The Homeowners Association Loophole

The FBI didn't need a warrant to search the home of the Almasri family in Florida, who departed "suspiciously" for Saudi Arabia shortly after 9/11. All they needed was to tag along with representatives of the homeowners association, who had the right to enter houses falling under the association agreement for "maintenance, alteration, or repair." Besides that, the Almasris were late paying their association dues.

This Miami Herald story has the details, including this contextual tidbit: Such a tool, while apparently never used in the context of a terrorist investigation, is frequently used by police who have suspicions but not enough evidence for a search warrant, said Milton Hirsch, a Miami defense lawyer and author of a legal text on criminal procedure.

''It happens every day,'' Hirsch said. ``There is a substantial body of law that allows law enforcement to accompany others who have authority to enter private property -- motel operators, college roommates.''

That's a loophole big enough for an entire constitutional amendment to get lost in.

Comments

[fyodor]

How about meter readers??? Plumbers???

[Charles]

The interesting thing is that they don't need actual authority to enter, just apparant authority. So, if someone answers the door to your home and they can invite in the police.

[joe]

But homeowners associations are free market entities that people voluntarily join when they purchase a home. No one holds a gun to their heads. A constitutional amendment limiting them would be an intrusion by the government on individuals' freely chosen lifestyle and financial arrangements.

Nothing created by the free market could contribute to the erosion of personal freedom! Right guys?

Guys?

[Paul]

You've got it half right, Joe. It's not the homeowners' association that is contributing to the erosion of personal freedom. It's the abuse by the government of both the individual AND the homeowners' association that is the problem.

One would hope in these cases that the HOA officials who allow the police into a private residence would themselves demand to see a warrant or other court-approved documentation from the officers.

Maybe it's time for a campaign to educate HOA officers, motel managers, and meter readers about the risks (both to themselves, through lawsuits, and to the constitution) of allowing these "tag along" searches.

(By the way, as a counter-example, just try to get a chambermaid in a hotel to let you into a room without proper I.D., or at least the right key.)

[Ranald H.]

It's the "apparent authority" clause which concerns me. Vicarious authority is more than interesting, it's pure sleaze. Does any slob answering your door have the constitutional "authority" to permit an investigation? Why do courts permit it?

(I can't see the relevance of whether the "authority" is derived from statist or free market sources. Abuse springs eternal, yes?)

[Harry Tuttle]

Well, Joe, if the by-laws of the association specifically state that the association may enter, and that law enforcement may accompany them, then I wouldn't have a problem with it. But I think the point of the article wasn't the well known fact that homeowner associations limit freedom (voluntarily), but that law enforcement is so eager to bypass restrictions on their power. Would it be ok to attach a camera on the cable guy so that the police can review it later to determine whether or not I'm doing (or planning to do) anything illegal?

[tom b]

Not exactly a secret. The move to get the landlord, apartment manager, flophouse deskclerk to give up the key of the place they want to search is a cut and paste standard scene of cop stories, books, movies and TV shows. So I think most people are vaguely aware of it.

And yeah to the earlier comment ANYONE answering your door does pretty much have the right to allow a search.

I've always wondered if cops ever used THAT loophole to get entry via a housecleaner or the kids left unattended or, I dunno, the cat.

[joe]

HT,

"If the bylaws of the blah blah blah...I wouldn't have a problem with it." That is exactly the point my smart-ass message; personal liberty, and what you people call "economic liberty," are not the same thing at all, and often run smack into each other. "Free market" economics produces imbalances of power, similar to what exists between the government and a citizen. When the government uses its power to infringe on someone's personal liberty, libertarians cry them a river. But when a private person or corporation infringes on someone's personal liberty, you all sort of look away, like a French leftist whose train passes a gulag on one of those Potemkin tours.

True lovers of liberty oppose oppression in all its forms, not make excuses because an oppressor owns property. You people confuse freedom with money. Property shouldn't have rights; people should.

[joe]

Paul,

"One would hope..." Would one really? Oh, ok then.

The point of this story (to me anyway) is that the homeowners' association didn't give a damn if police had a warrant or not. There were freaky Arab people living there, and the Homeowners' Board were probably thrilled to let the police in. Ask to see a warrant? They probably asked if they could turn on the siren!

And, most importantly, they were well within their contractual property rights to do so. This isn't a loophole; it's an indictment of the very concept of a homeowners' association (basically, a privatized local government). This is what they exist for; to do some of the things that a government does, without all the messy democratic/societal/constitutional hurdles that keep the trains from running on time, and allow nonconformists to have ugly drapes and religious statues on their lawn.

But more importantly, it's an indictment of the market fundamentalist philosophy that declares the government, no matter how democratic, to be the only oppressor, and everything that a private person or entity chooses to do to be, by definition, an expansion of freedom.

Mr. Doherty is right to suggest an amendment - one to protect our rights from the depredations not of the government, but of the creeping authoritarianism of the private sector.

[Omnibus Bill]

Okay, my little canaries. The methane in this mineshaft isn't quite that thick.

