Green Building Red-Lighted by Homeowners’ Associations: "With environmentalism en vogue, many homeowners are finding economic solutions within the green building movement. However, restrictive covenants established by homeowners’ associations (HOA) have made it extremely difficult for many Americans to make their homes more energy efficient."
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Thanks to Mark Pike, recent grad of William and Mary School of Law, for this post and his law review note.
1 comment:
Nice paper. The author focuses on the HOAs desire to retain the status quo and outdated covenants. Sadly, the CID industry has focused on this to rationalize making it easier to create and amend (not delete) restrictive covenants - without limit as to what restrictions can be imposed. The result, of course, is that such changes allow for the imposition of an HOA in non-HOA neighborhoods and also to impose even more restrictions than what previously existed (e.g., mandatory fees, foreclosure power, and absurd prohibitions).
Legislators often don't seem to understand what they are doing because the bills are simply cast as "amending restrictive covenants" and there is no mention of HOAs. So they actually get combative when someone points out that this is imposing HOAs in non-HOAs. Of course the legislators can't explain why CAI is there supporting the bill otherwise.
At any rate, the problem is that making it easier to change without protecting fundamental rights of individuals in these places is NOT helpful. The "changes" that occur are typically far worse. One such change is inevitably the change to the amendment process itself - to make it such that a very few residents can impose greater restrictions on all the other homeowners.
This should be analyzed as a state taking without compensation. People do not choose such things as evidenced by the lack of any democracy and the lack of any protection for insular minorities in HOAs. The HOA's existence is as the whim of statutory construction created by the legislature. The people's existence, however, is not at the whim of the legislature. If the state cannot take such things from people without compensating them, then the state cannot delegate such powers to private entities either.
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