If you can't tell the difference between an private contract where breaches of the contract are handled by the civil courts established by the state and the state itself, then you really shouldn't go out in public without adult supervision.

Gee if its a super majority then we can ignore the fact you can now be forced into a new contract you never signed or be forced to move out? That really doesnt sound like Dan Ts common , "if you dont like it you are free to move" line with regard to municipal regulations?

|7.13.07 @ 12:15PM|#

Dan T,

You do realize there are theories of government other than social contract theory, dont you?

Sure. But social contract theory makes the most sense, especially in the context of democracy.

At least at some level you must agree that by living where ever you do, you have consented to being subject to the rules of that place in exchange for the benefits. Just like if you freely move to Alaska, you agree to put up with cold weather - even if you don't like it.

|7.13.07 @ 12:16PM|#

You know, I was taught that flying a flag upside was basically a way to signal that "something's not right, call 911!"

The fact that lefty scalatards have co-opted a legitimate distress signal for emergency use as some sort of political process is just beyond stupid.

|7.13.07 @ 12:17PM|#

By failing to admit the undeniable similarties between HOA and standard levels of government you are being disenginous.

By failing to see the difference between a private contract and public governance, you are being foolish.

There are many bad HOAs, just as there are many bad contracts of all kinds. But they are all voluntary. If you don't sign the contract, you are not beholden to it.

D.A. Ridgely|7.13.07 @ 12:19PM|#

So the fact that you can choose do [sic] live under an HOA does not make them not a government.

So, let's see. The fact that you can choose to sit on a table does not make it not a chair. The fact that you can choose to ride on a cow does not make it not a horse. The fact that you can swallow rabbit droppings does not make them not M&M's.

Have I got the logic down right?

|7.13.07 @ 12:19PM|#

So, refresh my memory. Where do you go if you don't want to live under any government jurisdiction?

If you dont want to live under a municipal government you can always move out to the countryside. Just like you can move out of the HOA and be subject to only the city regulations. Why do you add the "ANY" government regulation to this? The argument here is that HOA are very much like another level of government under municipal.

|7.13.07 @ 12:19PM|#

By the way, a good liberatarian will tell you that most of the functions of local government could be provided better and cheaper by an HOA.

The fact that there is an overlap in functionality does not make them equivalent.

Mike|7.13.07 @ 12:22PM|#

Dan T. | July 13, 2007, 11:08am | #
"But carrick, if HOAs are simply private contracts, then why can't I buy a house in a neighborhood with an HOA and simply decline to join it?"

Covenants and deed restrictions run with the land. You purchase the house, you're bound to the covenants.

Dan, your mantra about the "social contract" and individuals choosing where to live has no basis in law, or common sense. You never responded to me on another topic where I asked you to list those areas of life where you believe government has no authority to dictate, and your basis for choosing those things. I know that you cannot respond, because you're hypocrisy will be exposed. Your pure statist / majoritarian "philosophy" would place no limits on governmental power.

D.A. Ridgely|7.13.07 @ 12:23PM|#

The argument here is that HOA are very much like another level of government under municipal.

val, yes they are. I agree. I think everyone agrees that they are very much like another level of government. It is the ways in which they are not like government that are important here.

|7.13.07 @ 12:24PM|#

Gee if its a super majority then we can ignore the fact you can now be forced into a new contract you never signed or be forced to move out?

Those conditions were in the covenant when I signed the contract. So I freely choose to abide by those terms.

Scooby|7.13.07 @ 12:26PM|#

"The fact that lefty scalatards have co-opted a legitimate distress signal for emergency use as some sort of political process is just beyond stupid."

The right wing-nuts like the "patriot" crowd have been doing it (flying the flag upside-down) for years. They don't like the current administration any more than the last one. Are we sure this woman is a lefty?

|7.13.07 @ 12:31PM|#

How did we get there? Who did this to us?

Is it the fault of a few evil cabalists in Manhattan that a majority of Americans, whenever given the choice enshrined in their constitution, elect to spend their lives in grim mini-autocracies?

That sounds too easy, blaming the People's problems on the anti-People.

This is the last refuge for the liberal humanist horrified by how completely, and how eagerly, Americans abandoned liberal rights for the chance to be ruled with an iron fist. It must be some bad person's fault. It can't be in our nature, can it?

the eXile Guide To State Repression

|7.13.07 @ 12:34PM|#

Are HOAs truly private? When the government says you must join one when you get a home loan, I say not. This is an "industry" that has sought, and received, special non-market privileges.

|7.13.07 @ 12:37PM|#

By failing to see the difference between a private contract and public governance, you are being foolish.

There are many bad HOAs, just as there are many bad contracts of all kinds. But they are all voluntary. If you don't sign the contract, you are not beholden to it.


You are voluntarily 'signing a contract' when you are moving from one city to another. No one if forcing you to move to a city with regulations you dont like, its a voluntary move, and upon completion you are subject to muncipal regulations. The fact that you signed your name on that deed and volutarily moved there doesnt make the Chicago city hall, or whatever city you chose to move to, any less of a government. And the fact the contract has a 'democratic' clause in to effectively disolve the old contract and force you into a brand new contract, makes them that much more similar to a governemnt.

val, yes they are. I agree. I think everyone agrees that they are very much like another level of government. It is the ways in which they are not like government that are important here.

naturally the less centralized the power the better from a liberatarian point of view, just like power with states is better than the power with the feds, simply that way there are alot less people to be screwed over

VM|7.13.07 @ 12:42PM|#

"The fact that you can swallow rabbit droppings does not make them not M&M's."

koff koff. *spit out*

DAMMIT, DAR. What the hell did you sell me???

The green ones were supposed to make me horny.

Instead.... instead....

*passes out

|7.13.07 @ 12:52PM|#

You are voluntarily 'signing a contract' when you are moving from one city to another . .

If you believe that you are an idiot and not worth additional dialog.

Scooby|7.13.07 @ 12:58PM|#

Brandybuck,
The gov't only requires that you join an HOA when:
1) It's required by deed restriction, and
2) You're getting a gov't backed loan.

If you don't like it, don't take advantage of a government guaranteed loan (which shouldn't exist in the first place). If HOA membership is required by the deed, a private lender will require you to join it, as well. Don't like it? Don't buy a house with that sort of deed restriction. There is no requirement that the market supply a product just because you want it (i.e. a nice house in the desired location without deed restrictions/ HOAs).

|7.13.07 @ 1:06PM|#

You are voluntarily 'signing a contract' when you are moving from one city to another . .

If you believe that you are an idiot and not worth additional dialog.

Im sorry maybe its different where you live, but when you buy a house here you sign a name on land transfer papers that specify what municipality that particular parcel of land belongs to. You dont have that in your neck of the woods? Same idea as with dry counties, you want to buy a piece of property and sell alcohol, you check the deed and make damn sure that your piece of property is one the other side of that line before you sign anything.

|7.13.07 @ 1:11PM|#

Complying with the laws in whichever jurisdiction that I live in is not a "contract".

|7.13.07 @ 1:13PM|#

Are HOAs truly private? When the government says you must join one when you get a home loan, I say not. This is an "industry" that has sought, and received, special non-market privileges.

