Saturday, May 28, 2005

Developers Try to Limit Speculative 'Flipping'
Nancy Levy sent this Washington Post article on a subject I've been hearing about from several sources. Developers are trying to limit the number of speculator-buyers. I've heard (not in this article) of including covenants that commit the purchaser to not selling until at least a year has passed:

For the past few years, it has been a way to make easy money: Sign a contract to buy a property when it is still nothing more than a few squiggles on a builder's plans. Then, when there are four walls and a floor, or even before, flip it to another buyer, making a profit without ever moving in or even being a landlord. With prices and demand climbing around the Washington region, such investors could make hundreds of thousands of dollars during the two years or so that it takes to build a condominium complex, townhouse or housing development, with just a small down payment at risk...

Friday, May 27, 2005

Chicago Tribune | Debate sizzles on the wiring of U.S. towns
Here we have municipalities fighting to get involved in providing broadband services as a public utility. The private providers for these services already exist, obviously. I guess the municipalities see the money to be made. See a contradiction here? Where profits are to be made, munis want to get into the business world. But for things that require taxing and spending for the general welfare--street construction, maintenance and lighting, policing, building code and nuisance-type law enforcement--munis are content to turn things over to HOAs. This is a reversal of the way things are supposed to be in a liberal democracy, isn't it? In any event, it seems the ISPs are getting protection from state legislatures:

Kutztown [Pennsylvania], with a population of 5,000, had grown frustrated that its local telecom providers were slow to offer residents, and especially businesses, the kind of high-speed Internet access commonly available in urban centers. So Kutztown launched its communications network in 2002, financed by a bond offering and a loan from its municipal electric utility. The Spostos' firm now buys business-class Internet service for $40 a month. That is about half the price paid by businesses in neighboring communities for comparable service, but at a slightly slower speed, provided by regional Service Electric Cablevision. Kutztown uses a broadband fiber-optic network that allows faster connections than those customarily available from either DSL or cable modem. But if the country's telephone and cable TV companies have their way, cities and towns eager to emulate Kutztown will find it difficult, if not impossible, to establish municipal communications utilities. This spring, telecom giants SBC Communications and Verizon Communications, along with cable providers such as Comcast and Mediacom Communications, lobbied 12 state legislatures--including Illinois'--to urge passage of laws restricting municipalities from building such networks. Fourteen states, including Wisconsin and Missouri, limit or prohibit cities and towns from pursuing such enterprises.
British Medical Experts Campaign for Long, Pointy Knife Control - New York Times
This is not satire. When American Supreme Court Justices, such as Anthony Kennedy and Stephen Breyer, start waxing eloquent about how we in the US should start learning from the wisdom of foreign law and policy, consider examples like this one. The UK has very strict gun control laws (of the sort many American liberals advocate), and their violent crime rate is soaring. Answer? Knife control.

The authors of an editorial in the latest issue of the British Medical Journal have called for knife reform. The editorial, "Reducing knife crime: We need to ban the sale of long, pointed kitchen knives," notes that the knives are being used to stab people as well as roasts and the odd tin of Spam.The authors of the essay - Drs. Emma Hern, Will Glazebrook and Mike Beckett of the West Middlesex University Hospital in London - called for laws requiring knife manufacturers to redesign their wares with rounded, blunt tips. The researchers noted that the rate of violent crime in Britain rose nearly 18 percent from 2003 to 2004, and that in the first two weeks of 2005, 15 killings and 16 nonfatal attacks involved stabbings. In an unusual move for a scholarly work, the researchers cited a January headline from The Daily Express, a London tabloid: "Britain is in the grip of knives terror - third of murder victims are now stabbed to death."

