October 23rd, 2008

Housing Assocations: Natural Enemies of Property Rights


photo credit: Orrin

In an effort to improve “community standards” and increase property value, it has become popular in recent decades for real estate developers to form housing associations—pseudo-governmental governing bodies that enforce certain policies and standards upon the whole community. As HOAs have proliferated, property rights have all but vanished.

It is important to understand at the outset that a person does not have a certain right if he cannot make use of it, or can only use it in limited fashion. The right to bear arms, for example, becomes nearly meaningless if it is encumbered with rules and regulations that determine how, where, when, and why you may bear arms. When the burden of limitations upon the so-called right delve into frivolous minutia—once only the envy of micro-managing bureaucrats—then that right has degraded into a privilege extended by the individuals who govern you.

However, rights are often subject to the security and well-being of the community. Just as it’s not right to use free speech to induce fear or catastrophe (say, by yelling “fire!” in a crowded setting), or use your freedom of assembly to assemble in the girls’ locker room, so too are property rights subject in certain cases to realistic and acceptable laws put in place to protect your neighbors.

Such limitations on natural rights, though, are few in number and generally understood to be necessary. In contrast, some of the measures found in the Covenants, Conditions, and Restrictions (CC&Rs) of most HOAs are downright draconian. Telling property owners what color paint they must use (specifying exact shades, no less), how high their trees and playgrounds may extend, which flags or signs they may display in their yard, and which vehicles they may park in the driveway are not the types of regulations established in an environment where liberty may flourish.

Indeed, the very existence of such rules implies a drive towards uniformity—a hallmark of communistic flights of fancy. In a proclaimed effort to establish a community of ideal and improved standards, the HOA works by suppressing the varying manifestations of property rights they deem injurious to the desired standard of living. What’s worse is that these pseudo-governmental agencies are free from many Constitutional restrictions their municipal counterparts are subjected to, and are a far cry from providing a fair, representative system to oversee the administration.

In many HOAs, the board is comprised of elected volunteers; in communities still in their infancy, the developer usually has full control of a paid staff (the salary and benefits our HOA employees give themselves amount to 46.5% of their overall revenue), leaving the residents without any say in the ever-shifting policies. To such property czars, the concept of property rights and individuality are a foreign concept deemed dangerous and easily dismissed. Instead, their totalitarian drive for uniformity and perfection makes them a natural enemy of individual property rights.

This is no small matter—an estimated one-sixth of all Americans are subjected to such contrivances. To the extent that HOAs are allowed to impose such stringent rules, property rights will continue to fade into the annals of history.

40 Responses to “Housing Assocations: Natural Enemies of Property Rights”

  1. Allie
    October 23, 2008 at 7:36 am #

    I live in an HOA, and would encourage those considering moving to avoid HOA’s.

    Ours has a pool and club house with exercise room and play grounds scattered throughout, which are very nice amenities, but I always worry that someone is going to complain about our chickens and we’ll have to get rid of them.

    Even though they are quieter, and less smelly than many dogs in the nieghborhood.

    So far ours doesn’t seem to be too obnoxious, and I’m planning on being involved once the builder no longer controls things.

  2. Daniel
    October 23, 2008 at 7:44 am #

    I admire your sense of outrage. Can I suggest a topic for your next post: “People Who Park Their Small Cars So It Looks Like They’re Not Taking Up a Space But Then You See That They Actually Are: Agents of Deception”.

    More seriously, though. You say that rights are meaningless unless they’re absolute with no conditions (or at least ‘generally understood to be necessary’ conditions). Does this mean that we actually have no rights? because I’m trying to think of a right that isn’t abridged in some way, and not succeeding.

  3. Kelly W.
    October 23, 2008 at 8:30 am #

    Connor, do you live in an HOA?

    I have actually read a little bit on HOAs, and I was unaware until last month of the restricting nature of many HOAs around the USA. Apparently as I was led to believe, many of the HOAs are nothing more than schemes to enrich the directors of HOAs by charging fees, etc., at the expense of the property owner (and his diminished rights). You mention this when you state that 46.5% of the fees go to pay the salaries of the HOA administrators.