That is an argument AGAINST federally backed loans, not FOR homeowners associations.

|7.13.07 @ 1:14PM|#

Oops, scratch the word "FOR."

robc|7.13.07 @ 1:14PM|#

You forgot again.

Nah, this time was on purpose, I was counter-trolling. Im generally a lockian-social contract kind of guy, except for the whole contract aspect of it. :)

What I dont understand is why the social contract isnt written out. Is "society" afraid to put it in writing?

robc|7.13.07 @ 1:16PM|#

Complying with the laws in whichever jurisdiction that I live in is not a "contract".

Exactly. I comply with the laws to avoid going to jail. Its just pragmatism on my part.

|7.13.07 @ 1:19PM|#

Complying with the laws in whichever jurisdiction that I live in is not a "contract".

It is actually more accurate to say you live where you live. The government claims jurisdiction over you.

brian|7.13.07 @ 1:21PM|#

I think the point is that HOAs are just as voluntary as municipal governments. If you don't like being subject to the HOA, you can choose to live elsewhere. If you don't like being subject to the municipal government, you can likewise choose to live elsewhere.

Both restrict your rights, and you have the choice whether or not to live under them.

|7.13.07 @ 1:22PM|#

The law is a "mandate" from the government that residents must comply to or suffer punishment (civil or criminal). Many of those mandate cover the creation and enforcement of contracts.

A contract is an agreement to between parties to exchange goods, services, or whatever for some mutually agreed purpose.

To call complying with laws a "social contract" is to abuse the word contract.

|7.13.07 @ 1:28PM|#

I live in an HOA -- actually, a COA (condominium owners' association). I can tell you there are all sorts of restrictions on my behavior, most of them rational. (no noise after 10 p.m., no more than two cars, garage sales twice a year). I entered into this agreement voluntarily -- and in fact it preserves the peace of the place.
I would not join this HOA if they told me I couldn't drink, couldn't barbecue on my deck, etc. etc. I understand there are some bad HOA's out there, but most of them probably serve the common good with rationally set bylaws.
The fact that Dan T. and others posting here can't determine the difference between voluntary associations and the fist of government is truly pathetic.

|7.13.07 @ 1:35PM|#

The right wing-nuts like the "patriot" crowd have been doing it (flying the flag upside-down) for years. They don't like the current administration any more than the last one. Are we sure this woman is a lefty?

Well, fuck them, too. I'm unconcerned with the political stance of the person doing it, rather that they're doing it at all.

It's tantamount to dialing 911 just so you can tell the operator on the other end of the phone that they need to do something to stop XYZ political thing you disagree with.

Jim Lippard|7.13.07 @ 1:37PM|#

HOA's are no different from governments. The covenant and deed restrictions are set up by the developer, some of them are unchangeable for a long period of time, and the rules that are mutable are changed via a democratic process, usually run by busy-bodies who get themselves elected to the HOA for the same reasons people get elected to student government.

The only differences are that the initial purchase of the home in the HOA is voluntary, and that there is explicit consent by signing a contract. But once it's passed down to descendants, they're in a position similar to we are with respect to our federal and local governments--having had no say in the rules they've come to be governed by. The difference is that the cost of exit is lower than for a city, state, or country. But that's more a matter of degree than kind.

Even the original purchaser is in the same position as an immigrant is to his newly acquired government.

Suppose all land was private, and all was part of some HOA. The initial rules are all set by the developers, and they tend to include the same sets of rules, which don't look much like a set of rules any libertarian would find appealing. If the second generation was still bound by those same rules and couldn't change them, that would be a violation of rights, in my opinion.

|7.13.07 @ 1:45PM|#

"""Just because you're forced to accept both or neither doesn't mean joining the HOA isn't voluntary."""

Isn't being forced non-voluntary by definition?


""""It occurs to me that some of the "legal reasoning" I've seen in this thread would be great in fast-food litigation:

"I only agreed to buy the Big Macs, I didn't agree to buying all those calories, so my consumption of the calories wasn't voluntary. McDonald's forced those extra calories on me as an illegitimate package deal when all I wanted was cheap, tasty food."""""

No, because you chose McDonalds AND the Big Mac. The calories in the Big Mac are intrinsic to the Big Mac. You can't have a one without the other. The HoA agreement is not intrinsic to the house. It is something added onto the agreement to purchase. If you take the HoA agreement out of the house, the house still exists. The same cannot be said about the Big Mac.

Let's not forget, and for those who don't know. Social contract theory is not really a contract, nor a type of government. It's a type of ethical theory.

""""So, refresh my memory. Where do you go if you don't want to live under any government jurisdiction?""""

If it's local government, move to another city. If it's state government move to another state. If it's the federal government, I'll say that a little different, but you could move to another country. People migrate all the time.

"""You are voluntarily 'signing a contract' when you are moving from one city to another."""

You're not signing anything, you're agreeing to when you accept being a part of that society, be it an HoA, or city, state, or federal law.


"""Complying with the laws in whichever jurisdiction that I live in is not a "contract"""""

It's not really a contract. It's a theory in ethics, which says if you agree to be a part of "X" then you agree to the rules of "X".

|7.13.07 @ 1:45PM|#

HOA's are no different from governments.

Which one can have you put to death?

|7.13.07 @ 1:46PM|#

To prevent any further confusion we should start using it's full name. Social Contract Theory.

|7.13.07 @ 1:46PM|#

At least at some level you must agree that by living where ever you do, you have consented to being subject to the rules of that place in exchange for the benefits. Just like if you freely move to Alaska, you agree to put up with cold weather - even if you don't like it.

Dan T thinks the Holocaust was a good thing... after all, the jews signed a "social contract" giving the government the right to do whatever it wants... they should have moved to a different country if they didn't want to be exterminated.

And Jim Crow laws in the southern United States. Hey, just another part of the social contract! Black should have moved if they didn't like racist oppression! At least in Dan T's mind!

It sure is good to have some non-existant rhetorical tool to justify just about any horrible and abusive acts the government creates! Yay for the social contract!

Jim Lippard|7.13.07 @ 1:47PM|#

That's what I get for poor editing--strike the first sentence of my previous, or change "no different" to "not much different."

The bigger problems arise, to my mind, with contract terms that survive the deaths of those who agreed to them. The example of the woman who put deed restrictions on her land to prevent further subdivision as a condition of sale--is there any good reason those restrictions should survive her death?

|7.13.07 @ 1:48PM|#

Suppose all land was private, and all was part of some HOA. The initial rules are all set by the developers, and they tend to include the same sets of rules, which don't look much like a set of rules any libertarian would find appealing.

It is a serious error to presume homogeneity in that all land will be covered by HOAs and that all HOA sets of rules will be similar.

Other than that, what you describe is not unthinkable. It is certainly not a priori worse than the nation state of today -- which, incidentally, violates people's rights all the time.

|7.13.07 @ 1:48PM|#

For the record, I think HoAs should be abolished. I'm a firm believer that if you bought it, you should own it, and the rights of the owner should be greater than the rights of the association.

|7.13.07 @ 1:50PM|#

Suppose all land was private, and all was part of some HOA. The initial rules are all set by the developers, and they tend to include the same sets of rules, which don't look much like a set of rules any libertarian would find appealing. If the second generation was still bound by those same rules and couldn't change them, that would be a violation of rights, in my opinion.

