The unclean hands of the HOA

I have spoken of the unclean hands of the HOA in “HOA Common Sense No.4, Consent to be governed” and in “No.8, Draconian punishment and intimidation.”  Unclean hands is a legal doctrine that denies a plaintiff’s (HOA) complaint if the plaintiff has done anything wrongful or unfair relating to the issue at hand. If a defendant (homeowner) can show the plaintiff had “unclean hands,” the plaintiff’s complaint will be dismissed or the plaintiff will be denied judgment.

In his dissenting opinion in Olmstead v US  (1928)[1] Justice Brandeis wrote (my emphasis),

The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. The maxim of unclean hands comes from courts of equity. But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the government is the actor, the reasons for applying it are even more persuasive.

The court’s aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. Then aid is denied despite the defendant’s wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination.

This doctrine also applies to the government at all levels.  As Brandeis continued in his dissent,

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

And it also applies to HOA private governments, because it’s an equitable protection.  We all know that HOA boards have, in all too many instances, grossly dirty unclean hands.  We see the anarchy with 50 different state laws and the 324,000, more or less, independent CC&Rs “constitutions.”



[1] Olmstead v. U.S., 277 U.S. 438 (1928).  This case involved federal wiretapping, which back in 1928, the SC found no violation of the Constitution.


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5 CommentsLeave a comment

  1. Just maybe, thee old methods of justice would put an end to this craziness. Push homeowners to the edge and some may act out in ways that Boards would regret. I value my freedom too much but I am sure that some individuals would not be that rational.

  2. I am convinced that the legislature must enforce more oversight concerning boards. Potential Board members charm and manipulate themselves onto the Board and then reveal their true sociopathic need for power and control. That are often unconcerned with the community at large and the creation of a true sense of community. More like jailers and wardens who selectively enforce the rules. Pure communism in a socialistic setting. Not always but way to often.

  3. I have another thought for what it’s worth. What about attorneys, realtors, title companies or others involved in a RE transaction being required to sit down with a buyer to cover and itemize ALL CC&Rs and ByLaws thoroughly with initials and signatures. How about the RE industry or the HOA BOARD being required to list out what CC&Rs are enforced and what aren’t? How about the Board having to disclose friction within a community? Surely every HO is not a loon. In the short term the results would not be clear … Longer term we might see some results as buyers get thoroughly nervous about having to comply with nonsense. I actually expect many would walk away from the sale. It should also be disclosed that HOs don’t carry any weight in a court of law and that the HOA is likely to walk away with an undeserved prize of “they won”.

    At the least EVERY buyer should pay and consult with an attorney who will fairly represent what they’ve experienced with HOAs.

  4. Contrary to the commonly misplaced association folklore, “…the board is not required to enforce the CC&Rs, it’s discretionary,” perhaps reading Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003) would dissuade any of the far too many uninformed boards of directors, managers and, not infrequently, their lawyers, that enforcement is not discretionary when the association’s governing documents place an affirmative obligation or prohibition on owners/members, the association must enforce its governing documents as written.

  5. I know only too well how corrupt HOA boards are. I’ve been fighting mine for 1.5 yrs, spent over $8k only to learn that if I go to court there’s a very good chance I will lose. My HOA board enforces the CC&Rs as they wish. We have a Treasurer who is not a HO … But who cares what the ByLaws say. I learned that the board is not required to enforce the CC&Rs, it’s discretionary. So a former Architectural chair paints his house a color outside the choices available, and HE doesn’t have to repaint. “I” can sue him to comply, the HOA doesn’t have to enforce the compliance and won’t since the HO Is buddies with the Pres. for every infringement, for any HO who is non-compliant, a neighbor in the HOA needs to force it, and if the Judge gets any inkling of an idea that this is a sort of revenge thing, he’ll stick with the Board … And oh yeah, the Board and the HO will make it look revengeful. So how does a HO win? It’s a rigged game. I’ve made a business decision and will give up the fight. $8k is enough to lose and I’ve gotten no where.

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