    I was also led to believe such movements are being sanctioned and accepted by Federal Government because of the lobbying efforts of unscrupulous people and groups.

    If what I have been led to believe is even partly true, this HOA movement needs to be scrutinized more fully.

  4. October 23, 2008 at 8:56 am #

    In my HOA since their is no real enforcement of the by laws , people ignore them generally. Everyone is required to have either wood or vinyl fencing. Many have chainlink. It doesnt really bother me. I feel liberty trumps aestetics anyday.

    The zoning ordinances are a crock too. I have a full basement apartment i could rent out for $800 per month but the city says i cant because we are not zoned for it. So I have this asset that i can not use because some beaurecrat says no. Just plain baloney

  5. Russ
    October 23, 2008 at 9:07 am #

    @Marc

    It totally depends on the HOA. Some are very strict. I think Daybreak and Suncrest in Utah are both very strict. But it isn’t he HOA that is strict as much as it is the HOA managment company that was hired by the HOA.

  6. October 23, 2008 at 9:58 am #

    Study some of Verlan Anderson’s writings. He speaks alot about these types of arbitrary rules and he makes a great of sense

  7. Jeff T.
    October 23, 2008 at 10:24 am #

    I agree Connor. Just be grateful that the tyranny is on a local level, rather than a state or federal level. Local tyranny is better than national tyranny, right?

  8. October 23, 2008 at 10:37 am #

    Just don’t purchase in an HOA. It is not really tyranny if you are not forced to buy or sell.

  9. Connor
    October 23, 2008 at 1:02 pm #

    Allie,

    I live in an HOA, and would encourage those considering moving to avoid HOA’s.

    Ditto.

    Daniel,

    Does this mean that we actually have no rights? because I’m trying to think of a right that isn’t abridged in some way, and not succeeding.

    It means we don’t fully enjoy our natural and inherent rights as we should, in most cases. What government cannot control, it fears.

    Kelly,

    Connor, do you live in an HOA?

    Yep, this one.

    Marc,

    In my HOA since their is no real enforcement of the by laws , people ignore them generally.

    My HOA is very aggressive on enforcement. If you haven’t paid your dues in three months, you’re sent to collections. If your house does not conform to the CC&Rs, you are fined and ultimate have a lien put on your place. Foreclosure, in the end, is within their power as well.

    Study some of Verlan Anderson’s writings. He speaks alot about these types of arbitrary rules and he makes a great of sense.

    I really enjoyed his book The Moral Basis of a Free Society.

    Jeff,

    Local tyranny is better than national tyranny, right?

    Agreed. It’s always better, though, to have some recourse to fight back. In a system without any representation, that’s not as easy.

    ajax,

    Just don’t purchase in an HOA. It is not really tyranny if you are not forced to buy or sell.

    That’s not the point. I’m not saying “oh, these situations are not ideal, so stay away from them”. Were that the case, it’d be a simple matter of preference and personal choice.

    What I’m saying is that things should not exist anywhere in America. Regardless of one’s ability to buy a home not under an HOA, the discussion here is that HOAs should not have these powers, nor exist in this form in the first place.

  10. October 23, 2008 at 1:16 pm #

    Should the BYU Honor Code exist? It is a lot like a HOA. If you are a landlord you can rent to BYU students unless you provide beds, desk space, and enforce the honor code.

    I guess the honor code doesn’t dictate what color/style of clothes we can wear. It allows for some diversity.

  11. Jeff T.
    October 23, 2008 at 2:12 pm #

    I will say, if I am a developer and have purchased a large portion of land I would like to lease for people to live on, then I should have the right to control what happens on that property. However, if I sell the land, such that someone else is the owner, then I have forgone my rights of control over that property.

    My question: is it possible that the contract by which I sell the land to someone else may contain stipulations for the use of the property? In that case, could a developer may sell land to purchasers, under certain contractual conditions?

  12. Jeff T.
    October 23, 2008 at 2:14 pm #

    Micah,

    The difference is that for apartment owners to be BYU approved, they must abide the conditions. However, if they fail to abide, BYU doesn’t have the authority to “fine” or “foreclose”, only to withdraw the approval for BYU students to live there. BYU isn’t given legal authority over the property.