Exactly. It's almost as though we could satisfy all libertarian qualms with any governmental entity by calling it an "association" instead. Maybe the "association" of Chicago could make you sign a contract before you move there so your adherance to the laws of Chicago are now "voluntary". By the way, they're not taxes, they're "dues".

Wow, I've just solved every libertarian problem! Time to shut down Reason.

|7.13.07 @ 1:50PM|#

Which one can have you put to death?

The Department of Traffic and Motorvehicles of the Great City of Missoula, Idaho shall now put this man to death for accumulating 10 unpaid parcking tickets.

anon.|7.13.07 @ 1:52PM|#

"""Just because you're forced to accept both or neither doesn't mean joining the HOA isn't voluntary."""

"Isn't being forced non-voluntary by definition?"

Obviously I was using "force" in lay-terms, as in, "I went to the store to buy apples, but they were out, so I was forced to go home empty-handed." If you want to play semantics, fine:

Just because you have a finite number of market options doesn't make your selection of one of those market options non-voluntary. This is true even if you would prefer an option that the market does not afford (like buying a particular encumbered piece of property without the encumberence).

Jim Lippard|7.13.07 @ 1:53PM|#

MikeP: At least in Maricopa County, Arizona, most developers use the exact same template for deeds and covenants. It wouldn't surprise me to see striking similarities across the whole state and beyond. And very nearly all new construction involves HOAs, unless you can purchase the odd custom lot and build your own.

I avoided an HOA by purchasing an old home (though I'm now surrounded by HOAs).

|7.13.07 @ 1:53PM|#

For the record, I think HoAs should be abolished. I'm a firm believer that if you bought it, you should own it, and the rights of the owner should be greater than the rights of the association.

You think it is desirable that a group of private individuals should be stripped of their rights to form whatever king of private association they see fit to form?

|7.13.07 @ 1:56PM|#

preview, dammit

You think it is desirable that a group of private individuals should be stripped of their rights to form whatever king kind of private association they see fit to form?

|7.13.07 @ 1:57PM|#

carrick, that was a Freudian typo characterizing your belief in the divine right of HOAs.

|7.13.07 @ 1:57PM|#

You think it is desirable that a group of private individuals should be stripped of their rights to form whatever king of private association they see fit to form?

It's the libertarian dilemma again.

Or as I'm trying to point out, what is the difference between an association and a government?

|7.13.07 @ 1:57PM|#

Im curious, for those that live in a HOA/COA do your contracts allow for eminent domain type takings? Or do you feel that such a clause would be permissable if it was brought in under the super-majority or whatever other tool the HOA uses to nullify existing contracts?

|7.13.07 @ 1:58PM|#

most developers use the exact same template for deeds and covenants.

It really sucks to be out of synch with the free market. Of course, if you listen to Dan, all you need to do is move out of Maricopa county.

robc|7.13.07 @ 1:58PM|#

Further proof that HOA's arent government:

A government having voting rules of one vote per property is a violation of how many Constitutional amendments?

At least 4 I think.

robc|7.13.07 @ 2:01PM|#

Jim,

The example of the woman who put deed restrictions on her land to prevent further subdivision as a condition of sale--is there any good reason those restrictions should survive her death?

Is there any reason that any property rights should survive her death? How dare her children inherit her property!

If anyone wants to subdivide they can negotiate with her or her estate or her children to buy that right back.

Jim Lippard|7.13.07 @ 2:02PM|#

"It really sucks to be out of synch with the free market."

Developers do what they can get away with, and most people don't care about the underlying details. Which is the same reason we have the governments we do. (Caused by the "free market" of interplay between local, regional, and national governments in the world as a whole?)

To what extent are deed restrictions and HOAs a matter of "free market" when they occur in a highly regulated landscape of government rules, fees, and registration requirements?

|7.13.07 @ 2:06PM|#

Dan T thinks the Holocaust was a good thing... after all, the jews signed a "social contract" giving the government the right to do whatever it wants... they should have moved to a different country if they didn't want to be exterminated.

And Jim Crow laws in the southern United States. Hey, just another part of the social contract! Black should have moved if they didn't like racist oppression! At least in Dan T's mind!

It sure is good to have some non-existant rhetorical tool to justify just about any horrible and abusive acts the government creates! Yay for the social contract!

Just like with private contracts, not all social contracts end up being fair to both participants.

When you get down to it, when we discuss how our government should work isn't it just a discussion about how to create a contract that provides optimal fairness to both sides?

In this context, libertarians are kind of like the agents for the individual, making demands of the collective that you know you'll never get in hopes of getting some of them.

|7.13.07 @ 2:14PM|#

making demands of the collective

There is no collective.

That's just a figment of you fevered brain.

|7.13.07 @ 2:22PM|#

Further proof that HOA's arent government:

A government having voting rules of one vote per property is a violation of how many Constitutional amendments?

At least 4 I think.

While I don't think this "proves" anything, it's a very interesting point.

Imagine this scenario - you've got a neighborhood with 100 homes and an HOA that dictates rules about how the houses should look. A wealthy individual (or company) comes in and purchases 51 of the houses, giving him a majority of votes. He then uses that majority to "vote in" a totally unreasonable set of rules, and threatens absurdly large fines for violators, which are enforced via liens on their property.

So now the HOA has become a dictatorship where the other 49 property owners are forced to either sell to the dictator at whatever price he wishes or watch as their homes become worthless due to liens being placed on them.

I'm sure there are legal restraints to prevent this from happening in real life, but as a model it does show how a "voluntary" association can become a dictatorship if one person is allowed too much power.

Just like any government.

|7.13.07 @ 2:23PM|#

There is no collective.

That's just a figment of you fevered brain.

In that case, there is no government either.

No teams, no corporations, no families, no clubs...

|7.13.07 @ 2:26PM|#

Is English your second language Dan, because you seem to struggle with the nuances of so many common English words.

|7.13.07 @ 2:29PM|#

Is English your second language Dan, because you seem to struggle with the nuances of so many common English words.

Or perhaps I'm not so concerned with semantics of words as to miss the meanings.

I mean, you're the one who can't grasp the concept of the existence of a collective group of people, not me.

|7.13.07 @ 2:43PM|#

Dan T:
I'll use small words.
Voluntary groups -- "no force" -- are just a bunch of individuals (single persons) acting (doing stuff) together for their mutual (me scratch, you scratch) benefit (yay).
There is no moral (good vs bad) collective (group) that is involuntary (force).
Get it now?
Next week, we'll try coloring inside the lines.

ed|7.13.07 @ 2:45PM|#

This thread is sort of like the Special Olympics of threads.

Scooby|7.13.07 @ 2:47PM|#

You mean participating in it helps "those people"?

|7.13.07 @ 2:51PM|#

I'm sure there are legal restraints to prevent this from happening in real life, but as a model it does show how a "voluntary" association can become a dictatorship if one person is allowed too much power.

Just like any government.

Extreme examples demand extreme responses...

Prudence, indeed, will dictate that HOAs long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such HOA, and to provide new Guards for their future security.

