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Homeowners Associations Are Out of Control in Texas

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Texas is one of the fastest growing states in the nation. All around the major cities there are new housing developments whose builders eventually finish their work and leave behind a covenant which property owners sign on to which usually includes membership in a Homeowners Association, which charges some sort of small membership fee for certain basic services which it provides. Residents can vote on the board of the association and it has the power to make and enforce the provisions of the covenant and any additional rules which it passes for its members.

These HOAs are essentially micro-governments with very broad powers and with little accountability to anyone outside of the dominant voting faction in their neighborhood. Residents who are out of step with their neighbors or who run into problems with the rules of their neighborhood have few recourses if the HOA board decides to single them out for persecution, and punishment usually comes in the form of fines which may eventually lead to a lien being placed against the property and even seizure of the property.

You may argue that this is a consensual relationship and that homeowners knew they were signing a covenant and joining a HOA when they bought their property, but few of these homeowners are aware of the trouble they may be getting into and the kind of small-scale dictators they may be dealing with in a HOA — people with too much time on their hands and whose lives revolve around how tall your grass is and whether you have the right kind of flowers planted along your driveway. Sometimes it is government on the smallest scale which is susceptible to the greatest corruption and abuse of power, and HOAs seem to be breeding grounds for cliques and oppression of non-conformists by a narrow-minded majority.

Two recent examples here in Texas have made it very clear that something needs to be done to rein in the petty abuse of power which is being exercised far too often by Homeowners Associations in the many new neighborhoods which have grown up around our major cities.

In ultraliberal Travis County Andrew Clements has become the target of persecution from the board of the Falcon Pointe subdivision because of his politically incorrect career choice. No, he's not skinning animals in the front yard or building his own nuclear reactor. He's running an Internet business where no customers come to his house and nothing he does is visible to his neighbors. Yet he has been threatened by his Homeowners Association and prohibited from earning a living as he chooses, despite the fact that there were no rules prohibiting home businesses in the neighborhood at the time he bought his home.

Clements' great transgression is that his business of choice — his method of earning a living in these lean times — is to sell firearms to hunters and law enforcement. It's a perfectly legal business. He has the right permits from the federal government. He has broken no state or federal laws and his business is protected by both the Second and Fourth Amendments to the Constitution. But none of that seems to protect him from the Falcon Point HOA which has passed a rule specifically prohibiting residents from buying and selling firearms in the neighborhood, a rule written specifically to target just one homehowner, Andrew Clements.

Clements' case is a classic example of a tyrannical majority persecuting a minority for actions which they find unacceptable, but which are by no definition criminal. Sadly it's not the only example of a HOA abusing its power and violating a resident's rights. Even more disturbing is the case of Captain Michael Clauer who returned from deployment in Iraq to find that his paid-off $300,000 home had been foreclosed on and sold at auction for $3500 by the company hired to manage his neighborhood by his Homeowners Association.

While Captain Clauer was in Iraq his wife Mae became depressed and didn't pay attention to responsibilities like opening mail and paying bills. She never saw notices from the HOA about outstanding fees or the lien on the property and ultimately the foreclosure which they lead to. Ultimately the $300,000 home, which was a gift from her parents, was foreclosed on and sold for barely a 100th of its value to cover $800 in fees and fines. This despite the protections of the Constitution, Texas law, and the Servicemembers Civil Relief Act which is supposed to protect the jobs and property of soldiers on deployment.

The Clauers' situation would be grossly unfair under the normal circumstances, which apply to hundreds of HOA foreclosures in the state every year, but it is doubly outrageous when the victim is a soldier who was fighting for his country during the proceedings.

Ironically, Texas is known for having one of the strongest Homestead laws in the country, as well as new laws making eminent domain seizures by government more difficult. But none of this blocks property foreclosure by a Homeowners Association under a 1987 court ruling which declared that no matter how small the amount owed and despite all protections under state and federal law, including the Constitution, HOA's may foreclose on property for outstanding fees.