  13. Connor
    October 23, 2008 at 2:15 pm #

    My question: is it possible that the contract by which I sell the land to someone else may contain stipulations for the use of the property?

    This type of question arises when discussing the ability to sign away one’s rights. For example, is it Constitutional and legal for me to sign myself into slavery? Can I forfeit my right to life at the stroke of a pen, or would such a contract be null and void to begin with?

    I’m of the opinion that you cannot sign away natural rights. You may delegate them, yes, but that’s an entirely different beast.

    In that case, could a developer may sell land to purchasers, under certain contractual conditions?

    I purchased my house from the previous owner, not the developer.

  14. Jeff T.
    October 23, 2008 at 3:01 pm #

    I purchased my house from the previous owner, not the developer.

    I figured. The question was purely hypothetical.

  15. Jeff T.
    October 23, 2008 at 3:08 pm #

    One reason I ask is that I heard a story once about our local Macey’s. I have NO clue if it is true, but the story goes that the owner always closed on Sunday. He eventually sold the store to a new owner, but one of the stipulations of the purchase was that the new owner must also close on Sunday. I don’t know if it is true… can these kinds of stipulations be built into a contract of purchase?

    It seems that some stipulations are treated as legally binding; for example, I purchase a book or cd with a legal stipulation that I won’t copy and distribute it. Whether or not those stipulations are right, they do seem legally binding. Can others be as well?

  16. Connor
    October 23, 2008 at 3:11 pm #

    …for example, I purchase a book or cd with a legal stipulation that I won’t copy and distribute it.

    I don’t believe that that stipulation is part of the contract between you and the vendor. The government has set up regulations external to that transaction, specifying what owners may not copy.

    To your larger question, though, I’m not sure what the legal basis is for mandating what a person can do after becoming whole owner of an asset or organization. I’d be curious to see if there’s any precedent for such control.

  17. John C.
    October 23, 2008 at 3:23 pm #

    Connor,

    I tend to agree with you that HOAs are a nuisance, but the motivation behind them is usually capitalistic. HOAs want to create a better product through control of participants, so that they will be more appealing to the market. While their methods may be very vaguely reminiscent of the abuses found in socialist dictatorships, the motivations behind them are based in pure capitalism.

    That said, I am concerned about this line of reasoning because it goes in contrast to the Hobbesian notion of sacrifice of natural right for community formation. If we wish to be a member of the community, we have to be willing to play by the community’s rules. That is why you should pay your taxes, amongst other constraints on our freedoms and property as American citizens.

    I find this particularly troubling because, while you didn’t purchase from the developer, you should have known what you were getting into. If the person from whom you bought the house failed to explain all the stipulations involved in living in that neighborhood, I would think you would have a case against them in court.

  18. Connor
    October 23, 2008 at 3:27 pm #

    While their methods may be very vaguely reminiscent of the abuses found in socialist dictatorships, the motivations behind them are based in pure capitalism.

    Capitalists provide a service or product—they do not impose their standards or desires upon their customers. Communists, too, seek for a utopian, “appealing market”, but one that they can control and craft to their own standard.

    If we wish to be a member of the community, we have to be willing to play by the community’s rules.

    That’s fine, so long as there is full representation in the system so that policy change can be effected by those who desire something different. In a developer-controlled HOA, the community has no say in what rules they will abide by.

    Additionally, laws and regulations have their proper sphere. Is it acceptable to allow the government or HOA to interfere in minutia and frivolity? Should we really give an organization with punitive power the ability to tell me where my garbage cans should be placed?

  19. Carissa
    October 23, 2008 at 3:46 pm #

    We bought a condo in an HOA during our college years. After we’d been there for a while, we realized it felt like we were still renting (since so many things were beyond our control) and we couldn’t wait to get out of it.

    A few weeks ago I visited some friends who bought a nice home in an HOA (in that area of Arizona there is hardly any other type of housing to choose from) and they were telling me that they can get fined if their garbage can is visible from the road (not tucked away in the garage) on non-pick-up days.