Or, as you note, you can simply sue the HOA under the foundational clauses of the covenant which certainly imply that the HOA is for the common good of the residents and that all rules must conform to those ends.

|7.13.07 @ 2:55PM|#

MikeP:
Brilliantly put.

Mike|7.13.07 @ 2:56PM|#

"Just like with private contracts, not all social contracts end up being fair to both participants."

Dan Troll to the Jews and blacks: "Sorry folks, looks like you entered into an unfair contract. If you don't like Auschwitz or slave plantations you should just move somewhere else. Oh well, that's life."

|7.13.07 @ 2:58PM|#

This thread is sort of like the Special Olympics of threads.

That's what happens when you have threadtards.

|7.13.07 @ 3:04PM|#

Dan Troll said:
When you get down to it, when we discuss how our government should work isn't it just a discussion about how to create a contract that provides optimal fairness to both sides?

What "sides" are those, Dan T.? The haves and have-nots? The blacks and the whites? Those with a predilection for cow fucking and those without? When you start thinking of government as accomodating "sides," you've already destroyed any foundation for defining the rights of individuals (by which I mean, "all").
Jesus Christ, can somebody get this man some brain salve?

Jim Lippard|7.13.07 @ 3:07PM|#

robc: That's a good point. I wasn't thinking of it as a property right retained by the original owner, but only as a restriction on the new owner--in part because the only record of that restriction is likely to be on the deed.

I think these examples point to genuine absurdities and injustices that can arise from a strictly entitlement theory of property rights. And that's without looking at the fact that many (most?) pieces of real property have histories which involve illegitimate transfers under an entitlement theory.

I think it's absurd that someone could be in a position that they'd have to purchase (for example) speech rights from the nth-generation descendants of someone who sold a piece of property to one's nth-generation ancestors with a deed restriction restricting speech--especially when the descendants putatively holding such rights will likely not even know that they have them.

Perhaps MikeP's solution is sufficient to address such cases.

VM|7.13.07 @ 3:18PM|#

Man, Dan T trolls the thread on its way to 200 posts! Good job, my man! kudos!

cantcha see he's having fun with us hier?

|7.13.07 @ 3:24PM|#

I agree with MikeP ;-)

|7.13.07 @ 3:26PM|#

Dan T:
I'll use small words.
Voluntary groups -- "no force" -- are just a bunch of individuals (single persons) acting (doing stuff) together for their mutual (me scratch, you scratch) benefit (yay).


So how does this not describe government as well? Who is forcing you to be a part of the group?

ed|7.13.07 @ 3:28PM|#

You mean participating in it helps "those people"?

No. I mean I can't help but watch.
It's both sad and funny.

|7.13.07 @ 3:28PM|#

What "sides" are those, Dan T.? The haves and have-nots? The blacks and the whites? Those with a predilection for cow fucking and those without? When you start thinking of government as accomodating "sides," you've already destroyed any foundation for defining the rights of individuals (by which I mean, "all").
Jesus Christ, can somebody get this man some brain salve?

The two sides in this context are individuals and the collective.

Monkey RobbL|7.13.07 @ 3:29PM|#

Jim,

Nice to run into you here!

I think the "HOAs don't have guns" argument is a pretty good one. All other levels of government that I can think of have enforcement arms that are empowered to throw you in jail and/or use deadly force if you don't comply with their rules. HOAs, at least, are subservient to some OTHER power structure that actually has the guns.

That said, I think in practice you are largely correct - the typical HOA has approximately the same power and machinations as a small town of similar size. And often a greater will to terrorize its inhabitants. I, too, have intentionally purchased an older home, in part so that I can avoid that tyrrany. If my neighbors want to boss me around they need to motivate some Phoenix beurocrat to get off his ass and make my life miserable, which is much less likely than the crap that regularly occurs in neighborhoods governed by HOAs.

Then again, I think this whole discussion illustrates an obstacle (not necessarily insurmountable, but something that must be addressed) in the AnCap assertion that the basic requirements of civilization can be provided by private contracts and judge-made law. At some point, probably very quickly, people are going to enter into contracts where they surrender some of their rights in perpetuity. At that point, they are encumbering their heirs with burdens they may not have chosen themselves, and may require extra-contractual arbitration that includes guns.

So, ah, anyway. No solutions here!

Mike Laursen|7.13.07 @ 3:30PM|#

Why anyone would join a homeowners association is beyond me. It's like, you own your home and property, but you can't do what you want with it. Where's the logic in that?

It's simply a compromise. Back when I had a condo, it was because I didn't have enough money yet to buy a detached home.

Of course, I soon took over the joint by becoming condo board President, and unleashed an orgy of civil rights violations and deficit spending!

|7.13.07 @ 3:31PM|#

Or, as you note, you can simply sue the HOA under the foundational clauses of the covenant which certainly imply that the HOA is for the common good of the residents and that all rules must conform to those ends.

Right, since I noted it why are you repeating it? The point of that post was simply to illustrate how a voluntary homeowners' association can become every bit as dictatorial and oppressive as a government.

|7.13.07 @ 3:34PM|#

I think the "HOAs don't have guns" argument is a pretty good one. All other levels of government that I can think of have enforcement arms that are empowered to throw you in jail and/or use deadly force if you don't comply with their rules. HOAs, at least, are subservient to some OTHER power structure that actually has the guns.

I guess you could say that the HOA outsources its guns, since the liens against your property (the means by which HOAs enforce their rules) are enforced by the local/state governments and courts.

|7.13.07 @ 3:35PM|#

So how does this not describe government as well? Who is forcing you to be a part of the group?

Nobody is forcing you to be a part of the government. But the government doesn't do things for the mutual benefit of its own members. It does things by force and with the threat of imprisonment or death to control your behavior.
I'm tired of this Government 101 shit with you, troll.

|7.13.07 @ 3:38PM|#

"""You think it is desirable that a group of private individuals should be stripped of their rights to form whatever king of private association they see fit to form?"""

Under which right are they acting? But to entertain the idea, I'll say no with a but, I would not strip them of that right, but they cannot strip me of any in the process. The rights of the association should not trump my state or federal rights.

brian|7.13.07 @ 3:41PM|#

Jamie Kelly

But the government doesn't do things for the mutual benefit of its own members. It does things by force and with the threat of imprisonment or death to control your behavior.


Of course, so do the HOAs, but instead of the HOA president having the use of force, he's got the police station down the street to use it for him. A lot of people in this thread have talked about how they hated being in the HOA. Is that "mutual benefit"?

|7.13.07 @ 3:46PM|#

The two sides in this context are individuals and the collective.

There you go, using that phrase again "the collective".

You will be assimilated, resistance is futile.

Mike Laursen|7.13.07 @ 3:47PM|#

Who is forcing you to be a part of the group?

It starts very early. My son was born a few days ago. My wife and the midwife who assisted in our home birth must go down to the county seat and register our child. The State of California requires that we comply because he was born within its territory. Nobody asked us (nor him, of course) if we want him to be a citizen of the United States.

|7.13.07 @ 3:47PM|#

A lot of people in this thread have talked about how they hated being in the HOA. Is that "mutual benefit"?

I get the feeling that most people like their HOAs when they keep the neighbors in line but don't like them when they keep them in line. (Hey...sounds like peoples' attitudes about the government as well.)

