ROYDEN/HOA’S SUPPRESS FIRST AMENDMENT RIGHTS
As was experienced first hand, with a recent Royden HOA dispute, D&O attorneys and NC law, squelch homeowners rights to due process, under the law and complaining homeowners basically have “no standing”, in a court of law, as the following article painfully reveals. By Deborah Goonancle.
First Amendment rights also apply to HOAs, but you may have to defend those rights in court (and lose a fortune trying!)
In recent months, several homeowners have scored court victories asserting their first amendment rights, which were violated by their HOAs. But, these are very unusual situations
If you have ever lived in an HOA, you probably realize that sometimes the Board tends to go overboard with enforcement of rules. If you’ve never lived in an HOA, you may be wondering, “How is it that HOAs would think they could deny freedom of speech or religion?”
Remember, as I explained in a previous article, HOAs are typically created as corporations, despite the fact that they function as local governments, albeit with limited purposes. Because they are corporations, the HOA industry, led by trade group Community Associations Institute (CAI), has maintained for nearly 5 decades that the relationship between homeowners and their Association is contractual. The industry argues that HOA Boards and the managers they hire are not considered “state actors” working for the local or state government, but rather volunteers managing the HOA Corporation like a business. Therefore, CAI’s argument has been that Constitutional protections guaranteed by the 14th amendment – including our Bill of Rights – need not apply, because the owners “agree” to the terms of the restrictive covenants by the mere act of taking title to a home within the boundaries of the HOA.
A little known fact: at the time an HOA is originally created, no state or federal government agency reads, reviews, or approves the restrictive covenants. The problem is, some of those restrictive covenants and the Board-enacted rules based upon them can be unreasonable, ridiculous, or even unconstitutional.
That means it becomes the homeowner’s problem when the HOA Board oversteps its authority, either by enforcing restrictions and rules that are invalid, or grossly misinterpreting the HOA governing documents or statutes. The only way to challenge the HOA is to file a civil suit, and that can drag on for years and rack up a legal bill of 5- or 6-figures.
For most homeowners, going to court is cost-prohibitive. The HOA knows that, and counts on the owner dropping the issue by either complying or moving elsewhere. But a brave few owners with deep pockets, pro bono assistance or self-representation do stand firm and defend their rights.