Consensus Facit Legem

By Wardsmith

Are HOA’s a good metaphor for government? In the much-commented OP by Dr. Hanley, interlocutor M.A. brought up Home Owner Associations (HOA’s), most specifically as a foil against the concept that Libertarians (being pro-liberty after all) should be strongly against them. This led to much back and forth on numerous levels and sub-threads concerning HOA’s. I was hoping against hope that someone else would take the bait and write up an OP, but such was not to be, so I’ll do a mediocre job instead of waiting for a better author to do a better treatment. Such is the bane of blogging.

I had never really concerned myself with HOA’s although I currently own two properties that are under their aegis. One is my primary residence, a McMansion that is far too big for my tastes but boasts a spectacular view of hundreds of untrammeled acres of woods and trails directly adjacent to my property line. The house has some excellent architectural features and since I have organized my life to work from home, the better the home the happier I am. The HOA Covenants, Conditions and Restrictions (CC&R’s) run about 50 pages or so and mention such things as not having recreational vehicles on the property in public view for more than 48hrs. Since I own a motorhome this is a bit of a nuisance but I have friends who let me park it at their mini-farm a few miles away and only bring it to my house for the typically once a year trip I’ll take in it, one day getting packed before I go and one day unpacking and cleaning when I get back, then it’s off to the farm for storage. One time I had decided to do some work to the motorhome and upon careful reading of the CC&R’s figured out it could not be “in one spot” for more than 48 hours. So I parked it in one of my driveways for 2 days, then moved it to the other for another couple of days while I futzed around with add-ons that I wanted to install. My next door neighbor came over to complain and I showed him the CC&R’s and pointed out that it had indeed moved within the 48 hours. He didn’t like my interpretation, but was even more chagrined when I pointed out that his jet skis in plain view in his driveway were an egregious violation of the same restrictions. He left in a huff. We had several more disagreements over the first couple of years I lived here and then he moved. His neighbor on the other side immediately invited my wife and me over for a party. Turned out no one else in my entire neighborhood had ever stood up to him, he was the neighborhood nazi (there, Godwin’d myself) and was notorious for bothering people. Since the vast majority of folks just want to live and let live, they typically acquiesced to whatever his demands of the moment were. In hindsight, every time he brought something up to me that I was supposedly doing wrong (and I admit the RV thing was a bit obnoxious, but it was a one-time deal and he knew it) I would point out something /he/ was doing wrong, and his violation was typically worse than mine. I further suspect that none of the other neighbors read the CC&R’s as assiduously as I had – even the trial lawyer up the street admitted to me that he’d only ever skimmed them (after all, no one was paying him $650/hr to study  it).

The condo we own has much shorter CC&R’s but they are a bigger deal because of the maintenance and reserves issues. Having a condo HOA makes perfect sense because so much of it (like the roof and hallways) is common to all the owners. We specifically shied away from a condo with hot tubs and similar amenities, because over time those are pain in the tookus (I guess in Yiddish that’s spelled tuchus).  A recent and major problem with condominiums is that the reserves set aside are woefully inadequate to address coming needs. Naturally the FHA regulations created an overreach and now for instance the condo we own charges enough in monthly fees to completely REPLACE the entire building within 15 years. I don’t think the brand new building is going to be replaced, nor is that replacement of real benefit to the individual unit owners, but it is the law of the land essentially because most entry-level home buyers cannot afford a house but /should/ be able to afford a condo and will require FHA backing to get a loan. That the new FHA regulations have crushed the market for condos during a real estate downturn is old news.

Since my personal experience with HOA’s is necessarily limited I did a bit of Googling and found a number of horror stories. The best (at pointing out the worst) of the bunch seemed to be this site:

“20 percent of homeowners reside within an HOA, an estimated 50 million Americans. In 1970 there were only 10,000 HOAs. Now there are around 300,000, with 9,000 to 11,000 new HOAs forming every year.

Living in an HOA development is like being under a very socialist form of government. HOAs create regulations most people would think violate property rights, such as restricting political signs, pets, or home businesses, but since homeowners have agreed to join the HOA, they have no recourse. About the only areas HOAs cannot interfere with are state and federal fair housing laws regarding age (except for senior living facilities), race and handicapped access. By joining an HOA, homeowners are essentially signing away their constitutional rights and many other legal rights. CC&Rs carry more weight than the U.S. Constitution. The HOA has powers beyond that of local, state and federal government. This becomes even more unfair when the HOA makes new regulations or interprets existing ones that homeowners never agreed to when the home was purchased. HOAs make up rules as they go. Many are arbitrary, petty or personal.”

The funny thing to me about the article (yes, it must be a right-wing site because the masthead says, ‘RightWing News’) is that the author calls the HOA’s socialist and the first commenter agrees that they are fascist. Which brings me to my second Godwin reference already? Reading up on HOA’s makes it sound like I was tremendously lucky in that mine is so “nice”. I do agree with a lot of commenters who state that if you don’t like your HOA, you have to get personally involved.