If nothing else I assume that people could get together and vote their HOAs out of existence, but you never hear of this happening.

Mike Laursen|7.13.07 @ 3:49PM|#

I guess you could say that the HOA outsources its guns, since the liens against your property (the means by which HOAs enforce their rules) are enforced by the local/state governments and courts.

Yes, that's exactly right.

brian|7.13.07 @ 3:50PM|#

Reasoning #1:

HOA is voluntary because you can move elsewhere to avoid it, without any negative consequences.

Municipal governments are voluntary because you can move elsewhere to avoid it, without any negative consequences.

Reasoning #2

Municipal governments are involuntary because you cannot simply live under its jurisdiction without abiding by its rules, under the threat of force.

HOAs are involuntary because because you cannot simply live under its jurisdiction without abiding by its rules, under the threat of force.

........

So which is it? Reasoning number 1 or 2? Taking one from the first and one from the second means the logic is inconsistent.

|7.13.07 @ 3:50PM|#

It starts very early. My son was born a few days ago. My wife and the midwife who assisted in our home birth must go down to the county seat and register our child. The State of California requires that we comply because he was born within its territory. Nobody asked us (nor him, of course) if we want him to be a citizen of the United States.

So the state of California forced your wife to give birth within its territory?

|7.13.07 @ 3:50PM|#

The rights of the association should not trump my state or federal rights.

The association has no rights.

You, as a consumer in a free market, may or may not choose to sign a contract with an organization that provides services for a fee and that requires you to conform to a set of rules.

If you don't see a positive business case (value received versus fees paid) or don't like wish to conform to the rules, then don't sign the fucking contract.

|7.13.07 @ 3:52PM|#

There you go, using that phrase again "the collective".

Well, call it "the people" or "society" or "the country" or whatever phrase you wish, then.

Mike Laursen|7.13.07 @ 3:53PM|#

If nothing else I assume that people could get together and vote their HOAs out of existence, but you never hear of this happening.

When I owned a condo, there were sections in the agreement that outlined how we would go about voting to sell the entire complex or to tear down all the structures and rebuild. The actual homeowner's assocation, though, would be the thing that persisted. I suspect you'd have to sell off all the assets, then go through the same process you would go through when dissolving a corporation.

brian|7.13.07 @ 3:53PM|#

carrick
If you don't see a positive business case (value received versus fees paid) or don't like wish to conform to the rules, then don't sign the fucking contract.move into the municipal government's jurisdiction

Changed. How is this any less valid?

|7.13.07 @ 3:53PM|#

I think it's absurd that someone could be in a position that they'd have to purchase (for example) speech rights from the nth-generation descendants of someone who sold a piece of property to one's nth-generation ancestors with a deed restriction restricting speech--especially when the descendants putatively holding such rights will likely not even know that they have them.

It is my understanding that deed covenants have expirations, typically in the 20 to 50 year range, to avoid exactly these issues. Is that no longer the case?

|7.13.07 @ 3:56PM|#

Well, call it "the people" or "society" or "the country" or whatever phrase you wish, then.

It would be easier to understand your intent if you made that choice and stuck with it.

"Collective" carries a lot of baggage from socialism and communism.

Mike Laursen|7.13.07 @ 3:58PM|#

So the state of California forced your wife to give birth within its territory?

Yes, you're exactly right. That's the level at which we had a choice in the matter. Well, we also have the choice of ignoring the territorial authority and dealing with the consequences of that decision.

|7.13.07 @ 3:58PM|#

brian, if you don't see a difference between private contracts and public governance, then I can't explain it to you.

|7.13.07 @ 3:58PM|#

Man, Dan T trolls the thread on its way to 200 posts! Good job, my man! kudos!

cantcha see he's having fun with us hier?

It's going on for so long because it shows nicely how many gray areas exist that the libertarian "government bad, private good" philosophy doesn't recognize or handle very well.

|7.13.07 @ 4:00PM|#

It's going on for so long because it shows nicely how many gray areas exist that the libertarian "government bad, private good" philosophy doesn't recognize or handle very well.

Only in your head.

|7.13.07 @ 4:01PM|#

Yes, you're exactly right. That's the level at which we had a choice in the matter. Well, we also have the choice of ignoring the territorial authority and dealing with the consequences of that decision.

So basically you decided that the benefits of living in California are worth submitting to the rules. Which sounds like a voluntary association to me.

Mike Laursen|7.13.07 @ 4:01PM|#

So which is it? Reasoning number 1 or 2? Taking one from the first and one from the second means the logic is inconsistent.

No, it's just a good illustration of a false dichotomy. In reality, a municipality or a homeowners association lies somewhere on the spectrum between absolutely voluntary and absolutely coercive.

Mike Laursen|7.13.07 @ 4:02PM|#

So basically you decided that the benefits of living in California are worth submitting to the rules. Which sounds like a voluntary association to me.

No, it was, again, somewhere on the fuzzy spectrum between absolutely voluntary and absolutely coercive.

Mike Laursen|7.13.07 @ 4:03PM|#

It's going on for so long because it shows nicely how many gray areas exist that the libertarian "government bad, private good" philosophy doesn't recognize or handle very well.

No, some libertarians are uncomfortable with gray areas. Some are.

|7.13.07 @ 4:05PM|#

No, it was, again, somewhere on the fuzzy spectrum between absolutely voluntary and absolutely coercive.

I'm still not clear on how the state of California is coercing you into living there.

brian|7.13.07 @ 4:06PM|#

carrick | July 13, 2007, 3:58pm | #

brian, if you don't see a difference between private contracts and public governance, then I can't explain it to you.

I do understand. Don't dodge the question. Please explain how one is voluntary and the other is not, while they are both equally avoidable. If I can avoid the HOA contract by moving, its voluntary. If I can avoid the government's rules by moving, that is likewise voluntary. Either that, or neither is voluntary, since I am subjected to the association's rules even though I don't want to participate in it.

ed|7.13.07 @ 4:07PM|#

In keeping with the Special Olympics analogy, I think Dan should get a medal just for trying.

robc|7.13.07 @ 4:09PM|#

brian,

One is voluntary - I signed a contract with them.

The other I didnt.

brian|7.13.07 @ 4:10PM|#

Mike Laursen
No, it was, again, somewhere on the fuzzy spectrum between absolutely voluntary and absolutely coercive.

I think you're absolutely right that there is a fuzzy area. A lot of people in this thread seem to be frightened by the idea that they can't lump the world into "coercive" and "non-coercive."

For example, if a single company owns all of the reserves of a single product (say, oil), and they restrict both the amount sold and the access to the reserves to stifle competition, is that coercive? Friedman thought so.

Mike|7.13.07 @ 4:11PM|#

Dan, you have no concept of contract law. The parties to a contract must bargain at arm's length---that is, the parties must have equal bargaining power. A Corleone-style offer-you-can't-refuse does not a valid contract make. When the Jews were loaded on to trains at gun-point, I doubt that was the end result of lengthy negotiations between themselves and the gestapo.

brian|7.13.07 @ 4:13PM|#

robc
brian,

One is voluntary - I signed a contract with them.

The other I didnt.

