Rejecting unjust HOA legal precedent

I have argued that most of the court decisions relating to HOA issues have been “bad law”, because the laws being upheld are, indeed, pro-HOA laws, and that the current public policy influencing the judges[i] also reflects this “HOAs are the next best thing to Mom’s apple pie.”  The recent overruling of a precedent in Citizens United by the US Supreme Court explicitly acknowledges that  “[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision.[ii]


 My purpose here is to understand the ease with which precedent can be rejected, and the rationale provided for overruling precedent. The specifics of the issue at hand are not relevant to this understanding.  The rationale for overruling precedent is given in Citizens United as,

Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned. We have also examined whether “experience has pointed up the precedent’s shortcomings.”

Austin [the precedent in question] is undermined by experience since its announcement.

Some examples of not “well reasoned”, or “bad law”, can be found in Inwood v. Harris[iii] in which the Texas Supreme Court held that equitable servitude laws pertaining to the timing of the filing of CC&Rs superseded the Texas Constitution. The constitution contained explicit protection of homesteads under its homestead exemption provisions.  The NJ Supreme Court, in the Twin Rivers[iv] free speech case, also upheld equitable servitude laws and private contracts as superior to First Amendment rights.[v]  Additionally, at the superior court level, there’s the decision on the unconstitutionality of an Arizona statute that provided for independent tribunal adjudications of HOA disputes.[vi] The judge ignored the deficiencies of the HOA’s “due process” procedures under the HOA’s “after an opportunity to be heard” covenant.

And finally, in general, there is the failure to apply the “antiquity of the precedent” justification to the 1946 Marsh v. Alabama holding of a company town, “public functions” test for state actors.[vii]  The precedent value of this decision is still retained when, after 64 years,  “experience has pointed up the precedent’s shortcomings.”

[i] See in general, HOAs, justice, and judicial myth and precedent.

[ii] CITIZENS UNITED v. FEDERAL ELECTION COMM’N , 08-205, Jan. 21, 2010 at 47. (“Stare decisis” is the legal doctrine of precedent under which the court must follow earlier judicial decisions, otherwise the whole legitimacy of “rule by law” and not by man — and the moral authority of the courts —  would be undermined. The earlier decided case serves as the “precedent” for later decisions on similar issues.)

[iii] Inwood v. Harris, 736 S.W.2d 632 (Tex. 1987) (homestead; covenants running with the land).

[iv] Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 929 A.2d 1060 (N.J. 2007).

[v] See critique of this opinion: The Twin Rivers Case: Of Homeowners Associations, Free Speech Rights and Privatized Mini-Governments, Paula A. Franzese and Steven Siegel, 5 RUTGERS J.L. & PUB. POL’Y 630 (2008).  Part of the issue on Homeowner Associations: Problems and Solutions.

[vi] See  The State of Arizona will not protect buyers of HOA homes! on HOA Private Government website for a detailed account of this disgraceful default decision.

[vii] Marsh V. Alabama, 326 US 501 (1946) (company town and public functions) .

Published in: on March 5, 2010 at 2:28 pm  Leave a Comment  

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