"Apparent authority" means that the person answering the door would have to appear, to a reasonable person, to have the authority to let police in, engage in the search, etc.

For example, your six year old kid doesn't have it. Nobody would expect a six year old to have the run of the house, and even if she did, she couldn't consent to a search, because the law generally presumes people that age don't have the authority to give knowing consent to most things.

Your 15 year old may be different. A reasonable person might think she looks old enough to have authority to let the cops in. But the scope of her consent would still be limited to the things she reasonably might have control over - the common areas of the house, her own room, etc. The grant of authority isn't a blanket thing for the whole house. She probably doesn't have the authority to consent to a search of her mother's locked jewelry safe, or her 18 year old twin brother's room, which he keeps locked when he's not home. Would a child have the authority to authorize police to search the house? Well, it's not reasonable to expect that. So no searches of mommy's room.

The real problem here is not the scope of consent searches anyhow. The real problems are (1) What to do about highly suspicious behavior in the absence of good grounds for a warrant (Arabs who paid a large monthly rent payment in cash vanishing on 9/12); and (2) How to deal with bastard landlords and neighborhood associations who have an easement to enter your property.

Neither problem rises to the level of police abuse of civil liberties - at least in the real world.

[Brian Doherty]

Mr. Doherty was not suggesting a constitutional amendment. He was using a rhetorical trope he thought was at least a little cute, but apparently easy to misread: noting that the 4th amendment--an already existing constitutional amendment--seems as if it could get lost in this loophole, if cops can piggyback on other people's contractual rights to enter a property.

[fyodor]

Joe, you are not being oppressed by a person or organization which enforces the terms of an agreement that you freely and knowingly entered into.

True, Paul makes a weak argument by advocating "education" when the important issue is incentive. Organizations can educate themselves just fine when the incentive is there to do so, but without the incentive, all the education in the world means diddly.

But Paul makes up for this by offering the counter example of motel maids. The question to my mind is why doesn't the Homeowners Association feel like they face the same consequences as a hotel maid for violating someone's privacy? Maybe it was the particulars of the situation, or maybe Homeowners Associations are not held accountable for such actions the way a hotel would be. In that case, the question becomes why is that?

Let's consider two truisms that cut through the constitutional and legal bs. One is that where there's a government that wants to snoop, they'll always be looking for a way to do it, and it's up to we the peeps to try to keep one step ahead of them.

Two is that you can get away with whatever you can get away with. If no one takes an organization to court, that organization gets away with whatever. Or if they do go to court and the judge rules in their favor, again they get away with whatever whether or not you or I think the judge's logic is stupid.

These two truisms are probably at play in this situation.

Libertarianism, Joe, is one attempt to create a logical framework for dealing with issues such as this in a consistent and fair manner. It can't create a perfect world, but I'd dare say it's a better means to applying principle to law and politics than one based on the knee-jerk and arbitrary concepts of oppression and unequal power, which are inevitably in the subjective eye of the beholder.

[Brad S]

Omnibus Bill - interesting post, but I have to ask: how is it that a 15-year-old has an 18-year-old twin brother?

[Jim]

I think it's possible for a libertian to agree that some folks use their private property rights in ways that are less than fair or just, and still defend that right. The government can and does step in to defend 'private rights abuse' in the instances of theft, murder, breech of contract, etc. and libertarians agree with that. However the reason a private person stipulating a a situation that some may consider a rights violation and the government doing it is the fact that people have a choice as to whether they submit to the private restriction, but not the government-mandated restriction.

If the free market does in fact produce a de facto situation of rights abuses by private persons, one should consider whether it is really a result of the free market or of the government's influence. Workplace drug testing is one case in point, a now common violation of personal privacy that is hard for a person to avoid due to its commonality. If the government wasn't exaggerating the dangers of drugs, keeping them illegal and encouraging employers to keep a 'drug free workplace' I doubt the practice would be as common as it is.

The case here I think is pretty clear cut - if the Homeowner's Association has the right to gain access to your property for 'maintenance', that does not necessarily give them the right to allow the police in with them, any more than they can let in the nosy neighbors who want to see how much expensive stuff you have or how clean you keep your house. Their level of access is contractually limited.

[Jim]

One more point, directed at Joe's comments...
Private property rights are people's rights. Property itself has no rights, but it's owners do. If you take the principle of 'freedom from oppression in all its forms' without a consideration for property rights, you end up with endless moral quandries that cannot be solved without screwing someone. Do athiests and satanists have the right to free speech in a church? Does a persons' right to seek living accomodations mean the people can squat in your living room and you can't get rid of them? Does your right to privacy prevent an employer from checking to see if you really worked and went to school where you say you did?

Private property rights are the only way to resolve these issues without having the government step in and dictate every decision. If that's your idea of freedom, I'll take free market oppression any day.

[Kevin Carson]

When you consider all the areas of life where you are signing away your rights by "implied consent," or where the courts have ruled you have "no reasonable expectation of privacy," the Bill of rights is no longer applicable most of the time. Reminds me of a National Lampoon civics text that said the B of R was being kept around as "an example of good penmanship."