Thousands of homes destroyed to make way for Olympic tourists

Just to put HOAs and American municipal governments in perspective, here's what reallytyrannical land use controls look like:

YE GUOZHU used to own two restaurants in Beijing. Both were razed in 2001, as was his home in the Yongdingmen district of the city two years later, to make way for parks to beautify the Chinese capital for the 2008 Olympics. Last year Mr Ye sought permission to protest against such forced evictions. He was arrested for “disturbing social order” and sentenced in December to four years in jail. His family have not seen him since and do not know where he is held...Building an Olympic Games infrastructure is the kind of ambitious project at which China’s communist rulers, with the benefit of years of central planning behind them, are particularly adept. The plans include an Olympic Green covering nearly 2,800 acres — 1,680 acres of park and 1,000 acres for the Olympic Centre. The National Stadium, a controversial project resembling a bird’s nest that has been halted once for modifications, will seat 80,000 people. Not content with building 19 sports stadiums and refurbishing 13 others, city planners have seized the opportunity to reshape the landscape of Beijing.

What's the difference between a libertarian and a conservative?
I had a private post or two from people asking for an answer to that question. This link goes to a New York Libertarian Party site that talks about how libertarians would reply (although others may characterize them differently). Libertarians say that normally we think of people being either liberal or conservative, and fashion a one-dimensional continuum of left-to-right. But to understand libertarianism, they tell us, you need to think in two dimensions, as this passage explains:

A breakthrough came when David Nolan, a graduate in political science from the Massachusetts Institute of Technology, published "Classifying and Analyzing Politico-Economic Systems" in the January 1971 Individualist. The Nolan Chart shows the highlights of the chart he introduced in that article. Nolan divided human action into two categories, economic and social, so his chart has two axes, one to measure the degree of freedom in economic affairs, the other to measure the degree of freedom in social affairs. Then he plotted the positions of various political groups to see how they related. Maddox and Lilie suggest a matrix approach with four quadrants: liberal, conservative, populist and libertarian. Their research indicates 17 percent of Americans fit in the libertarian quadrant, with baby boomers more heavily libertarian (22 percent), as are college graduates (32 percent).

The easiest way to understand this is to take a look at the chart itself. The point is simple, though. Libertarians say that conservatives are people like Bill Bennett, who believe in a leaving the economic system relatively free from government control (high score on economic self government) but are comfortable with goverment controls on things like drug use, prostitution, abortion, and other non-economic liberties (low score on personal self government). Libertarians say that liberals are the opposite of that, because they support heavy government restrictions on economic activity (minimum wage, taxation, workplace and environmental safety laws, etc.) and a high degree of freedom from government where personal liberty is concerned. But libertarians (according to their self-definition) want both a high degree of economic self government and a high degree of personal self government. They want individuals to be free to structure their own relationships in economic an non-economic matters.

That's where HOAs come in. To most libertarians, HOAs represent freedom from coercive municipal governments and an opportunity to live under rules that represent self-government. And they believe that if you don't like the rules in one HOA you can move to another, or change the rules. This, they believe, makes HOAs a better way to provide for collective needs than municipalities.

I understand all this, but it is just theory, sometimes reality gets in the way of theory. I'll post more on this later, but what do you say about liberals who believe in free speech for themselves but not for conservatives? And what about HOAs that are mandated by local government?


Thursday, May 26, 2005

Salsa Dancers and Stunt Men? Must Be a Miami Condo Project - New York Times
Nancy Levy forwarded this link to an article about the remarkable lengths to which developers will go to sell condos in Miami...

In the last month alone, you could salsa with dancers in fringed hot pants at Aqua, hear a drag queen D.J. at Cynergi or watch stunt men ricochet off a trampoline at Soleil...These were launch parties for condominium projects, one of the stranger forms of nightlife in a city obsessed with real estate...Deep-pocketed developers, forced to be ever more creative in the pursuit of buyers for condos still years from being built, pay for these lavish affairs...
Lawyer winds up Britain's longest ever legal speech after 119 days - Yahoo! News
Is he getting paid by the word? And this is just his opening statement. Wait until he gets to closing argument.