The problem in both of these examples is that private contract law is viewed as paramount in most situations. In most ways this is a very good thing, but it does open the door to abuse when a citizen enters into an agreement which he cannot comply with for unforseen reasons as in the Clauer case or when the administration of the rules he signed onto is biased or the rules are changed as in the Clements case.

In other similar situations states have stepped in to regulate the behavior of groups exercising this sort of power or industry organizations have been formed to self-regulate and prevent abuse. In Texas the Texas Apartment Association is a good example of a similar industry where self-regulation has successfully curbed abuse and protected the rights of both tenants and landlords. Clearly something similar needs to happen to limit the power of Homeowners Associations.

I abhor excessive government regulation, but Homeowners Associations need to play by the same rules as everyone else and be held accountable for their actions. They should respect the rights of their residents and not engage in unfair and abusive practices. They certainly shouldn't pass rules to selectively punish unpopular but entirely legal activity or seize valuable property over small amounts in outstanding fees. The rights of citizens to own property and to do whatever they want in the privacy of their own home are more important than any rights held by a contractual association. That is why they are recognized and guaranteed in the Bill of Rights. Home buyers cannot give up or sign away those Constitutional rights when they buy a house.

This situation is out of control and it threatens too many of our citizens who may have sunk their life savings into a home and cannot afford to lose it and may not be able to sell it in a weak market. If Homeowners Associations do not act to self-regulate on a state or even nationwide basis, then the government may have an obligation to step in and set some rules and impose limits on the powers of HOAs. This is a civil rights issue as serious as any we have seen in the last two generations and something must be done to protect property owners from HOA abuse and unreasonable foreclosure.

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About Dave Nalle

  • STM

    Coupla 12-gauge pellets into the gardenias might do the trick, Dave.

  • Doug Hunter

    Thank you for the article and bringing some of what the HOA scum are doing to light. HOA’s should have no say except over public spaces and group amenities, period. Contract law is contract law, but these open ended ‘we can change the our end at any time and hold you fully accountable’ types are far over the top.

    I will never purchase a home in a homeowners association (unless I get a chance to pick up a $300K home for $3500) nor will I assist my children or anyone in my family in doing the same. I abhor the authoritarian busybody types which, unfortunately, is becoming the norm in America today. These are the assholes who are more concerned in how other are living than in enjoying their own freedom. These are the assholes who scoff at every mention of the words freedom or liberty or even libertarianism. These are the ‘progressives’ who, since they know what’s best for everyone, feel that ‘progress’ can be made once they force everyone to live as they see fit. For them, the world is and must be about control.

    There is another way. It’s called enjoy your freedom as you see fit and don’t worry what others are doing with theirs (as long as they aren’t injuring you). Everybody wins.

    Thanks again Dave Nalle for the article and the excellent points within.

  • Doug Hunter

    Another thought I had while reading this. People look at government the wrong way when considering these things, they never consider that they will be the target of the tyranny of the majority or that they will be the outsider. A better way of approaching these things, whether it’s HOA, local, federal, or state governments would be to view each law or ordinance as whether you would approve if it were your mortal enemy enforcing it on the other end (undoubtedly for some poor soul that will be true). Would you want to give your enemy blanket ability to foreclose on your house for minor infractions or to change the rules at any time? No. I don’t think his views would effect neighborhood pool maintenance or park upkeep so that might be OK. Same principles work for Federal, you might not want your enemy tapping your phone or holding you on trumped up terrorism charges indefinitely, but there’s not much he could hurt you with while providing for national defense or building roads.

  • http://pvtgov.wordpress.com George Staropoli

    With respect to homestead protection, the Texas Supreme Court in Inwood v. Harris (1986) held servitudes law to be superior to the Texas Constitution and it strong homestead protection.

    Read more about the second political form of local government, the HOA.

  • http://www.republicofdave.com Dave Nalle

    Yes, George. And that’s the problem.

    Dave

  • http://blogcritics.org/writers/realist Realist

    Homeowner associations represent the real-life issue that has gotten Rand Paul in such a pickle. Are the individual owners not told by a small and vocal group what they can and cannot do with their own property? Yet if you attempt to allow individual expression of ownership that departs from the imposed community standards, some see that as detracting from the value of their own holding. So which position truly represents the rights of the property owner?