[W.J. Oliver]

Question:

1)Is "Homeowners Associations Constitutional?

2) If I want to buy a house in any community, can
I choose not to join the association?

3) If I choose not to join can the association legally prevent me from buying into that community?

[Marlene]

I moved into my community because of all the rif raft that was moving into my old community. I've lived here since the middle of May and my Home Owner's Ass. has been a nightmare. We discovered the air condition unit was placed right below the masterbath room window, so we were going to have a private fence put around in front of the unit which is to the back of our new home. Nope said the HO,put bushes up around the unit(yeah, to hide the intruder) so we were going to put up lattis, Nope said the HO, so nothing at this time has been done. But if I get attacked I NO who to sue!!!! We also asked permision for a building just like our home to be put out back for our lawn equipment.Nope' said the HO, so now we can't even park in our garage.

[Jean Winters]

1. The lawyer that invited the FBI into the home is the same lawyer for our homeowner association. I have watched him repeatedly misstate the law, presumably to placate those on the board who hired him. It is utterly astonishing.
2. Apparent authority is not a catch all for anything goes.
The examples used in the miami herald were very different from a board and homeowner's association. If you read the Miami article, the lawyer could not keep even his own story straight. A motel operator has owns the motel or at least is an agent of the owner. A board is not hte agent of a homeowner. A roommate has possessory rights in his residence. A board has no such possessory rights. There is no good faith belief that the board has a right to break into a house without a warrant. In my humble opinion, this is bull hockey.
3. The only difference between 'public' government and private government (eg homeowner associations which are a quasi-government, non-profit corporation) is that with public government you have some protections under the Constitution. Not so with private government.
Any society must have some regulation, or government or there will be chaos. Why some people would rather be regulated by a private quasi-government where they have no protection from abuse, instead of a public government is truly beyond me.

Finally, Joe is right. The history of the 4th Amendment and privacy laws is that people - not places - have rights.
As to Jim's comment about satanists in church, I suggest you go study your Constitution and the First amendment. A church is a private institution, not a governmental entity.
A satanist has no first amendment rights as against a church.
The point of the Constiuttion was to protect against governmental abuse, not private abuse.
And for those who think they would take private abuse over governmental abuse any day, I have some stories to tell you.

Jean in Boca Raton, Florida

[Jean Winters]

And yeah to the earlier comment ANYONE answering your door does pretty much have the right to allow a search.

This is not true.

[Jean Winters]

The attorney, by the way, who invited the FBI with him to break into the house was who I call "Keith Cool Porsche."
He is not what I would call a very good role model.
He seems to have a problem remembering the law.

[Jean Winters]

If you check the above link, you will find an article about the Almasris. The legal 'authority' quoted is right about fbi having the right to go along with someone who has the legal authority to enter a home. The key question here is 'one who has the legal authority'. I do not believe that Backer or any HOA has the legal authority to enter an association member's home based on an entry clause written for the purpose of checking for violations.
This is some of the most twisted interpretations I've seen, ooops , but not from Backer. I have a list of them.

[Jean Winters]

It's the "apparent authority" clause which concerns me. Vicarious authority is more than interesting, it's pure sleaze. Does any slob answering your door have the constitutional "authority" to permit an investigation?
**NO**

Why do courts permit it? ***
Judges want to get re-elected for their 'law and order", well, until they are overturned....

(I can't see the relevance of whether the "authority" is derived from statist or free market sources. Abuse springs eternal, yes?)
***
YES, only with private *governments* you have none of the protections you have against *real* governmental abuse.
I call privatization an end run around the Constitution.

[Jean Winters]

Well, Joe, if the by-laws of the association specifically state that the association may enter, and that law enforcement may accompany them, then I wouldn't have a problem with it.

WOW you are a trusting soul. There is no way in hell I would agree to this.

[Molly Jean]

I think Omnibus is correct about apparent authority -- do the police have reasonable cause to believe that the person answering the door has permission to grant a search? This was not the situation in the breaking and entering of a vacant house. There was nobody to answer the door.

The attorney who piggybacked the FBI onto the breakin claimed the house was abandoned, and contractually the Association had a right to enter the home (right of entry clause). To use the clause as that attorney did is a mangling of law. At one point, he claimed the Board's only interest in entering was to ensure that assessments are paid. Really?
What did he intend to do? Take money off the guy's dresser?

Many association attorneys are getting hammered in court on issues that boil down to the lack of any coherent oversight of mini-dictatorships. The association attorneys and property managers have a sweet deal, with few willing to challenge their actions - legal or not.

I'm not saying there are NOT good attorneys and CAMs - I just haven't seen them. And I've seen more than a few.

This is what happens when you have 'pure free market' - there is no free market. What there is is cronyism, and an open invitation to abuse. It is no different that communism - great in theory, lousy in practice.

ANd to the lady who was concerned about rif raf. Give me rif raf any day over the pretentious self-appointed dictators who don't read - let alone read the law or the covenants. No, here, the "community" members (the ones that are vocal, anyway) have more money than brains. Give me a purple house anyday.