Gated Community, Gated Speech

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

P Brooks | July 13, 2007, 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 | July 13, 2007, 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.

Russ R | July 13, 2007, 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. | July 13, 2007, 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?

MP | July 13, 2007, 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 | July 13, 2007, 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?

Bronwyn | July 13, 2007, 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 | July 13, 2007, 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?

Taktix® | July 13, 2007, 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...

Reformed Republican | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 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!

Reformed Republican | July 13, 2007, 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 | July 13, 2007, 10:13am | #

No argument from me there, RR...

Jim Bob | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 10:30am | #

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

uncle scrooge | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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.

Warren | July 13, 2007, 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.

Dan T. | July 13, 2007, 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.

carrick | July 13, 2007, 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 | July 13, 2007, 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.

Alan Vanneman | July 13, 2007, 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 | July 13, 2007, 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?

Dan T. | July 13, 2007, 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.

Bill Pope | July 13, 2007, 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.

Dan T. | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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.

Dan T. | July 13, 2007, 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 | July 13, 2007, 10:59am | #

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

carrick | July 13, 2007, 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. | July 13, 2007, 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.

Rex Rhino | July 13, 2007, 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.

Dan T. | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 11:06am | #

That makes perfect sense, VM...thanks!

Dan T. | July 13, 2007, 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?

carrick | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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?

Dan T. | July 13, 2007, 11:17am | #

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

Humor me.

robc | July 13, 2007, 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.

Matt J | July 13, 2007, 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.

Rex Rhino | July 13, 2007, 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.

Dan T. | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 11:22am | #

Dan T,

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

Can you not frickin read?

Deed restictions.

MikeP | July 13, 2007, 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.

carrick | July 13, 2007, 11:23am | #

Humor me.

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

robc | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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.

GOB Bluthe | July 13, 2007, 11:28am | #

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

Dan T. | July 13, 2007, 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.

independent worm | July 13, 2007, 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!

HOAs suck | July 13, 2007, 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 | July 13, 2007, 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.

Dan T. | July 13, 2007, 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.

jf | July 13, 2007, 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 | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 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.

TrickyVic | July 13, 2007, 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.

Dan T. | July 13, 2007, 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.

val | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 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.

carrick | July 13, 2007, 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 | July 13, 2007, 11:57am | #

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

Bullshit.

I sign contracts by signing them.

Karen | July 13, 2007, 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 | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 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.

Rex Rhino | July 13, 2007, 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 | July 13, 2007, 12:04pm | #

scooby,

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

K.T. | July 13, 2007, 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...

Dan T. | July 13, 2007, 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 | July 13, 2007, 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?

Dan T. | July 13, 2007, 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 | July 13, 2007, 12:09pm | #

Dan T,

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

ed | July 13, 2007, 12:10pm | #

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

Dan T. | July 13, 2007, 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.

carrick | July 13, 2007, 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.

val | July 13, 2007, 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?

Dan T. | July 13, 2007, 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.

mediageek | July 13, 2007, 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.

carrick | July 13, 2007, 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 | July 13, 2007, 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?

val | July 13, 2007, 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.

carrick | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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.

carrick | July 13, 2007, 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 | July 13, 2007, 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?

Pink Floyd-Dogs | July 13, 2007, 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

Brandybuck | July 13, 2007, 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.

val | July 13, 2007, 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 | July 13, 2007, 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

carrick | July 13, 2007, 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 | July 13, 2007, 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).

val | July 13, 2007, 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.

carrick | July 13, 2007, 1:11pm | #

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

Jamie Kelly | July 13, 2007, 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.

Jamie Kelly | July 13, 2007, 1:14pm | #

Oops, scratch the word "FOR."

robc | July 13, 2007, 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 | July 13, 2007, 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.

MikeP | July 13, 2007, 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 | July 13, 2007, 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.

carrick | July 13, 2007, 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.

Jamie Kelly | July 13, 2007, 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.

mediageek | July 13, 2007, 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 | July 13, 2007, 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.

TrickyVic | July 13, 2007, 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”.

Jamie Kelly | July 13, 2007, 1:45pm | #

HOA's are no different from governments.

Which one can have you put to death?

TrickyVic | July 13, 2007, 1:46pm | #

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

Rex Rhino | July 13, 2007, 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 | July 13, 2007, 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?

MikeP | July 13, 2007, 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.

TrickyVic | July 13, 2007, 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.

Dan T. | July 13, 2007, 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.

val | July 13, 2007, 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. | July 13, 2007, 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 | July 13, 2007, 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).

carrick | July 13, 2007, 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?

carrick | July 13, 2007, 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?

MikeP | July 13, 2007, 1:57pm | #

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

Dan T. | July 13, 2007, 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?

val | July 13, 2007, 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?

carrick | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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 | July 13, 2007, 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?

Dan T. | July 13, 2007, 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.

carrick | July 13, 2007, 2:14pm | #

making demands of the collective

There is no collective.

That's just a figment of you fevered brain.

Dan T. | July 13, 2007, 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.

Dan T. | July 13, 2007, 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...

carrick | July 13, 2007, 2:26pm | #

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

Dan T. | July 13, 2007, 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.

Jamie Kelly | July 13, 2007, 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 | July 13, 2007, 2:45pm | #

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

Scooby | July 13, 2007, 2:47pm | #

You mean participating in it helps "those people"?

MikeP | July 13, 2007, 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.

Jamie Kelly | July 13, 2007, 2:55pm | #

MikeP:
Brilliantly put.

Mike | July 13, 2007, 2:56pm | #

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