  • Clavos

    Good point, Realist. Seems to me the only solution for those of us who value individual rights is to not buy into neighborhoods with HOAs, a practice I’ve adhered to all my home-buying life.

  • Realtor

    I used to live in USSR and I can tell you the first hand, HOA idea came from there. The name itself, Home Owners Association is ironic because by nature these predatory groups deprive home owners of their true ownership rights. So there…

  • Glenn Contrarian

    Dave –

    This is one of those rare times I agree with you in toto. My own HOA also refuses to let anyone run a business from home…unless you’re one of the ruling clique, that is. And just to tweak you a little bit, the worst of the bunch (who lives across the street from me) is quite conservative (and doesn’t realize this is a family-oriented housing development and NOT a kid-unfriendly retirement community) – so to insinuate that this is because of liberals is a bunch of hooey – for that’s exactly what you did. Otherwise, why would you even need to mention the political leaning of the HOA in your first example?

    And then there’s the HOA of the house where Dubya just retired to – you know, the one that banned non-white residents until 2001? One wonders if “I-oppose-the-Civil-Rights-Act” Rand Paul’s an officer of that HOA….

    But yes, HOA’s are a form of local tyranny, and unfortunately, the ones who tend to try to become HOA officers are the ones who like power, or who like being known by everyone – and as a result, the officers are often examples of the old saw that if you don’t fight for your political beliefs, then you get the government you deserve. I will say, however, that like any form of government, if they are properly run, they are a good thing.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Realist, Dave,

    Isn’t is the case, though, that you are free to either join or to opt out?

  • http://pvtgov.wordpress.com George Staropoli

    There are many things not told to buyers, the public, or to the policy makers, who, you would think, are by now aware of these continuing issues. But no. State legislatures believe HOAs are the next best thing to Mom’s apple pie. They see no problem with the trade-off of rights, privileges and immunities for a simple statement, not a guarantee or warrantee, of maintaining property values.

    Some of the negatives never to be mentioned by the promoters and supporters of HOAs are: your home is collateral for the survival of the HOA; no due process for complaints; financially, it is a partnership where with a joint and several obligation for HOA debts; communal because your neighbors can take away your rights, in spite of a so-called contract, without your consent; foreclosure by HOA that did not advance any hard funds, yet the homeowner can be punished with loss of all of his equity, which can exceed more than 10 times the punitive award criteria set by the Supreme Court for violations of the 8th amendment against cruel and unusual punishment.

    No, there is an unspoken alliance of see no evil, hear no evil, speak no evil.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I suppose the reason why it’s so is that the HOA’s are self-policing – ergo, less of a burden for the state or the municipality.

    It’s easier to deal with one such association than with individual households/property owners/properties.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Just as it is easier for the Federal government to pump money into Big Business than having to worry about the proliferation of mom & pop stores.

    Same logic.

  • http://www.republicofdave.com Dave Nalle

    so to insinuate that this is because of liberals is a bunch of hooey – for that’s exactly what you did. Otherwise, why would you even need to mention the political leaning of the HOA in your first example?

    I mentioned it because it is germane to that specific situation. In that HOA the bias against guns, which is a left issue was clearly in play. In another HOA the bias might cut the opposite direction, certainly.

    And then there’s the HOA of the house where Dubya just retired to – you know, the one that banned non-white residents until 2001? One wonders if “I-oppose-the-Civil-Rights-Act” Rand Paul’s an officer of that HOA….

    Nice spin. Rand Paul did not ever say he opposed the CRA, just that he questioned one of a number of provisions in it. On the overall act he was very clear that he was in support.

    So long as you continue to repeat the lies of the left no one will take you seriously.
    Dave

  • STM

    Realtor: “I used to live in USSR and I can tell you the first hand, HOA idea came from there”.

    What a load of rubbish.

