subtle HOA restrictions on fair elections

In Arizona I discovered a large, active-adult HOA that I first thought was quite liberal and emancipated but in reality turned out to be just a benevolent dictatorship. That’s about as good as it can get! Basically, a benevolent dictatorship gives the appearance of serving the members’ best interests by playing on their wishes, desires and, most of all, fears. But the essential structure of the governing documents and state laws create and support a legal dictatorship. Harsh actions and statements are avoided.

As an example, in regard to fair elections, I came across its application for board membership that outlines the duties, responsibilities and attitudes of directors. In short, the BOD through an election committee controls candidate campaigning and what the candidate may or may not say. In the public domain this would be considered outrageous and undemocratic.

Here are a few conditions:

The Campaign and Election Policies have been carefully developed to provide a fair and clean process for candidates and all members. It is expected that candidates . . . will act with the utmost integrity and respect toward all candidates. It is also expected everyone will focus on issues and refrain from negative criticism of any other candidate or group. [This is political correctness and an unconstitutional restraint on political free speech.]

IN THE SPIRIT OF FAIRNESS: [Say what?]

 ALLOWED [my emphasis]

  • Submitting to and awaiting approval by the Election Team before distributing campaign flyers. . . Unapproved campaign flyers will be confiscated and destroyed by the Election Team. [It’s an unconstitutional restraint on political free speech].
  • Placing approved campaign flyers ONLY on designated tables next to the election poster boards in approved locations
  • Attending any . . . community group gatherings . . during the group’s informal assembly time only. [Should be a decision by the groups chair or president].
  • Distribution of personal correspondence through the US Postal Service at candidate’s own cost is allowed after approval by the Election Team. [It’s an unconstitutional restraint on political free speech].

NOT ALLOWED  [All would not pass public fair elections procedures].

  • Using email listings, electronic or websites [of any HOA organization] Addressing a formal . . . Community Group; Participating in formal Q&A sessions and programs other than those sponsored by the Election Team.
  • Using Association facilities for campaign events for individual candidates.
  • Using advertising of any type (other than approved campaign flyer and/or approved personal correspondence).
  • Distributing campaign flyers in common areas except as noted.

There are several court cases upholding HOA political free speech. See Protecting HOA political free speech on matters of general community interest (2000 -2010); Court Decisions May Make it Harder for Condominium Associations to Restrict Free Speech Rights of Owners (2012).

Are there vibrant, competent, harmonious HOAs?

Community Associations Institute (CAI), is a national trade organization that claims it is dedicated to fostering vibrant, competent, harmonious community associations. I am well aware of HOAs that do not have any signs of abuse or rogue boards, and the members seem not to have any serious complaints.  The ‘happiness’ level is high.  In my view this can occur on a case by case basis where the board can be described as a benevolent dictatorship governing the HOA with reason and common sense.

However, this condition would also require a certain caliber of members who fully understand that they did not buy a residential home, but a home in a resort with the reasonable expectation of resort amenities and rules. As long as the board is benevolent and non-intrusive, the members are quite content with the conduct of their private government.

But, this is a special case where the HOA legal structure is not really needed, yet has been adopted for convenience. For example, time share resorts also have a homeowners association and the resort category of HOAs can be seen as “full year” timeshares. (The other categories are retirement HOAs with their expected rules and regulations — where active adult communities are more of a resort HOA — and residential HOAs with unreasonable expectations of authority).

The criteria for determining whether the HOA is a residential or resort HOA would depend on the eyes of the beholder, the homebuyer.  And that would depend, in part, on the advertising, catalogues, brochures, and statements by the developer, the HOA and the real estate agent as to the nature of the subdivision. Subdivisions are not classified in this manner except for saying they may have amenities.

I am also well aware of the many resort type HOAs that are not benevolent dictatorships.

In my long 14 years as a homeowner rights advocate (please see http://pvtgov.org/pvtgov/bio-hoa.pdf) I do not believe CAI has contributed to solving the 40 years of HOA problems, and thereby helping to create “vibrant, competent, harmonious community associations.