LONDON (AFP) - A top lawyer for the Bank of England is set to finish what is believed to be the longest speech in British legal history, which lasted 119 days, a newspaper said. Nicholas Stadlen is finally due to sit down after spending the past few months delivering his opening remarks from 125 files in the central bank's defence of an 850-million-pound (1.6 million dollar, 1.2 million euro) compensation claim by creditors to collapsed bank BCCI, the Guardian reported.

Wednesday, May 25, 2005

Gate guarded - against each other
Too many modern neighborhoods are, well ... not all that neighborly

Nancy Levy sent this link, which requires registration.
It's an interesting account of life in a gated HOA in Orange County, CA:
...Hopefully not everyone shares my experience with the guarded-gate community where I lived in San Clemente. Within these invisible walls, over a period of 12 years I visited the home of just one neighbor. For an exorbitant monthly fee the guard would not allow my own mother entrance because my phone was busy. As we fortify ourselves against the undesirable element on the outside, so too we are protected from individuality within. Homeowners' associations, instead of creating peaceful harmony and a non-threatening manner in which to meet those who share the street where we live, accomplish the opposite. On the four boards on which I enjoyed the dubious honor of serving, I witnessed consternation, condemnation and confrontation, sprinkled with refreshments and an overall unwillingness to accommodate varying opinions. It is virtually impossible to require that individuals who are as different from each other as the colors they might want to paint their houses to lose themselves in a sea of sameness and anonymity, which is in many cases today's neighborhood. Consequently, no one gets along. Trust evaporates when one man attacks another for his weeds and threatens a lawsuit. Never mind that the man is holding down two jobs to pay for landscaping; the CC&Rs state the yard must be complete within 90 days. To make an exception would be setting a precedent. But there is hope despite our identical roofing, colorless walls and vistas void of foliage; there is that occasional person who forsakes the fear of lawsuits for friendship. I now have the privilege of living next to Karen and Ken, a doctor and nurse who, considering that they operate in a world of suspicion and malpractice insurance, might seem unlikely candidates to extend an unhesitating hand.

ACSBlog: The Blog of the American Constitution Society: Guest Blogger: Nominee Brown's Views Rejected by Justices Scalia and Thomas
The other day I mentioned some of the objections to Janice Rogers Brown based on her libertarian views. I was speculating that she might be a pro-HOA justice because, like most libertarians, she would object to government interference with the terms of CC&Rs, which are contracts that structure private property rights. Here is a link to a post on ACSBlog by Lauren Sanders, an attorney at the National Senior Citizens Law Center. This post explains why her dissent in San Remo Hotel L.P. v. City and County of San Francisco, 27 Cal. 4th 643 (2002), is considered so radical. She said (the poster argues) that government infringements on property rights should be evaluated under the "strict scrutiny" standard, which is the highest level of scrutiny, rather than the "rational basis" test, which is the lowest. In other words, property rights should be treated like freedom of speech, press, association, and other "preferred position" liberties deemed essential to the functioning of a democracy. If her view became law, it would mean that a state infringement on private property rights would only be upheld by the courts if the government could show that the infringement was necessary to advance a compelling government interest. That's hard to do. Right now, under the rational basis test, all the government needs is a rational relationship to any legitimate government interest.

My guess is that if she does hold that view, she'd take a dim view of legislative action that tampered with the relationships set up in CC&Rs (such as the duty to pay assessments and obey rules and live under the discretionary governance of an HOA), and would hold property owners in HOAs and condo associations to the terms of their original deal. In other words, the recent wave of reform legislation in California, Nevada, Arizona, and Florida would probably be suspect under the standard that she believes in, if the post I linked to is correct about her views. She is on the California Supreme Court. She agreed with the court in Villa De Las Palmas Homeowners Assn. v. Terifaj, 33 Cal. 4th 73 (2004) where it was held:

We conclude that under the plain and unambiguous language of sections 1354, subdivision (a), and 1355, subdivision (b), use restrictions in amended declarations recorded subsequent to a challenging homeowner's purchase of a condominium unit are binding on that homeowner, are enforceable via injunctive relief under section 1354, subdivision (a), and are entitled to the same judicial deference given use restrictions recorded prior to the homeowner's purchase. We also conclude the trial court did not abuse its discretion in awarding attorney fees to the homeowners association as the prevailing party.