That is a much better argument than the one carrick is making, and it makes a lot of sense, but it doesn't refute my point.

What carrick is saying, though, is that HOAs are voluntary because you can choose to avoid it by moving elsewhere. What I'm saying is that you can also move out of jurisdiction of the government, so doesn't that make local government voluntary?

brian|7.13.07 @ 4:15PM|#

Mike

Dan, you have no concept of contract law. The parties to a contract must bargain at arm's length---that is, the parties must have equal bargaining power.

Tons of markets contain parties with unequal bargaining power. That's not reason to shut them down or anything, but it's tautological to assume equal bargaining power for its own sake.

robc|7.13.07 @ 4:15PM|#

brian,

here is a very real example, since it happened to me:

8.5 years ago I bought a condo. As such I joined a HOA. Also, the condo was located inside the city of Douglass Hills, KY. By your logic, I voluntarily chose that. Okay, fine, whatever. However, my condo was NOT is the city of Louisville.

A few years later, the city of Louisville expanded to take over the entire county. Now Im in a HOA and **TWO** freaking cities.

Government (even municiple) isnt voluntary. Louisville forced me to live within its boundaries against my will.

brian|7.13.07 @ 4:16PM|#

robc

Oh, and I'm not saying local government is voluntary. I'm just pointing out that logical consistency requires the same position on HOAs and local government.

|7.13.07 @ 4:16PM|#

I never said that HOAs were voluntary because you could move. Post the actual text if you want to make that claim

I said repeatedly that HOAs were voluntary because you could choose to sign or not sign a contract.

robc|7.13.07 @ 4:18PM|#

brian,

I just gave you an exmple in which they arent the same position. You could argue that my HOA and the city of Douglass Hills are the same. But my HOA and the city of Louisville are NOT the same.

robc|7.13.07 @ 4:18PM|#

brian,

No HOA could do to me what the city of Louisville did.

brian|7.13.07 @ 4:20PM|#

robc

Government (even municiple) isnt voluntary. Louisville forced me to live within its boundaries against my will.

That sucks, it's stupid, and I'm sorry for you. I'm not taking a side about whether or not HOAs and local government are voluntary, I'm just saying that logical consistency requires them both to be the same under the assumptions of carrick's argument.

As for my own opinion about whether or not HOAs/local governments are voluntary, I'm really not sure.

robc|7.13.07 @ 4:22PM|#

brian,

I'm just saying that logical consistency requires them both to be the same under the assumptions of carrick's argument.

Nope.

See my post of 4:18. No consistency required.

Mike Laursen|7.13.07 @ 4:22PM|#

I'm still not clear on how the state of California is coercing you into living there.

They're not; thus, the situation is not absolutely coercive. However, once I have decided to live in California, there's all kinds of laws I have to comply with that I don't agree with; which is why the situation in not absolutely voluntary.

|7.13.07 @ 4:23PM|#

I'm just saying that logical consistency requires them both to be the same under the assumptions of carrick's argument.

Prove it or shut up.

Read the entire fucking thread, I have posted repeatedly that buying into an HOA is not equivalent to living in a municple jurisdiction.

The fact that I choose to ignore your "edit" to my post does not imply that I agree or disagree with your edit.

brian|7.13.07 @ 4:23PM|#

carrick
I said repeatedly that HOAs were voluntary because you could choose to sign or not sign a contract.

My point still holds. The decision to sign or not sign and your decision to move to the HOA area go hand-in-hand.

By moving into the HOA area, you must sign, at the threat of force. By moving into the local government's jurisdiction you must obey the government, at the threat of force.

Mike|7.13.07 @ 4:25PM|#

"Tons of markets contain parties with unequal bargaining power. That's not reason to shut them down or anything, but it's tautological to assume equal bargaining power for its own sake."

No doubt. But to make the leap from HOA to all governments, as Dan Troll has done, is patently absurd. A government, or at least a legitimate one, exists merely to defend the individual rights of its citizens. A business, you mentioned the oil industry in an earlier post, exists only to produce profit for its owners. The two are not comparable.

brian|7.13.07 @ 4:28PM|#

Mike
No doubt. But to make the leap from HOA to all governments, as Dan Troll has done, is patently absurd. A government, or at least a legitimate one, exists merely to defend the individual rights of its citizens. A business, you mentioned the oil industry in an earlier post, exists only to produce profit for its owners. The two are not comparable.

Well I don't think Dan T was comparing HOAs to all governments--just local ones (maybe I'm wrong, feel free to correct me by pointing to some text I missed).

As for the oil company, I wasn't comparing the two on those grounds you mentioned. I was just pointing out an area where there is a fuzzy area between coercive and non-coercive.

|7.13.07 @ 4:28PM|#

brian, you are now entering the dan zone. Either you are an idiot or a prick.

Try this one. In a large metropolitan area, there will be hundreds, and potentially thousands, of HOAs that you, the consumer, get to choose from.

None of these HOAs has the authority to break into your home in the middle of the night and shoot your ass dead in a search for narcotics.

robc|7.13.07 @ 4:28PM|#

brian,

No HOA can FORCE me to join after I have purchased property. Governments can (and historically it is common).

brian|7.13.07 @ 4:34PM|#

carrick

Read the entire fucking thread, I have posted repeatedly that buying into an HOA is not equivalent to living in a municple jurisdiction.

First, please calm down. I'm trying to have a civil discussion here, preferably without profanity.

Anyway, I know you have posted saying that they are not equivalent. I'm just saying that they are strikingly similar. I can avoid local government in the same way that I can avoid HOAs (this isn't a cause of my reasoning, but rather a consequence of it).

I'm also not saying they have equal coercive power. Surely, since HOAs are smaller, they are definitely less compulsive than local governments, just as local governments are less compulsive than state and federal ones--simply because everyone has a choice of under which government they want to live, decreasingly so as the centralization of the government increases.

brian|7.13.07 @ 4:37PM|#

carrick | July 13, 2007, 4:28pm | #

brian, you are now entering the dan zone. Either you are an idiot or a prick.

Try this one. In a large metropolitan area, there will be hundreds, and potentially thousands, of HOAs that you, the consumer, get to choose from.

You're exactly right here. What we have is a market for HOAs, and I get to pick the one I choose. In this country, we likewise have thousands of local governments of which I, the consumer, can choose. So by your logic, with which I agree, I have a choice of my (local) government, just like I have a choice of my HOA. I think we're really not all that much in disagreement. Maybe it's a communication problem

brian|7.13.07 @ 4:38PM|#

Oh and yes, there are more HOAs to choose from than local governments, making local governments less voluntary, but the level of voluntary-ness all comes down to the number of choices available.

brian|7.13.07 @ 4:42PM|#

I have to go, but I will check these comments later. It was stimulating debating with you (except for the name-calling). Thank you.

-Brian

|7.13.07 @ 4:43PM|#

brian it has been a long day and you are repeating arguments that have been made ad nauseum through out the day.

As I have posted, HOAs can provide many of the services that a muncipality can provide -- probably better and cheaper. This means there is an overlap in functionaliy.

The contract for an HOA can provide some means for the HOA to levy penalties against someone that breaks the contract. But the HOA is fundamentally dependent on the government to enforce the contract.