    Not that I believe anything that happened in the old Soviet Union was any good (and yes, I did spend some time there working), but HOA’s are purely an An American phenonomenon.

    We have something similar here in Oz known as the “Progress Association”.

    It’s one of the great Aussie misnomers, along with the Liberal Party, which is just marginally to the right of Attila the Hun.

    The “progress” in Progress Association usually means lack of progress, in anything.

  • Heloise

    My motto never buy new, never buy a subdivision. I think it is karma because in Austin anyway it was clear to me as I toured some tony subdivisions (below the Michael Dell hill) that white folks were running from brown and black and asians! Okay by me. But you have to pay the piper. Homes in the city are your best value (I learned that in Paris and Chicago) and there are rarely any HOAs there to enslave you.

    If you buy a condo or a townhouse in Chicago you pay the assessment fees that fly as high as the 10K range. My sister lives in Hyde Park and no HOA but assessments are much higher than any HOA. So good luck with that one.

    It continues to go up because if something needs to be done in the complex they spread the cost out among the tenants for as long as it takes to pay off. As for selling your property if you don’t pay the assessment…I’m sure ditto. Why because technically you are defaulting on your loan.

    In the meanwhile I can add a deck to my property by not hiring illegal aliens (they charge more for shoddy work) for a few hundred dollars and no HOA in sight. But I am bound by Historic district rules. Since the deck is in backyard, who knows? Only me.

  • Glenn Contrarian

    Dave –

    On the provisions of the Civil Rights Act – and not the CRA itself – that Rand Paul opposed, Paul was asked the following question by Rachel Maddow: “Do you think that a private business has the right to say we don’t serve black people?”

    What was his answer? “Yes”. Of course he continues on to claim that he thinks discrimination in any form is wrong…but pay attention to that first word, “Yes”.

    So tell me, Dave – how can one support the CRA at all if one believes that private businesses have a right to discriminate against others based on race, creed, color, et cetera? Does that or does that not violate the spirit of the entire Act?

    And this was not an isolated answer. In an interview with the Lexington (KY) Courier last month, he said, “I think it’s a bad business to ever exclude anyone from your restaurant. But at the same time, I do believe in private ownership.”

    Of course, Dave, of course Rand Paul’s no racist! Not a racist bone in his body!

    By the way – did you know about his first campaign spokesman Chris Hightower? You know, the one that resigned twelve hours after he made this MySpace entry that proclaimed “Happy Ni**er Day!”, complete with a picture of a lynched black man hanging from a tree?

    Of course, that was Paul’s spokesman, and not Paul himself. Why should we ever think that Paul knew about his campaign spokesman’s racial views? Besides, I’m sure that the freshman politician Paul never even knew Mr. Hightower until a few days before before he hired him, right?

    Sure.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I don’t believe this, Glenn. Where do these people come from? Where have they been hiding all this time? Or is it perhaps these times of despair that makes them so? Anyway, one should click on the full post in the link you provide. And here is a proper motto on KY, which introduces Hightower’s post:

    “I want to be in Kentucky when the end of the world comes, because it’s always 20 years behind” -Mark Twain

  • John Wilson

    Good point, Glenn. In fact, the best point of the whole discussion.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Except that he’s got to draw a connection to the subject of Dave’s article. Has he done it? And if so, how does it apply?

  • Clavos

    @#20:

    Good point, Roger. In fact, the best point of the whole discussion.

  • Glenn Contrarian

    Roger –

    It wasn’t a comment that had anything to do with Dave’s article. BUT I pointed out how Dave had blamed an HOA’s liberal stance for its conduct, and I showed a better example of an HOA with a quite conservative (and racist) stance…and then ‘wondered’ if Rand Paul was an officer of that HOA.

    At which point Dave accused me of ‘repeating liberal lies’.

    Roger and Clavos, you both know the twists and turns these discussions take, and for a discussion to go in a direction wildly different from that of the original article is not only not unusual, but is closer to the norm. I do NOT have to ‘draw a connection to the subject of Dave’s article’ when the author himself claimed I was only ‘repeating lies’ in my offhand remark about Rand Paul.