That case is a big time reaffirmation of Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal. 4th 361, by the way, which is one of most pro-HOA rulings from any state supreme court.
Odd U.S. state laws ban owning skunks, swearing - Yahoo! News
I think it's good to balance out all the stories about HOA rule-madness with an occasional reminder about wacky laws passed by state and local governments. Besides, it's fun to read.

The legal codes of U.S. states, counties and cities are replete with archaic, sometimes nonsensical and often humorous laws, many of which were passed decades or even centuries ago for a reason that seemed good at the time but has long since been forgotten or faded into irrelevance.

KCBS: Plan To Revitalize Downtown L.A. Approved
Just what LA needs...high rise condos. Wouldn't you just love to be on the 50th floor when the San Andreas Fault decides to relocate itself a few hundred feet lower?

A plan that would alter the downtown skyline by creating a dense urban center of high-rises, shopping centers and parkland around the Disney Concert Hall was approved by the city and county. Authorities hope the Grand Avenue project approved Monday will provide a nucleus for the kind of core that Los Angeles has lacked -- a place where people both work and live. Currently, the area empties at night as workers return to the suburbs...The project calls for five high-rises -- four 30-story condominium buildings and a 40- to 50-story hotel and condominium complex. There would be a 16-acre park linking Bunker Hill and the Civic Center, a supermarket and 400,000 square feet of retail space that would include a bookstore and multi-screen movie theater.

Median price for S.D. home: $593,000
And half the homes in the entire state of California now cost more than $509,000. Well, there is always the option of not having kids (see below, re San Francisco)...
The median price of an existing home in San Diego County was $593,600 in April, slightly higher than the previous month and up 12.6 percent from a year ago, a real estate group reported today...In neighboring Orange County, the median price for an existing home last month was $682,200, a 2.2 percent increase from March, when the median price was $667,200. The median price rose 5.7 percent from $645,590 in April 2004...Statewide, the median price of an existing home in April was $509,230, marking the first time the median cost has topped the half-million-dollar mark, according to CAR President Jim Hamilton. - Local/ Regional News: Cops nail 'parking Nazi': JP neighborhood was victimized by vigilante for years
Who does this guy think he is...the president of his condo association or something?

A self-appointed traffic judge who allegedly meted out street justice by vandalizing cars in Jamaica Plain for everything from expired stickers to parking violations was arrested yesterday after he was caught on camera keying the side of a police decoy van...His punishments featured dousing cars with chocolate syrup, spray paint and feces for infractions including out-of-state plates in residential parking spots and even offensive bumper stickers...
A search warrant was being executed last night at the condo Feest has shared for the past 11 years...
Child Population Dwindles in San Francisco - Yahoo! News
Fred Pilot sends this disturbing story about how San Francisco is becoming an adults-only community. I understand why people with kids are leaving, but how about the choices people make that allow them to stay? If there weren't so many households willing to dump all their income into buying an overpriced house or condo in order to stay in that city (instead of perhaps living someplace where they can afford to raise a family or just have more disposable income), prices wouldn't be so high. In other words, there wouldn't be a housing bubble in San Francisco if there weren't so many buyers--many of whom I suspect are making bonehead decisions to purchase houses and condos that they can't afford, and that may turn out to be bad investments. It is also amusing to see Mayor Newsom's approach to this: more public services, which means higher taxes. As if high taxation were not also part of the reason families are leaving.

San Francisco has the smallest share of small-fry of any major U.S. city. Just 14.5 percent of the city's population is 18 and under. It is no mystery why U.S. cities are losing children. The promise of safer streets, better schools and more space has drawn young families away from cities for as long as America has had suburbs. But kids are even more scarce in San Francisco than in expensive New York (24 percent) or in retirement havens such as Palm Beach, Fla., (19 percent), according to Census estimates. San Francisco's large gay population — estimated at 20 percent by the city Public Health Department — is thought to be one factor, though gays and lesbians in the city are increasingly raising families. Another reason San Francisco's children are disappearing: Family housing in the city is especially scarce and expensive. A two-bedroom, 1,000-square-foot starter home is considered a bargain at $760,000. A recent survey by the city controller found 40 percent of parents said they were considering pulling up stakes within the next year.

