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.
Article comments
— go to most recent comments1 - STM
Coupla 12-gauge pellets into the gardenias might do the trick, Dave.
2 - 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.
3 - 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.
4 - 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.
5 - Dave Nalle
Yes, George. And that's the problem.
Dave
6 - 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?
7 - 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.
8 - 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...
9 - 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.
10 - roger nowosielski
Realist, Dave,
Isn't is the case, though, that you are free to either join or to opt out?
11 - 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.
12 - 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.
13 - 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.
14 - 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
15 - 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.
16 - 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.
17 - 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.
18 - 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
19 - John Wilson
Good point, Glenn. In fact, the best point of the whole discussion.
20 - 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?
21 - Clavos
@#20:
Good point, Roger. In fact, the best point of the whole discussion.
22 - 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!
23 - 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).
24 - Clavos
What "reality check?"
25 - Clavos
For that matter, whose "reality?"