A recent California opinion, Turner v. Vista Pointe Ridge HOA, Cal. App. 4th G040480, brought to light earlier court opinions where the court defended actions taken by HOA boards and equated homeowners associations with municipal governments. In both the cited cases we obtained important acknowledgements that HOA issues can be public issues, especially when dealing with board issues or elections since they affect all the member, that these are indeed political issues — having to do with the regulation and control of a people within a territory — within a sizeable community (size not defined), and that they are just like a local government. All the cases involved the use of anti-Slapp laws not by the homeowner, but by the HOA as a defense.
A SLAPP suit, to make it simple, is a suit brought about by a more powerful party against an individual to stop him from speaking out against it on issues of public concern. The defending party, which would usually be expected to be a homeowner in our area of concern, was the HOA that sought protection since its actions were a public issue.
The two cited cases, in which the court defended the HOA’s actions, involved defamation suits against statements made and/or published by the HOA or its attorney. In the first case (Damon v. Ocean Hills, 85 Cal.App.4th 468 (2000)), the court observed that the ant-SLAPP statute protected,
[A]ny written or oral statement or writing made in a place open to the public or in a public forum in connection with an issue of public interest . . . . The definition of public interest‟ within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity…. “[M]atters of public interest . . . include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.
The court added,
Furthermore, the statements pertained to political matters, inasmuch as they were made in the context of homeowners association board elections and recall campaigns. The court observed that “[t]he right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech….” For many Californians, the homeowners association functions as a second municipal government . . . .
In the second case, (Ruiz v. Harbor View Community Assn., 134 Cal.App.4th 1456 (2005)), also a victory for the HOA, the court held that a dispute involving the uneven handed enforcement of ACC rules was a public issue for the entire community. But, considering the nature of the complaint — the questions raised — filed by the homeowner in the recent Turner decision, the issue before the court did not involve a freedom of speech issue. It was just a number of complaints pertaining to breach of faith, contract violations, etc. On this narrow issue, the court denied the claim by the HOA that their actions were protected by the anti-SLAPP statute.
Note that the court’s opinion also recognized the fact that HOAs are indeed a form of political government within the municipality.
It is important for homeowners to realize that the court’s ascribing of public government status and functions to HOAs was qualified. The court was careful to say that “within the meaning of the anti-SLAPP statute“, thereby avoiding the larger issue of the whether or not the HOA was indeed a state actor. (I avoid use of “quasi-government” or “mini-government” since they skirt the arguments that HOAs are not legal because they are not chartered under the municipality laws, but under corporation laws). In other court cases in which the court held that HOAs were not mini-governments or quasi-governments, the courts simply declared them as such without hearing any evidence or argument. These cases did not seek a declaratory judgment as to the status of the HOA as a state actor. While several cases had made use of a statement that the HOAs were state actors as part of their main case, they cases did not directly address the issues of state actor.
Unfortunately, with respect to the recognition of bona fide governance, once again the benefit goes solely to the HOA private corporation without offsetting protections of the rights and freedoms of the individual as required by the Constitution.
For more information on American Political Governments, see political.