Tuesday, May 24, 2005

Irate Parent Rams Van Into School - Yahoo! News
Who says civility is on the decline in this country?

PHILADELPHIA - A woman apparently upset over the treatment of her children by other students rammed her minivan into the front of the Huey Elementary School in West Philadelphia this morning.

Home Sales Up 4.5 Percent in April
So says the National Association of Realtors. And this is why people are now talking about the housing "bubble" going pop.

Sales of existing homes rose 4.5 percent in April to the highest sales pace on record as low mortgage rates continued to fuel a housing boom, a national trade group reported Tuesday. The National Association of Realtors reported that sales of single-family homes and condominiums climbed to a seasonally adjusted annual rate of 7.18 million units last month, the fastest pace on record. The increase was far above the small 0.2 percent advance that had been expected and was credited to further declines in mortgage rates. The strength in sales last month was accompanied by further upward pressure on home prices. The median price for an existing home sold last month rose to a record $206,000, up 15.1 percent over the median price a year ago. That represented the biggest 12-month gain in home sales prices since November 1980 and was certain to add to concerns that the housing industry could be experiencing a speculative bubble similar to the stock market bubble which popped in the spring of 2000.

No changes for condo and homeowners associations: Legislature's failure to act on proposals means current policies remain in effect.
South Florida Sun-Sentinel

Nancy Levy sends this very interesting piece on the Florida legislative wrapup, and the proposed legislation that would have given HOA residents access to the condo ombudsman:

Homeowners still face foreclosure even if they owe their association $25. Directors of condominium and homeowners associations are still not required to learn the law before spending owners' money.The state still can't regulate homeowners associations or provide an ombudsman to mediate their disputes, as it does for condo owners. This year's battle in the state Legislature featured those who want state law changed to make boards more responsible to owners and those who oppose change. When the session ended in Tallahassee on May 8, almost everything remained the same as it was before it began in March.

Residents help police resolve neighborhood disputes
Nancy Levy sent this piece that seems to suggest a cozy relationship is growing between Phoenix area HOAs and the municipal government. The article starts by talking about "residents" who "try to prevent or resolve neighborhood disputes on their own." This makes it seem like some miraculous outpouring of social capital. Maybe--I have no idea. But when you read further, it seems as though HOAs are somehow involved. We all know that HOAs enforce document provisions governing behavior that could also be called in to the police as a public nuisance (noise, parking, etc.) The question that interests me is to what extent people like Officer Barnhart are working with or through HOAs to handle this sort of low-level complaint.

...according to Phoenix police Officer Robert "Barney" Barnhart, the Community Action Program coordinator, most Ahwatukee Foothills residents try to prevent or resolve neighborhood disputes on their own. Party planners often head off complaints by letting neighbors know there will be a band, cars parked up and down the street and when a party is expected to end. They may go door-to-door as a personal touch or leave a note of explanation with their phone number and address in case there is a problem..
..Many homeowners associations can help with ongoing problems. Some Covenants, Conditions & Restrictions (CC&Rs) contain a nuisance clause covering loud parties and barking dogs as well as rules about roaming pets, property infringement and parking situations. An HOA can be the go-between when neighbors want to avoid a confrontation, said Robert Blakesley, general manager for the Ahwatukee Board of Management, which oversees 5,100 homes in 54 subdivisions. "HOAs are not the ultimate enforcement, but we try to do what we can to help the person," Blakesley said. "We will send a letter, then call the complainant back and see how it's going, and sometimes we send a second letter."