  20. John C.
    October 23, 2008 at 4:05 pm #

    Connor,

    Again, I think HOAs are ridiculous, but people like them because they feel member and strict enforcement improves the market value of their home or their living experience. This is the service or product that justifies the existence of HOAs. If it were not for these perceived benefits, people would not submit to the intrusive rules.

    No-one forced you to be a member of that community. If you feel like you were tricked into purchasing the home because the role of the HOA in that community was not fully explained to you, presumably there is some government regulatory agency out there that would be able to help you seek redress.

  21. October 23, 2008 at 10:32 pm #

    HOAs are the smallest form of government. They tax and the heads are elected. The best thing about them is that you don’t have to live in them. I personally don’t understand why people would want to live in them, but the argument about misrepresentation is pretty lame. It is another argument against personal responsibility. When you move into a neighborhood with an association, there are two facts that are known immediately: you pay dues and there are rules. There is nothing more that you need to know. If you don’t want to live by someone else’s rules and you don’t want to pay extra tax, then don’t agree to do so.

  22. October 24, 2008 at 6:46 am #

    I’ve lived in a planned community for 30 years. Yes, some things are annoying, but on balance things are great. We know for certain no one will put a purple house on our street, nor build a log cabin on the corner. There will never be a sneaky overnight P&Z change that allows a developer to put an apartment complex in our neighborhood. If that is tyranny, it is one we freely chose and would not give up willingly. If you don’t like homeowners’ associations, the solution is simple: don’t buy there.

  23. David
    October 24, 2008 at 8:50 am #

    Correct me if I’m wrong Connor, but I doubt that your opinion of HOA’s is new to you. Why did you choose to move into an HOA neighborhood in the first place?

  24. Connor
    October 24, 2008 at 9:06 am #

    Why did you choose to move into an HOA neighborhood in the first place?

    My only previous experience with an HOA was in the condo we lived at before moving here. The monthly fees were double what they are here (sheesh), but there were hardly any restrictions. Instead, the fee was for an exchange of services rendered by the board to the community citizens.

    I didn’t investigate the HOA in the community I live in now, simply because I was not aware that such burdensome restrictions existed. The previous owner from whom I bought my house did not inform me, nor did I think to ask.

    So yes, as a buyer, it was my responsibility to do my due diligence and fully investigate this matter, which I did not do. Does that prevent me from having an opinion of HOAs in general, or the power they wield? I think not.

    This is the same situation with commenting on the nature of an organization or government you’re not affiliated with. For example, if I talk about the burden of communism under Fidel Castro, some on this thread might use their same arguments to say “well if you don’t like communism, then just don’t move to Cuba”. But these people miss the point: the problem is communism itself, regardless of whether I choose to live under is oppressive rule. Whether I’m a casual observer, participate, or subject, I’m still able to opine on the matter in general and discuss the underlying principles.

  25. Daniel
    October 24, 2008 at 9:15 am #

    I guess it just shows that the specter of Communism can pop up anywhere, even in your own lounge room.

    Crafty Bolsheviks and their schemes. Colour schemes.

  26. Allie
    October 24, 2008 at 9:16 am #

    I chose to move into the HOA I live in full knowing the rules and restrictions. I chose to do so because of the benefits the HOA provided.

    For a very low monthly fee I have a swimming pool and kiddie pool (in the summer), a hot tub (year round), and a very nice club house with a play room, kitchen, exercise room with full changing rooms/showers. I couldn’t buy a pass to the SDRC for anywhere near the same price. Plus, I can walk to the exercise facilities here, saving gas money.

    I have had two complaints made against me while living here. One was because we left our camping trailer in our driveway more than 48 hours in between summer camping trips. And the other is for some pets we have in the back yard.

    I got an email asking me to take care of the issues, which I did. I have not been contacted again. It really bothered me (and I think this is my biggest issue with an HOA) that a neighbor would complain to the HOA instead of talking with me directly. I think HOA’s make people feel less neighborly to each other.