    You’re both welcome for the reality check!

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I just thought you might want to do that, especially in terms of the similarities and differences between an HOA’s, on the one hand, and private business(es) on the other (bringing in Rand Paul’s stance in regards the latter to bear).

  • Clavos

    What “reality check?”

  • Clavos

    For that matter, whose “reality?”

  • Irene Wagner

    It’s a reality in which I’m a racist if I dry my laundry on a clothesline, Clavos.

    This is all very deja vu. I haven’t seen A-Goy-Named-Sue for awhile.

  • Ruvy

    The few Texans I know have taught me that Texas is a state of corruption worse than Israel. That’s saying a lot.

  • http://blogcritics.org/writers/dr-dreadful/ Dr Dreadful

    Dave’s article highlights the obvious – that homeowners’ associations are lower than toe fungus – but does raise interesting questions as to exactly how they get away with their nonsense. For example, the rule targeting Clements would be either ex post facto or a bill of attainder (possibly both), were it an actual law. Capt. Clauer’s tale of woe is an even more egregious constitutional violation.

    Unfortunately, since HOAs are private organizations, not governments, they’re exempt from all that.

    On an interesting side note, a commenter on Dave’s linked news piece on the Clements story got censored when he tried to include the word ‘shipping’ in his comment. Not the whole word was censored, mind you. Just the first three letters.

    And we think Akismet is overzealous…

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Re your penultimate paragraph, Dreadful, how did you manage to discerned that? Are you referring to Dave’s first-mentioned link?

  • http://blogcritics.org/writers/dr-dreadful/ Dr Dreadful

    Yes.

  • Les Slater

    Yes, Dave, agree. It does though show, even to you, the dual edge of property rights and private contract law.

  • RichFlocker

    re: “…new housing developments whose builders eventually finish their work and leave behind a covenant which property owners sign on to…”

    Not everyone “signs on” or are even given a copy before closing. More accurately, the developers create these “covenants” and the “governing documents” for the developer’s own benefit. This contaminates the land with a form of government that is not founded by/on the authority of the people (consumers) for their benefit. HOAs are conceived by the developer to control people with absolute power and typically partners with an HOA management company during the construction phase. Over several years, the consumers are screened and they appoint “homeowner board members” (rarely is there a valid “election” that would pass the state election codes) who are then brainwashed by these CAI-trained “managers” in to treat their neighbors and keep them under control. They treat people like prisoners in a Nazi Stalag, and utter the magic spell “you agreed to this when you bought your home” when they blacklist “dissidents” who object to these Gestapo tactics and unfair treatments (including denying any dissidents the right to run for a position on the board). After a well-chosen board is in place, the developer then “turns the neighborhood over to the homeowners” and this absolute power falls into the hands of as few as three individuals and the HOA manager+lawfirm that coaches these board members on maintaining the status quo. This circle of tyranny stays in power by carefully selecting their replacements and by controlling the “balloting process” thru processes written by the developer (such as by “nominating committees” made up of the incumbents and the HOA lawyer). HOAs are seldom controlled by more than 10 or 15% of the members- they use “proxies” to conduct business at “annual meetings” (often with no valid quorum). Many dissidents are denied the right to participate and disenfranchised to the process. “Community Associations Institute” members wrote Title 11 of the TX property code and they write most of the “deed restrictions” for the big developers who only build subdivisions infected with these regimes. The TX legislature needs to re-write Title 11 and eliminate the “automatic renewals” these conspirators wrote into the law and into the deed restrictions. Read the law, prop code 201 alludes to a democratic process requiring 75% of the owners to create or renew a HOA’s charter.