Monday, May 23, 2005

States target property taxes as home prices zoom (
Fred Pilot sends this. Add the HOA assessments on top of the property tax, for many folks. But there is no relief in sight for that "double taxation" situation.

"People are facing being taxed out of their homes," said Ted Harris, a 69-year-old retiree living on the Nevada side of Lake Tahoe, whose taxes climbed from $2,200 in 1990 to $12,000 last year. "Government simply swallows the money and finds lots of reasons to spend that money." From Texas to Illinois to Pennsylvania, lawmakers are weighing property tax caps, limits, exemptions and other ways to ease the burdens for homeowners - whose tax bills are the down slide of home values increasing. Proposals to change the system have become part of the gubernatorial campaigns in New Jersey and Virginia, the only states with governor's races this year. - News - South Natomas Home Covered With Sheet Metal: Residents Claim Neighbors Bombarding Them With Radiation

Here's another thing you can't do in an HOA, or even in their municipality as it turns out. And we have been able to confirm to our great relief that this is not Fred Pilot's house.

SACRAMENTO, Calif. -- A home in Sacramento's south Natomas neighborhood is surrounded by sheet metal, and neighbors are calling it an eyesore. The [name deleted] family lives in the home on Timberwood Court, and claims the aluminium pieces are necessary to protect them from unknown neighbors who have been bombarding them with radio waves and making them sick.
U.N. Official Calls U.S. 'Ungainly Giant,' and UN a "neighborhood association"
Got that? The United Nations is just a big, warm, fuzzy neighborhood association. Sort of like a global HOA. So says Kofi Annan's chief of staff:

"This ungainly giant of a nation that has led the world in advancing freedom, democracy and decency, cannot quite accept membership in the global neighborhood association, and the principle of all neighborhoods — that it must abide by others' rules as well as its own," Malloch Brown said at the commencement address to Pace University law students.

Civic leaders fight group on home, condo owner law: South Florida Sun-Sentinel
Nancy Levy sends this remarkable article about organized opposition to the homeowner advocacy group, Cyber Citizens for Justice. The interesting question is, who got all these folks organized? I don't know. But as you read toward the end of the article, you see a carefully-worded mention of attorneys, and another mention of the Community Associations Institute and how many clients their member lawyers have. I'm reading between the lines, but is the journalist suggesting that CAI (which is an attorney and manager dominated trade association) is organizing their client association directors to oppose CCFJ? In other words, is the author of the article suggesting that this an example of business-organized grassroots lobbying? Does anybody have information on this?

Though this year's legislative session recently ended, leaders of this new coalition plan to start talking to their legislators in coming months to win their support. The coalition, tentatively called the Coalition of Community Associations, wants to make sure Cyber Citizens activists do not dilute homeowner and condo laws. Formed in 2000, Cyber Citizens has grown increasingly influential in Tallahassee. Among the group's successes: a condominium ombudsman who serves as a neutral resource for unit owners, associations and board members, and a law that prevents boards from foreclosing on homes because of unpaid fines...

Bergemann and a legislative ally, Rep. Julio Robaina, R-Miami, contended that attorneys are pushing the new coalition. While there are some attorneys involved, Spears said they are not driving the coalition. "These are basically homeowners," he said. "We're not interested in filling the pockets of attorneys." Community associations already have the Community Association Leadership Lobby, which represents 4,000 clients of the law firm Becker & Poliakoff.

Sunday, May 22, 2005

My Way News: Scientists Say Sunshine May Prevent Cancer

So, Del Webb had it figured out after all. I guess Sun City is the place to be, according to the latest scientific findings.

Do you ever wish that these scientific pinheads would just quit trying to tell us what is good and bad for us and how we should live, and get busy curing colds or something? For thirty years dermatologists have been saying that we should cower in the basement covered with sunscreen like a freaking vampire. Now all of a sudden the sun is good for you. Wine is bad. Wine is good. Fat is bad, except if you're French, in which case foie gras is the key to longevity. Salt is bad, but now it's good. Drink lots of water, except if you drink too much you die while you're running a marathon, which is good and bad for you also. Moderation is good for you, except if you have too much of it. Then it's bad because you need to be extreme once in a while.