It just so happens that my wife does the accounting/bookkeeping for an HOA, which started out as a favor to a realtor friend who had purchased a unit there to move her mother into (and as an investment). The condo HOA had been mis-managed for quite some time, and had squandered their entire reserves account. Of course once my wife got involved, she quickly discovered things like the management company also owned the maintenance company, so not only were they over-charging for (mis)management, they were also overcharging on maintenance. That news was enough to get the management Co fired, but several years later, after the loud and acrimonious association meeting attended by all 45 owners, not one person has so much as stepped up to help out. The realtor was voted in as a VP at the meeting, the president resigned a couple of months later because he felt the position should be paid or at least allow for a waiver of HOA fees (virtually 100% of HOA’s are strictly voluntary unpaid positions). Three years later, the realtor is still the “acting” president of the HOA even though she doesn’t actually live there. Not one person has stepped forward to take on the presidency let alone the other roles; it is largely a thankless task. Just signing checks was taking her days every month, although my wife has alleviated that somewhat by contacting the vendors and arranging for online payment wherever possible.

Now let’s delve into the macroscopic government from the microcosm of Home Owner Associations. One of my favorite “TV Historians” right now is Niall Ferguson, author of Civilization – The West and the Rest. A recent episode specifically Chapter 3 does an excellent job of introducing us to another microcosm of North America’s nascent democratic underpinnings. It is no accident that they are related, the ownership of land (property) and the opportunity to be involved in governance (representation). With our 20-20 hindsight we can imagine that it was self-evident that we would end up with a representative democracy based on Hobbes and Locke principles. Because people are inherently bad and nature is mean, we need strong government, while Locke believed we were an empty slate and could be formed into a congenial package with the right environmental impetus. We ended up with a hybrid of both philosophies. But as Niall points out, from the perspective of the players in the game at the time, people were willing to indenture themselves (essentially selling themselves into slavery) for the opportunity to build their own life, earn their freedom and perhaps achieve some measure of wealth in the process. “The Fundamental Constitutions of Carolina” had at its core the principle of Property. You were not a citizen with all of its rights and responsibilities unless/until you were a property holder. Prior to the New World and the experiments in marketing which ship owners used to inveigle citizens to take treacherous voyages and endure unknown and dangerous hardships – the very concept of John Q. Public actually owning land was entirely foreign. You had to be a member of the First or Second Estates to own land, everyone else were serfs in a feudal system. We have 400 years of experience of owning property as a society, it is part of our collective DNA now, but it was not always so. Owning property gives one a stake in how things are managed, almost by definition. When aristocrats wrangled (and they always wrangled) it was invariably about property, who owned it and who could take it over with their superior armies. Things had to change once individuals got to own that property (for a change).

There is a saying that “all politics is local”. This never becomes truer than at the level of an HOA. The legitimate purpose of a government, which hopefully will be expanded in the comments, circles around the management, security and exploitation of property. Past the purpose of government we start getting into the squishy wicket of aims and ambitions. To a Libertarian like me, governments shouldn’t be concerned with aims, and ambitions is what killed off a goodly number of aristocrats and their people.

I’ve quoted from a negative link about HOA’s and so in the interest of fairness I want to quote from a more positive one. “This issue is not any different than the national debate about taxes going on today across America. The answer for the taxpayer is to participate; vote and call your elected representatives with your concerns. If you are a homeowner in an HOA, attend meetings and voice your opinion. If you are a renter in an HOA, call your landlord who is your representative to the HOA. We’ve got a great thing going with the way we are structured from the federal government all the way down to the HOA. If you want to change the country, your state, city or just your HOA you have to participate. More importantly you must participate in a manner that produces results, not more chaos. Let your voice be heard the right way.”

We live under a representative form of government which is ostensibly a democracy. In point of fact the representation element does a lot to quash the democracy component. As I’d said in a comment in a different OP we can all elect a bus driver, but once we’re stuck on that bus we don’t really have any say about where it goes or how it gets there until the next time there’s a new bus driver election. Our bus drivers know this. So to bring everything full circle and really confuse the three people still reading this, I want to quote from that never-quoted author of legal thrillers Steve Martini. From Double Tap near the end of the book, a line that was so on target that I saved it just for such an occasion as an opinion piece that I never intended to write.

“My eyes are on Nathan in front of the camera as she talks. He is the perfect politician; glib, superficial, manipulative. He has a grand sense of self and a natural talent for a profession for which lying is usually listed at the top of the job description. In short the clinical definition of your average sociopath.”

So there we have it. We are blessed to live in a society where our voices have a chance to be heard and where we have a chance to achieve success. Unfortunately our political ruler bus drivers are typically sociopaths. At least in the HOA we know where the sociopaths live.