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).