    The Solution ot this out-of-control nuisance that’s spreading like a plague: TX Legislature needs to revise 201 to apply to all “Mandatory contracts” – cause them all to dissolve after 10 years (Dec 31, 2011 = D-DAY) and only renew these governing powers if 75% of the owners agree to renewal of the regime via this process found in the genesis chapter of HOA law. Then repeat every 10 years. The law alludes to this, but is worded so that it does not apply to any of them! It’s an illusion, a deception by the CAI on purpose when they wrote the law. Voluntary HOAs are a blessing, but these Mandatory HOAs have become public enemy #1…the law needs to be revised to kill ‘em all and let the people choose to reincarnate this Fascist form of government only if 75% approve. What is the will of the people? ASK THE QUESTION: Do you want to live under this Mandatory HOA government? (YES or NO).
    HOAs are tyranny by a slim minority, not tyranny by the majority, put it to a vote and we’ll see the truth come out…all of them should be converted to voluntary status with no right to demand money or appear as a person before the law unless they earn that right with a 75% approval rating. They wrote the law, they enforce the law and mandatory HOA is the very definition of tyranny.

  • http://www.republicofdave.com Dave Nalle

    So tell me, Dave – how can one support the CRA at all if one believes that private businesses have a right to discriminate against others based on race, creed, color, et cetera? Does that or does that not violate the spirit of the entire Act?

    Glenn, libertarians have been answering this question for YEARS and it’s a sign of Paul’s inexperience that he was not ready with a reasonable answer right away.

    The nutshell answer is that like any legislation you support the whole bill even if there are provisions of it which you don’t necessarily agree with. In this case, Paul opposes discrimination in any form, but he also opposes the government telling people how to run their businesses. On balance the good the act does outweighs that shortcoming, so he would support the bill.

    And this was not an isolated answer. In an interview with the Lexington (KY) Courier last month, he said, “I think it’s a bad business to ever exclude anyone from your restaurant. But at the same time, I do believe in private ownership.”

    Glenn if a soul food restaurant refused to serve white people would this be something you would support legislation to prevent?

    Of course, Dave, of course Rand Paul’s no racist! Not a racist bone in his body!

    Sorry Glenn, this is just not about race no matter how much you want to make it be. This is a part of libertarian and Libertarian Party dogma going back almost 40 years, and there is no way you can argue that the Libertarian Party is racist.

    By the way – did you know about his first campaign spokesman Chris Hightower? You know, the one that resigned twelve hours after he made this MySpace entry that proclaimed “Happy Ni**er Day!”, complete with a picture of a lynched black man hanging from a tree?

    So hiring a racist makes you a racist now? Apparently guilt by association is one of the techniques in your witch hunt.

    Of course, that was Paul’s spokesman, and not Paul himself. Why should we ever think that Paul knew about his campaign spokesman’s racial views? Besides, I’m sure that the freshman politician Paul never even knew Mr. Hightower until a few days before before he hired him, right?

    No idea. I can probably find out how far back their relationship goes if you really want to know.

    It’s entirely possible that Rand Paul is a virulent racist. His dad is a Bircher, after all. But this particular incident and the statement he made provides zero actual evidence of his racial views. It’s just not about race at all.

    Dave

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Buy isn’t the case, Dave, that ideology, any ideology, when taken to extreme is just that – ideology. And that whatever the consequences, they’re discarded because, by the nature of the beast, they’re not intended, only an after-effect.

    So the point is, shouldn’t we be concerned with the result?

  • Trip

    Can we be forced to join a HOA? We built our lake house over 30 years ago.

  • http://thingsalongtheway.blogspot.com/ Cindy

    Trip,

    Who owns the lake(bed)? That is the question, I think. My home has optional membership, for example. It goes with optional use of the lake that borders my property. If we don’t pay, we are asked to remove any property we have on the lake (like a dock, etc) and not use it.

    Hope that helps.

  • anonymous

    Hi,

    Fort worth, Texas has meadowcreek south HOA. Their amendments are not approved by 2/3 majority of the home owners. Their associate- home management does not approve what the home owners need, if the home owner request approval to install anything in the homes. Please share your experience with the meadowcreeksouth HOA.

  • Dr. Freedom

    Hi Trip,

    You can not be forced to join HOA. Everyone in USA has freedom. Every home owner has the right to choose whether to join or not to join in HOA. This should be a legitimate meaning of freedom.

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