    If I had it to do over again, I don’t think I would move into an HOA, although this one so far doesn’t seem to be too overbearing. I see garbage cans out on the wrong days pretty regularly, and nothing seems to have come of it yet.

  27. David
    October 24, 2008 at 9:26 am #

    I did not mean to imply that you did not have the right to comment on HOA’s. I just thought it interesting that you would choose to live in one if you felt this way. I can see how your previous positive experience could help to lower your guard. In my experience, HOA’s seem like a very reasonable way to address the issues of communal property in condo’s.

    I guess I’m lucky to have friends who had experience with HOA neighborhoods before I ever had to learn by my own experience (and yes, some of my friends like their HOA’s – like Allie does – and even serve on their HOA boards, but I was able to know in advance that an HOA was not a good fit for me).

  28. John L. Pehrson
    October 24, 2008 at 6:40 pm #

    Conner,

    In terms of personal feelings, I agree with you completely. However, I am a vacant land investor, and occasionally develop land. I have put HOAs in place. Why? My market demanded it.

    In one instance, I put together a small development without an HOA. These were individual lots. After selling out most of the lots, I was approached by the lot owners and asked to put an HOA together. Many people have come to expect HOA restrictions, just like they expect zoning to restrict their neighbors actions.

    In the case of HOAs, they are put in place by the owner of the land, and others purchase subject to those restrictions. In the case of zoning, governmental agencies have taken private property rights from land owners without just compensation. So, I think an argument can be made that the establishment of HOAs is an exercise of private property rights, while zoning is the confiscation of private property rights.

    A few years ago, my wife and I bought a house in a subdivision with an HOA. Prior to moving into the house, someone (anonymously) stuck a note on our garage, informing us we were expected to keep our lawn mowed. My wife was furious. Further, we were informed we could not fence in our yard, to keep our dog in and other dogs out.

    No, I don’t like HOAs.

  29. John C.
    October 25, 2008 at 7:26 am #

    Connor,

    If you don’t want to single out HOAs, then your criticism applies equally to any organization that has standards for membership and charges dues. Why stop at HOAs? Why not attack the Boy Scouts, the Kiwanis Club, or the LDS Church?

  30. Connor
    October 25, 2008 at 8:02 am #

    Why not attack the Boy Scouts, the Kiwanis Club, or the LDS Church?

    Those and other organizations are voluntary organizations that do nothing to interfere with natural property rights.

  31. John C.
    October 25, 2008 at 9:20 am #

    An HOA is a voluntary organization. All of the organizations mentioned make material demands on your time and money, in some cases making membership dependent on those contributions. They may not tell you high how your grass should be, but they do make demands of how you should live your life.

    If your point is that people can boss you around about important stuff, but not about unimportant stuff, I remain confused.

  32. John L. Pehrson
    October 25, 2008 at 9:23 am #

    Real estate ownership can be broken down into a bundle of rights. Each of these rights is separable from others. In other words, when I purchase real estate I am not necessarily acquiring all rights associated with that property. Examples of separable rights include mineral rights, water rights, timber rights, viewing rights, air rights above a certain level and various leasehold rights, to name just a few.

    The point I am making is that the owner of property has the right to sell all or only part of his ownership rights in that property, retaining some of those rights for himself. That, in essence, is what a developer does when setting up an HOA.

    I agree that there are reasons to object to HOAs. However, taking the position that HOAs should not exist because they constitute interference with private property rights is not a valid argument.

  33. RoAnn
    October 27, 2008 at 7:51 am #

    Interesting discussion. My husband and I have lived in several different areas of the country, in houses with, and without HOA’s. In all cases where we would be subject to HOA rules, we obtained a copy of those rules prior to closing. In some states it seems to be a requirement to furnish a copy of the covenants, but perhaps Utah is not one of them.

    Personally, we have been happy to live in a development with a HOA, for several reasons mentioned by commenters previously on this thread: amenities, maintaining the value of the property; maintaining a clean and orderly environment.

    I think I understand how your objection to HOAs fits in with your overall philosophy of life, Connor; but I would feel that my personal rights to choose the kind of living conditions I preferred would be abridged if HOA’s were outlawed.

