HOAs against protected member speech on social media

In contrast to the authoritative evidence supporting free speech for HOA members criticizing their BODs, the Tinnelly Law firm blog states up front in big letters, “HOA LAWYER BLOG.”  As for the content, the following quote sums up the view of the Tinnellys.

“The lack of regulation on social media communications can cause neighborhood tensions and smear the reputation of a community, causing a negative effect on property values.  This has led many homeowners associations to develop protocols and guidelines with regard to social media. “

(Some research shows Tinnelly is solid CAI with the owners, Richard and Stephen Tinnelly as members, as well as Director Acosta and article attribution to lawyer Kim.)

Read the full 4-page paper at social media free speech

The writing is on the wall for HOA reforms

Although the Arizona Supreme Court has not yet decided to hear Tarter v. Bend (CV 21-0049), my 44 page Pro Se amicus curiae brief is a matter of public record, regardless.  The case about a defamation suit by the HOA president, also an attorney and a limited-purpose public figure, raised constitutional issues of public speech with respect to questions of HOA governance. 

Selected excerpts follow.

As with the issue in Dombey (Dombey v. Phoenix Newspapers, Inc) . . . failing to present the question of Tarter’s status as a possible public figure denied the jury from considering the issues of protected free speech on public issues.

Kosor (NV) was sued on the basis of his criticism  and distribution of a pamphlet and letter at a board meeting seeking a seat on the board of directors.

“Because we conclude that each of Kosor’s statements was “made in direct connection with an issue of public interest in a place open to the public or in a public forum,” we reverse the district court’s decision to the contrary and remand for further proceedings consistent with this opinion.”

The impetus behind this view can be laid to the heavy lobbying of state legislators, judges, the public and the media by the Community Associations Institute (CAI). From its 2016 white paper,

“Most legislators do not thoroughly understand common-interest communities or who their patchwork legislation is actually protecting. . . . Legislative responses to individual constituents contribute to community associations being perceived as over-restrictive micro-governments focused on covenant enforcement.”

In response to my Arizona Supreme Court pro se amicus brief in Gelb v. DFBLS (CV-10-0371-PR) CAI attorney Jason Smith wrote,

“It is clear from the that the amicus curiae [referring to me] simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.”

[I called to the Court’s attention a question of a SLAPP lawsuit against Brendt.]  The issue of an HOA SLAPP lawsuit against a member is in the interest of general public and of statewide importance, and also of national concern, the impact on community associations is certainly substantial. This Court should, sua sponte, consider Tarter’s legal action as a HOA politically motivated strategic lawsuit  against member participation.

I urge the Court to apply the long overdue correction  of  Plessy v. Ferguson by Brown v. Bd of Education to the long overdue and needed corrections to the unconstitutional HOA legal scheme.  As with Brown, America’s culture and environment has changed dramatically from 1964’s Homes Association Handbook and the formation in 1973 of Community Associations Institute (CAI) to deal with rising HOA problems and constitutional concerns after only 9 years. 

CAI’s early awareness of HOA constitutionality, public mini-government

It appears that CAI has adopted a “see no evil, hear no evil, speak no evil” attitude toward HOA constitutionality and public mini-government issues that are still prevalent today.  And it spread to the policy-makers.

Wayne S. Hyatt’s 1975 Emory Law Journal article, Condominium and Home Owners Associations:  Formation and Development, 2 years after the formation of CAI, presents his highly influential view on HOA constitutionality while recognizing that HOAs are mini-governments.

Wayne Hyatt “the most prominent advocate in CAI” serving as a 1975 “homeowners representative” and a former president (1978-79) (Privatopia, p. 219, 138 respectively). Hyatt  devoted his practice to working with developers of condominiums, master planned communities, resorts . . . to create community governance structures and community stewardship organizations.

While actively practicing law, he was also a member of 1) the American Law Institute (that wrote the pro-HOA Restatement of Servitudes, 2) the College of Community Association Lawyers (CAI affiliate) , the Community Associations Institute (CAI, created in 1973 by the National Association of Home Builders [grant of]  $30,000), and  3) ULI – the Urban Land Institute (sponsor of the 1964 “HOA bible,” The Homes Association Handbook) and served as a ULI Trustee.

He also served as an Advisor 1) to the Restatement of the Law (Third) Property: Servitudes, and 2)  to the Special Committees on a Uniform Condominium Act and a Uniform Planned Community Act of the National Conference of Commissioners on Uniform State Laws (Uniform Law Commission, UCIOA and UCA).  Hyatt received several awards from CAI.

Hyatt developed many of the Dell Webb’s master planned and resort/active adult association CC&Rs over the years.

His 1975 Emory Law Journal article gives readers a good idea of constitutionality and local government concerns that seemed to have evaporated over the years as CAI’s influence increased dramatically.  A few important excerpts:

  • “The California Code provides for an association and affords it the powers and duties of the mini-government.” {T]he [Georgia] legislature has in effect provided a large measure of home rule for what is in essence a category of small municipalities, and each has established a system of officers and directors in the nature of a mayor and council to oversee the exercise of this rule.” (At 988). 
  • “‘Has the state permitted, even by inaction, a private party to exercise such power over matters of a high public interest that to render meaningful’ constitutional rights, private action must be public?”(Footnote 33 at 983). [In simple terms, private government HOAs must be subject to local government protections].
  • “The Declaration is not a contract but, as a covenant running with the land, is effectively a constitution establishing a regime to govern property held and enjoyed in common.  It further sets forth procedures to administer, operate, and maintain the property. . . . the declaration and particularly the by-laws create not only a corporate structure but also a governmental authority that requires and deserves competent, experienced persons . . .” (at 990).
  • “The power of ‘levy’ is a distinctive characteristic of the association and removes it from a mere voluntary neighborhood group. . . . The imposition of penalties, whether fines . . . or a denial of use of facilities enforced by injunction, certainly represents quasi-judicial power to affect an individual’s property rights. . . . The possession and exercise of such power has substantial consequences with clear constitutional implications.  The courts have not yet considered a direct constitutional challenge to an association’s action.” (at 983).
  • “[T]he constitutional issue is most acute in rule enforcement; however the association’s established procedures, declaration, and by-laws should insure compliance with at least rudimentary constitutional principles, and there must be a procedure to protect members’ rights.” (at 984).

