HOA Common Sense, No. 6: Fair and just hearings

Fair and just hearings, No. 6

What is meant by “fair and just hearings”?  The HOA attorneys tell you it’s “after notice and an opportunity to be heard” as found in almost all CC&Rs and in the vast majority of state HOA laws. This simple statement is a contractual provision and law as applied to HOAs, but it is not what the US Supreme Court holds as procedures meeting the Constitution’s and the 14th Amendment’s due process requirements.  HOA members have been shortchanged!

As a private entity, HOAs are not subject to the Constitution and are not required to establish justice, which is a goal not found in any CC&Rs ‘constitution,’ but found in the Preamble to the US Constitution. Was this important fact explained to you when you bought into an HOA with its dream home?  Why not?

US Appeals Court Judge Henry Friendly in his well-regarded article, “Some Kind of Hearing,” generated a list that remains highly influential, as to both content and relative priority:[i]

1. unbiased tribunal [independent ‘judges’]

2. notice of proposed action and grounds asserted for it [document showing all the rules]

3. opportunity to present reasons why should not occur [defense of allegations]

4. right to call witnesses

5. right to know opposing evidence

6. right to have decision based exclusively on evidence presented

7. right to counsel [especially if HOA attorney is present]

8. making of record

9. availability of statement of reasons [public awareness of defense]

10. public attendance [transparency]

11. judicial review [appeal to civil court]


I’ve inserted annotations as applicable to the HOA version of justice.  As you can see, members are being shortchanged by HOA attorney/lobbyists who influence and dominate state legislatures, and who write and rewrite the CC&Rs and bylaws.  HOA kangaroo courts make homeowners second class citizens, and their foolish appeals to their HOA attorney go nowhere, because no one told you that he represents the board, not the members.  You know, like management vs. employees.

And since there is no legal obligation of the HOA to establish justice, providing for some form of public defender equivalent falls on deaf ears.  The HOA wins in this lopsided “playing field” since it has the money to hire attorneys to legally maneuver the system to make it costly for the homeowner to complain.  And don’t forget the public ostracizing of members who complain: they are costing you money; they are not good neighbors. Don’t forget that there’s no opportunity for the homeowner to answer in the same media as used by the HOA – the newsletter, board meetings and website.

Yet, government interference to protect your rights as citizens is violently frowned upon by HOA members.  Why?  It doesn’t make sense, doing nothing about your loss of protections.  For what?

[i] Henry J. Friendly, “Some Kind of Hearing,” 123 U. PA. L. REV. 1267 (1975).

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6 CommentsLeave a comment

  1. […] HOA Common Sense, No. 6: Fair and just hearings […]

  2. […] HOA Common Sense, No. 6: Fair and just hearings […]

  3. This is all so true! My husband is standing up against the HOA in our neighborhood. He is a true gentleman and cares for the people in our neighborhood. He has been bashed over and over! I can’t take it anymore! The majority of people are old and to tired to really care. Our HOA knows this. They have told us they can trespass, take photos, and pretty much break the law! They use the attorney every chance. Refuse to discuss matters with members. We are trying to throw the board out, and they are using the attorney to run the meeting!!!

  4. its the head of the bird in the ground owener { i can not see}{ i can not hear} all i hear and see is my boat and my golf .fact thats what those home owners tell you. in the first five years there is a fourty % turneover in ten years there is a eighty % turnovert. devlp. hoa love it.

  5. Thanks for posting this valuable information. Homeowners have NO rights once they elect their board of directors. People have no idea that if they elect the “wrong” people into office, the only method to remove them is through an expensive “recall” with a large percent of homeowners required to sign a petition first. HOA is going to be the demise of the USA.

  6. The homeowner in dispute with an HOA has about the same chance of survival as the bird that strikes the engine of a Boeing 757!

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