  34. October 27, 2008 at 9:10 am #

    On the flip-side, I drive around Utah and see some of the older neighborhoods where there are no guidelines, and people’s homes are in disrepair. They leave crap on their front lawn and car parts and fences and all sorts of junk are strewn about. Lawns are not mowed, and home additions are haphazard. Given a choice, I’d prefer the neighborhood I grew up in, where you have to ask your neighbors to put up a fence, you had to get permission to build a shed, and clothes lines were not permitted (even though I personally like the functionality of clothes lines). If people don’t want to keep up their home (or can’t afford to) then perhaps they should be renting. If they want to be able to do whatever they want to their land because it’s theirs, then maybe they should live in a trailer park where there are fewer regulations, or move to a ranch in the middle of nowhere where their decision to trash their property doe not affect the value of their neighbors’ property.
    I understand there are limits and maybe some neighborhoods go to extreme, but as mentioned above, you should be able to get a copy of the rules before you move in, and if you want to live in a neighborhood where you can do whatever you want, then you will pay the price in the aesthetics of the environment and in the value of your property, because unless they are pressed to do so, some people just will not keep up their homes.

  35. RoAnn
    October 27, 2008 at 5:30 pm #

    Amen, Kaela! Sad, but true, that we mortals often need terrestrial (or even telestial) level incentives to motivate us to keep our living spaces well maintained.

  36. Connor
    October 29, 2008 at 3:51 pm #

    Will Grigg published an article a couple days ago on this subject that’s worth reading, if for nothing else than to see some more examples in which HOAs resort to their only tool—force—to coerce individuals to follow petty protocols decided by a board of unsympathetic (and non-representative) individuals.

  37. October 29, 2009 at 9:29 am #

    One common way that HOAs break the law is to complain about rooftop antennas. I always hit them back with the federal FCC legislation that allows me to place an antenna on my roof. The legally allowed dimensions are actually much larger and uglier than most antennas. At least I’m not exercising the full extent of my rights.

  38. December 3, 2010 at 10:16 pm #

    Wow! I am actually really glad I just found your blog post about HOAs. In fact I was just talking to a friend today about bad HOAs are with the regulations that they impose on the homeowners. I seem to always have a similar conversation with most friends or fellow homeowners. A conversation full of how ridiculous HOAs are with the letters and notifications they send to us….

    Anyway, this is a good post here and I am for sure going to pass a link on to some friends. I like the way you eloquently worded how regulation imposing horrible HOAs are.

  39. July 27, 2011 at 9:57 pm #

    I guess I’m pretty late in responding to this post but I figured I’d chime in anyway.

    JLP in post #32 is exactly right. As a real estate appraiser one of my first steps in performing a property valuation assignment is to determine the rights of ownership to the property being appraised.

    Fee simple ownership is typically defined as ownership of the complete bundle of rights included with a parcel of real property with the exception of those property rights nearly always maintained by the government (taxation, eminent domain, police power, and escheat). When you bought your home in an HOA you didn’t buy the complete fee simple interest in your property because some of the property rights were vested in the HOA per the CC&Rs. This should have been disclosed to you when you purchased the property.

    I agree with you that many HOA rules and restrictions are asinine but an argument that they shouldn’t be possible is actually an attack on the very idea of property rights. If the different rights of ownership can’t be separately held and transferred the freedom of an individual to own and dispose of their property as they see fit no longer exists.

    I hate to disagree with you (I don’t think I have done so before) because you’re one of my favorite online personalities and commentators but when you’re wrong…you’re wrong.

  40. January 3, 2012 at 10:16 pm #

    Hello to all. I feel HOA’s can be a very good thing but that a Home Owner should never have to worry that their Home can be taken away from them and sold for a few hundred Dollars owed. This should never be allowed as there are reasons why a family might not be able to pay. Loss of work,medical bills any kind of financial worries or loss of income that mean a family can pay but might not eat for a number of days at a time. In many cases People on the HOA boards do not care about problems others have as long as it doesn’t affect them.

    Tom

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