Bad HOAs can be, and in many case actually are, far more coercive and abusive than government. HOAs can impose requirements that would be unconstitutional for a government to impose, because it is a contract between private parties.

What's left to discuss.

Mike Laursen|7.13.07 @ 5:00PM|#

What's left to discuss.

Oh, come on, we can't just end it like that.

I think one difference between a homeowners association and a municipality is that the bylaws of the homeowners association and the process by which they may change are laid out fairly explicitly so that one can evaluate them before joining.

The powers of a municipality can change in much more capricious ways, sometimes depending on decisions made at a much higher, much less accountable level of government: for example, whether or not municipalities have certain eminent domain powers was decided all the way up at the Supreme Court level rather than by a vote of the local homeowners assocation members.

|7.13.07 @ 5:06PM|#

"""The association has no rights.

You, as a consumer in a free market, may or may not choose to sign a contract with an organization that provides services for a fee and that requires you to conform to a set of rules.""""

There are two different subject here. 1. The HoAs. 2. The homes. You do not have a choice on #1, the choice is on #2. Therefore you do NOT have a choice with respects to joining the HoA or not, you DO have a choice to buy the home or not.

Sure the HoA has rights, you enable them when you buy the house on their turf. You probably have certain rights under the HoA too. Rights are not limited to constitutions.

If you've been paying attention, I've been addressing this issue under social contract theory. Although I don't believe HoA should exist. If you buy a house under one, that's on you, because for now, they do exist.

I'm surprised that any real Libratarian would be for HoAs, they are nannyism at it's best.

|7.13.07 @ 5:14PM|#

I'm surprised that any real Libratarian would be for HoAs, they are nannyism at it's best.

People should be free to live under nannies if they want to.

|7.13.07 @ 5:29PM|#

Then what's wrong with the States playing nanny?

You don't have to live in any state. I'm a prime example of that. I didn't like Arkansas, I didn't like the Clintons (still don't) So I moved to NY. If I get tired of NY, I'll move somewhere else. If I don't like the new surveilence systems coming up in NYC, I'll move to another city, or at least away from the surveilence.

Nannyism is nannyism.

|7.13.07 @ 5:45PM|#

Then what's wrong with the States playing nanny?

sigh

Mike Laursen|7.13.07 @ 5:55PM|#

Wow, TrickyVic is so Libertarian he has wrapped around into agreeing with Dan T.

Paul|7.13.07 @ 6:04PM|#

My limited experience with HOA's is that they're predominantly weak organizations. For every toe-to-toe confrontation you read in the news, there are 10,000 more where a homeowner "violated" the HOA rules, some noise was made (usually by a busy-body neighbor), and the unauthorized change or accoutremont remained despite the withering complaints.

I believe that HOA's do suck, and would never join one. But I understand where they come from. They're basically desperate attempts by residents of a (usually) new neighborhood, trying to protect or maintain property values. Anyone who's ever lived next door to the person with the four-foot, weed-infested lawn and chevy impala on blocks can understand the sentiment. But in general, I find that neighborhoods naturally flow a certain way, and there are no amount of bizarre and byzantine HOA regs that will keep it from changing in the long run.

|7.13.07 @ 6:05PM|#

Then what's wrong with the States playing nanny?

States are remarkably poor nannies.

Even accepting that my choice in states to live in somehow grants states powers I deem illegitimate -- which I don't... Even accepting that the fact that there is more than one state means I affirmatively assent to the jurisdiction of the state I live in -- which I don't...

If I want to live under a nanny, I should be able to contract with exactly the nanny I want and specify exactly the domains of my life it can nanny. If I want to hire Jenny Craig to nanny my eating, I should not have to obey Jenny Craig's minimum wage laws too.

Paul|7.13.07 @ 6:05PM|#

TrickyVic:

You don't have to live in any state. I'm a prime example of that. I didn't like Arkansas, I didn't like the Clintons (still don't) So I moved to NY.

Was this unintentionally funny, or do you think that maybe the Clintons followed you to NY to piss you off?

|7.13.07 @ 6:52PM|#

Shouldn't a gated community be able to set its own rules without interference from the state? What's the difference between the gated community--a private, voluntary association--restricting membership to those who observe agreed-upon standards of patriotism and a privately owned lunch counter restricting its customers to white people? Why should the state intervene?

Edward's summary of the situation is correct here. Just for that, I will not call him "Dorothy" today.

|7.13.07 @ 7:02PM|#

Dan T. --

Here is the difference between an HOA (with the contract you sign with it), and a government (with the "social contract" you supposedly have with it):

A) I own two houses, side by side. Dan T. would like to buy one from me and make it his own home.

"Okay," I say. "But as a condition of the sale, you must agree to donate 1/10 of your gross income to my church for the rest of your life."

"Okay!" Dan T. says.

B) Dan T. lives in his own house across town, which he acquired from someone else. I do not own it and I have never owned it.

I call him up. "Hello, Dan," I say. "I am a member of an organization that claims the right to make rules for everyone in this town. Pretty much everyone around here accepts that situation.

"We have taken a vote, and we have decided that you must donate 1/10 of your gross income to my church for the rest of your life. And if you don't like that, then you can just move out of town."

|7.13.07 @ 7:56PM|#

""""Wow, TrickyVic is so Libertarian he has wrapped around into agreeing with Dan T.""""

Agree with Dan on what?

I don't think I'm a Libertarian, I believe that individual liberty trumps business. In this case I believe the rights of the home owner should trump whatever rules the HOA wants to apply.


"""If I want to live under a nanny, I should be able to contract with exactly the nanny I want and specify exactly the domains of my life it can nanny."""

That would be the best case scenario if you have to live under a nanny. But it usually doesn't work that way. Usually the nanny has its terms and you have to agree to participate.

""""If I want to hire Jenny Craig to nanny my eating, I should not have to obey Jenny Craig's minimum wage laws too"""

Only if you agreed to it. But I'm not really sure what you mean, the last part throws me off. Minimum wage applying to who you hire for your business? I don't understand why JC would have a connection to determine how you set your wages, just because you're using her diet plan. There is no nexus.


"""Was this unintentionally funny, or do you think that maybe the Clintons followed you to NY to piss you off?"""

If it's funny, it's unintentional. That's the timeline. Imagine how I felt when Hillary ran for Senate. Jeeezzz, and now she's running for President. Oh my dismay.

|7.13.07 @ 8:07PM|#

If HOAs are a real problem, The state could pass a law that stregthens property rights.

|7.13.07 @ 8:11PM|#

TrickyVic,

You are arguing against a straw nanny.

First you say that I don't get to prescribe any limits to the nanny I choose.

Then, when I inform you I choose Jenny Craig as my nanny, you wonder why she would be able to set the minimum wage I could work for or pay.

I don't understand why JC would have a connection to determine how you set your wages, just because you're using her diet plan.

And I don't understand why the state would have a connection to determine who I can hire, what wage I can pay or earn, what drugs I can take, what doctor I can go to, etc., etc., etc., just because I am using their non-victimless-crime and defense against foreign invasion protection plan.

Scooby|7.13.07 @ 8:14PM|#

I don't think I'm a Libertarian, I believe that individual liberty trumps business.