Got it?

Living in a Retirement Village, Back Home With Mom and Dad - New York Times
How would you like to be a young person living in a retirement community? Nancy Levy sends this NYT article that gave me claustrophobia.

Many adult children moved back into the nest in the 1990's, after being hit by layoffs and the bursting of the dot-com bubble. But in a twist on the phenomenon of extended adolescence, some sons and daughters are now sampling the leisurely lifestyles of their aging parents. Driven by skyrocketing house prices, uncertain job prospects and extended stays in higher education, some young adults figure they can save money while enjoying golf lessons, fancy clubhouses and clay tennis courts...Only a sliver of young adults live in retirement communities. But with the growth of age-restricted developments, it is more likely that homeward-bound adult children will land in one of them. There were 1,274 such "active adult" communities in 2004, six times greater than the 204 in 1995, said Bill Parks, a consultant to homebuilders who works in Scottsdale, Ariz. Many have sprung up near Boston, Chicago and New York, making it easier for the offspring of baby boomers to come home again and still keep their big-city jobs.

Calvert News October 2004: Creating Community in Planned Communities

Don't ask me where Fred Pilot found this document, because I have no idea how he comes up with these things. This is the transcript of a conference. Wayne Hyatt is on the program, along with Donald Stabile, the economist who wrote a book on HOAs that relied heavily on Byron Hanke's recounting of events in the early 1960s. This transcript is well worth reading to get the original rationale for this kind of housing, back when there was hardly any of it to be found.
More on Justice Brown...
Fred Pilot takes issue with my speculation about Justice Brown, where I consider how she would view HOAs if a case involving them came before her. I'm reproducing our comments here because some people don't get to the comments and perhaps we can start a discussion:

Fred says: "You are mixing two different and very important things here. Local government privatization today is no longer simply about the right of a developer to impose deed restrictions as in the early days of American common interest developments when they were used to keep out racial and ethic groups not wanted by the developer. Rather than being driven by developers, local government privatization is now land use policy adopted by muncipalities and counties to effectively privatize their traditional governmental obligations. It has nothing to do with developers'rights."

McKenzie responds: I know the municipal mandate situation changes the dynamics here, but it doesn't seem to change the way libertarians view HOAs. My point is to consider what Justice Brown, as an obvious libertarian, might say about HOAs. Therefore I'm adopting for purposes of discussion the perspective they take on HOAs in general. Libertarians--at least nearly all the ones I know--defend HOA living as an example of contract-based service provision, and argue that it is better than the taxation-based service provision of municipalities. Why? Because (they say) HOAs are voluntary organizations. I know, I know...municipal mandates, lack of choice, lack of disclosure...but that's what they say. And the initial declaration of CC&Rs is universally viewed by courts as a contract. It is a contract that is made by one party (the developer), and accepted by another (the original purchaser," and it "runs with the land," meaning that all subsequent purchasers must accept the same contract. Libertarians believe in freedom to contract for whatever relationship you want, even if it is exploitative. They support legalized prostitution, drug use, gambling, and even contracts to pollute. So the issue remains: does Justice Brown think HOAs are voluntary organizations, whose contract-based relationships (structured by the developers and purchasers and based on their rights to freely contract) should not be tampered with by the courts? My guess is, "yes."

If I had my druthers, libertarians would recognize that the facts don't fit their theory. Choice is restricted, municipal mandates to build HOA-run developments constitute government involvement, the CC&Rs are written by one party and non-negotiable by the buyer, the CC&Rs are often incomprehensible, etc. But I assure you, libertarians are by and large pro-HOA. In fact, they think HOAs are an example of Robert Nozick's private protective associations, as envisioned in his classic work of libertarian philosophy, Anarchy, State, and Utopia. If they had their way, libertarians would replace municipal governments with HOAs, so we'd all be living in them. If you don't believe me, read Bob Nelson's article.

Comments, anybody?