Nowhere will you find any equivalent discussion of HOA constitutionality, or HOAs as mini-governments or as a form of local public government. Not in its Manifesto, Community Next 2020 and Beyond (2016);  not in its Public Policies: Private Property Protection, Government regulation of Community Associations, and Rights and Responsibilities For Better Communities (July 15, 2021).

And not in any of its anti-constitution amicus briefs: Twin Rivers NJ appellate (2004), Dublirer NJ Supreme Court (2011);  Surowiecki, WA Supreme Court (2021) (business judgment rule overrides judicial review); Turtle Rock AZ appellate (2017); Foreshee WI appellate (2017).

Who’s in charge of the larger HOA? The BOD or CAI?

Over the years I’ve come to believe that the CAI member HOA attorney are really in charge and run HOAs, especially the larger ones where the money really is.  Its influence runs the gamut from its CAI School of HOA Governance,[1] to pervasive lobbying state legislatures, and its CAI Manifesto.[2] The manifesto is its “white paper,” 2020 and beyond, in which it advises its followers to influence state legislators and the courts.

QUOTE Most legislators do not thoroughly understand common-interest communities or who their patchwork legislation is actually protecting. Legislators too often shoot from the hip, passing laws that ricochet and cause collateral damage. And they will continue to do so in the future unless the CIC interests undertake vigorous lobbying and education programs and awareness campaigns to enhance their understanding.“[p. 7][emphasis added]. UNQUOTE

In 2016 CAI published its survey[3] of large-scale associations (LSA) that revealed some insights into the strength and dominance CAI attorneys who are involved with the policies and operations of LSA HOAs. CAI  defines these associations as having more than 1,000 lots with an operating budget  of $2,000,000 or more, and that “provide municipal type services.

QUOTECAI’s Large-Scale Managers (LSM) Committee . . . provides input on education curriculum, best practices, public policies related to management or operations of large-scale community associations, or identifying what is of value to the large-scale manager membership” [p. 2]. UNQUOTE

By “municipal type services,” CAI explains,

QUOTE “Many municipal governments viewed this new community housing concept as a means to transfer various public works and recreational responsibilities to a third party, which possessed the ability to assess property owners for the administration of these varied services.” UNQUOTE

The facts revealed

You may ask, so what has CAI really done or is this mere words? Based on CAI’s own data in the 2016 LSA survey, with only 94 respondents, readers can see the extent of CAI’s presence in these large scale HOAs — these master planned communities and these active-adult and retirement communities.  Reworking the data, the study revealed that 83.5% use an HOA attorney, which is not surprising for HOAs that can have as many as 9,000 homes or more and revenues that can reach upwards to $20,000,000.

Also not so surprising is that 92.5% of the HOA’s top leaders – president, CAM/COO — are CAI members in a strong case for conflict of interests.  As for senior staff, 64.9% are CAI members, and just 44.7% are on the BOD.  Understand that an HOA can have one or all three categories at the same time.

Consequences

I ask again, who runs the HOA, and where does the BOD’s advice come from if not from the teachings of the CAI School of HOA Governance? I suspect that the smaller the HOA the lower the percentages using an attorney or having CAI member HOA officials. The money isn’t there! 

This translates into follow the money that focuses legislators, the media, the political scientists, and the constitutional law think tanks on the LSA HOAs, treating the smaller HOAs as local nuisances. This is one good reason for failures in obtaining meaningful HOA reforms and even daily operational reforms.

References


[1] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[2]  Community Next: 2020 and Beyond (May 5, 2016).

[3] Large Scale Associations CAI study, 2016.

State legislatures must be held accountable for dereliction of duty

While U.S. Attorney General Merrick Garland announced a DOJ investigation into the Minneapolis police department, the AG must also start a sweeping investigation into the dereliction of duty by state legislatures in their unconstitutional support, promotion and encouragement of homeowner association legislation.  

(See Legislative dereliction of duty: supporting HOAs). 

Legislation, which affects some 23% of all Americans living in an HOA, that permits contractual, authoritarian private governments  (HOAs or community associations) not accountable to the US Constitution.

The DOJ must also investigate the role and extent of the influence on state legislatures by the national, self-proclaimed expert in HOA law, the Community Associations Institute (CAI) and its affiliate, The Foundation for Community Association Research.  The DOJ must examine the extent of the teachings of the CAI School of HOA Governance has had in creating longtime conditioning and indoctrination of legislators, the media, and the public.  

“CAI School” is a term that I use to describe the collection of all CAI statements, publications and including seminars, programs, classes, etc. that constitute the CAI Manifesto.

State legislatures must be held accountable for any undue influence by pro-HOA special interests.  CAI must be held accountable for the content of its pro-HOA advocacy.