Definitely not libertarian (big L or little l). Sounds more like populism- the little guy is always right, no matter what. If an individual agrees to abide by the rules of an HOA (and make no mistake, one cannot become subject to an HOA's rules without consent), why should that individual be let out of his responsibility to fulfill his side of the bargain?

|7.13.07 @ 8:14PM|#

Steve, part B would depend if you have standing under law to make that claim. If not, I'd tell you to take a hike and there would be nothing legal you could do about it.

|7.13.07 @ 8:18PM|#

"""Definitely not libertarian (big L or little l). Sounds more like populism- the little guy is always right, no matter what."""

That's out right false. Little guy, big guy, whatever. If you have the right to do X, then that right shouldn't be taken away.

""""If an individual agrees to abide by the rules of an HOA (and make no mistake, one cannot become subject to an HOA's rules without consent), why should that individual be let out of his responsibility to fulfill his side of the bargain?""""

I agree, and I've been bloging as such.

|7.13.07 @ 8:22PM|#

Scooby, I consider myself a Constitutionist.

That's why I would vote for Ron Paul.

|7.13.07 @ 8:53PM|#

"""First you say that I don't get to prescribe any limits to the nanny I choose.""""

Actually if you look again I didn't say that. I did say the ability to prescribe limits "would be the best case scenario if you have to live under a nanny."" But the reality is that it "usually doesn't work that way. Usually the nanny has its terms and you have to agree to participate."

That's the problem with social contract theory. It's often a one-sided deal


"""And I don't understand why the state would have a connection to determine who I can hire, what wage I can pay or earn, what drugs I can take, what doctor I can go to, etc., etc., etc., just because I am using their non-victimless-crime and defense against foreign invasion protection plan."""

Most of that I agree. As far as who you hire, you don't, your business does. A business is not an individual. You can hire anyone you want, but I don't believe a job should turn you down for doing something that is legal and on your own time. Government has a right to regulate business just as it does their citizenry. A job is not a government and should not deny someone a job based on legal off the clock behavior.

|7.13.07 @ 9:06PM|#

That's the problem with social contract theory. It's often a one-sided deal

What does social contract theory have to do with Jenny Craig?

|7.13.07 @ 9:14PM|#

I'll say that HOA's aren't goverments becuase they don't provide some of the things that a government would(police, civil and criminal courts, defense, etc.). However, you can learn a lot about what's wrong with local government from the watching one in action.

|7.13.07 @ 9:24PM|#

Let's go back to the root and try again...

I'm surprised that any real Libratarian would be for HoAs, they are nannyism at it's best.

Libertarians are unlikely to choose HOAs for themselves. As you say, they are full of nannyism.

Nonetheless, libertarians will argue for the right for others to choose HOAs. If people want nannies, they should be free to choose them.

Yes, this willingness to allow other people to organize their lives as they wish makes libertarians somewhat different from most political persuasions. Maybe that's what is confusing you?

|7.13.07 @ 9:52PM|#

"""As you say, they are full of nannyism."""

Full of? No. But, many I've spoken to seem to have more of a tolerance for nannyism when it comes to business. I was surprised by that, I thought Libratarian's would be against all form of nannyism. My bad.

"""Yes, this willingness to allow other people to organize their lives as they wish makes libertarians somewhat different from most political persuasions. Maybe that's what is confusing you?"""

Business and people are different entities. If the people are the ones who get to organize their life, then business may need to yield to that ability. If businesses have that right, then it compromises the peoples ability to organize themselves.

|7.14.07 @ 12:37AM|#

Here is the difference between an HOA (with the contract you sign with it), and a government (with the "social contract" you supposedly have with it):

A) I own two houses, side by side. Dan T. would like to buy one from me and make it his own home.

"Okay," I say. "But as a condition of the sale, you must agree to donate 1/10 of your gross income to my church for the rest of your life."

"Okay!" Dan T. says.

B) Dan T. lives in his own house across town, which he acquired from someone else. I do not own it and I have never owned it.

I call him up. "Hello, Dan," I say. "I am a member of an organization that claims the right to make rules for everyone in this town. Pretty much everyone around here accepts that situation.

"We have taken a vote, and we have decided that you must donate 1/10 of your gross income to my church for the rest of your life. And if you don't like that, then you can just move out of town."

You're ignoring the fact that HOA contracts include a clause to inact new regulation. Like carrick said his HOA is allowed to enacts new rules if they are passed by a supermajority. So in effect the HOA has the exact power you described in B. The HOA here seems to have gained the power to unilatteraly force a new contract (by adding a new clause) on the other party.

Mike Laursen|7.14.07 @ 12:02PM|#

The powers of a municipality can change in much more capricious ways, sometimes depending on decisions made at a much higher, much less accountable level of government

On second thought, I take this back. Everything in a homeowners association bylaws and CC&Rs can be overridden by distant government decisions, too. For example, old CC&Rs that contain clauses restricting the race can live in the neighborhood have effectively had those clauses stricken.

|7.14.07 @ 4:52PM|#

why, exactly, is this story posted here? i thought you libertarian types were in FAVOR of being able to do whateverdafuk you wanted on private property?

Allen|7.14.07 @ 9:24PM|#

Who cares about the Cambridge Park Homeowners Association and agreeing to be a part of it or not. Why is it that these association's are allowed to do this? An upside down flag is construed as being not ok? What if she flew a Tibet flag and her neighbor was a Chinese national and was offended? Vice versa? How well written is the association's "patriotic and political expression policy"? It would be one thing if this was written up as how things can look. That is, flags must be properly flown, the mailbox should be within 2 feet of the driveway and the same color as the house etc. But this is a policy that isn't about appearances but going into the much more subjective area of expression. Why is a homeowners association doing this?

|7.15.07 @ 9:56AM|#

I think you guys are abusing the term 'social contract theory'.

Social contract theory is a theory about why and when states have legitimate authority to regulate their citizens' lives. It says that this authority consists in the fact that everyone could agree to its exercise -- it's advantageous to people in a way that would show up in a suitably arranged hypothetical contract. It's not that people have actually agreed to what the government is doing. It's that they would agree to it in a hypothetical contract. This is what Hobbes does, this is what Rawls does.

This other idea, the idea that people have actually agreed to obey their government, or voluntarily chosen to be a part of it, is flat-out crazy. Hume shot this idea down long ago. Talk of tacit consent does not apply -- it's not at all like e.g. the custom of leaving a tip on a table for a waiter. Not even close. States use force to control the lives of people who do not consent. Deny this and you're from outer space.

Jim|7.15.07 @ 12:52PM|#

When I was younger, my family was a member of one of these ridiculous associations. My father was actually fined by them for parking his car on the street, apparently in violation of the agreement.
This HOA is well within its rights to fine this woman, regardless of whether she hires a lawyer to try to take them down a notch. She should have thought about the consequences before she moved there.

tristendean|7.15.07 @ 1:23PM|#

This contract denies the basic human right of free speech and is therefore null and void.

|7.15.07 @ 8:31PM|#

i thought you libertarian types were in FAVOR of being able to do whateverdafuk you wanted on private property?

Wrong. There is a very interesting issue here regarding contractually surrending a fundamental liberty. And another issue about whether a homeowners association is like a government. See discussion above.