Posts Tagged ‘Science Fiction’

State of Lincoln Finds HOA Cops Don’t Create Police State

February 4, 2013

 

In an interesting development from LaSalle County, Illinois, the state Supreme Court has upheld the right of a private, covenant-based police force to detain and ticket speeders.  Is it shades of Snow Crash, or perhaps just a recognition that a multi-thousand-acre community needs to be able to keep the peace?

What I found interesting was that the policing was based almost entirely on some fairly vague provisions in the articles of incorporation:

“To promote and enhance the civic and social interests of the
owners of real estate in Lake Holiday Development, LaSalle
County, Illinois; insofar as those interests relate to the
maintenance of Lake Holiday, the dam constructed at the
headwaters thereof, and appurtenant structures thereto. To
acquire and hold real estate in its corporate name; to construct
and maintain thereon buildings and structures of all types,
roadways, beaches; and, to do all other things reasonably
necessary therefor; memberships herein shall be restricted to
owners of land in Lake Holiday Development ***.”

Based on this broad power, the Association had adopted more specific (barely) Bylaws empowering the Board to adopt and enforce rules and regulations:

The Board of Directors shall adopt such rules and
regulations relating to the use of association property as they
may deem reasonably necessary for the best interests of the
association and its members. They may also in order to better
effectuate said rules and regulations, adopt reasonable
sanctions for non-compliance therewith. *** The Board of
Directors shall also employ a sufficient number of persons to
adequately maintain association property.

To me, the analysis should be whether the rules and regulations adopted by the Board were outside the scope of powers permitted by the CC&Rs.  However, the Court of Appeals focused on questions of private policing powers only, so the Supreme Court used that analysis as well, holding that “courts generally will not interfere with the internal affairs of a voluntary association absent mistake, fraud, collusion or arbitrariness.”  An HOA evenhandedly enforcing its rules, obviously, is not mistaken, fraudulent, collusive or arbitrary.

I’m not sure if the courts here in Idaho would follow the same analysis.

-Jeremy O. Evans

 

Sources:

http://www.appellatestrategist.com/uploads/file/113907.pdf

http://www.jdsupra.com/legalnews/illinois-supreme-court-holds-private-sec-76668/

http://www.securitymanagement.com/news/court-rules-homeowner%E2%80%99s-association-can-enforce-rules-using-private-security-0011912

Imagining HOAs’ Future

August 7, 2012

A while back, I enjoyed author Neal Stephenson’s imagining of a United States where neighborhoods exercised virtual national sovereignty, with extreme border security and visa requirements restricting even the movements of a high-speed katana-wielding pizza deliveryman.  While this would certainly be an unexpected evolution of today’s covenant-based associations, there has been some evolution of HOAs over the years.  I sometimes wonder how HOAs will evolve in the near future.

First, I think we can all agree that homeowner associations are inherently conservative organizations.  They are based on covenants conditions and restrictions that are recorded on real property and that often remain unchanged for decades.  Usually CC&Rs can only be amended by a supermajority of the owners: an action that takes coordination, participation, and consensus.

It is no surprise then,  that HOAs are not weather vanes of social change.  Instead, we see conservative covenants challenged by owners with particular agendas, be they environmental responsibility, political activism, or the like.  Those who challenge covenants no doubt see precedent set in federal legislation that has retroactively outlawed covenants creating racially segregated housing communities, age-specific restrictions (except in retirement communities) and other fair housing issues, in addition to less-obvious federal rules regarding satellite dishes.

It would be interesting to see if HOAs could play a leading role in even more politically-charged social areas.  For instance:

  • Could an HOA ban undocumented residents?
  • Could an HOA ban guns of any kind?
  • Could an HOA require smart meters, solar panels, or laundry lines?
  • Could an HOA dive into the marriage debate?

Of course, we always advise our clients to avoid issues that might lead to litigation.  But that doesn’t mean attorneys can’t enjoy imagining legal problems yet to arise.

Update: These Colorado HOA attorneys just blogged about another social topic:  smoking bans.