Homeowners association demands 'Jesus' sign be taken down | WHP
GETTYSBURG, Pa. (WHP) - A homeowners association in Gettysburg is demanding that a sign that says "Jesus" be taken down. The homeowners association responded to the sign after a complaint was filed about the homemade display in the front yard of Lynn and Mark Wivell's home, saying it was "offensive." In an email to the Wivells, the homeowners association claimed the sign "wasn't in accordance with normal Christmas decorations" and asked them to remove it.
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Cue the outrage. It may be Jesus this time, but it's the same issue all the time, and it unfolds basically the same way. People move into an HOA that has restrictions on signs and other outdoor displays and structures. Then they erect something in the yard or on the house that breaks the rules, claiming their home is their castle. Somebody complains and the association reacts by demanding compliance with the rules. Then the outraged owner calls the local media, and this story is the result. The ensuing debate is all about the merits of whatever was prohibited: Jesus, Christmas lights, political signs, flags, whatever. The cry goes up, "What do you have against Jesus?" Or the American flag. Or the anti-Trump sign. The HOA and their attorney explain that they are just enforcing the rules that apply to everybody. Often the HOA backs down in the face of negative media portrayals. Sometimes they don't, and generally that means the HOA will prevail and the owner will end up liable for the association's attorney fees.
Behind all the surface outrage, the core issue is the legitimacy of private land use restrictions. Many people think they should be able to ignore them, and they don't think they should have to do what their HOA tells them to do. And local media outlets have this basic story in a template that they can run by filling in the blanks. In the meantime, the most important issues facing most HOAs and condo associations are financial.
16 comments:
“Behind all the surface outrage, the core issue is the legitimacy of private land use restrictions. Many people think they should be able to ignore them, and they don't think they should have to do what their HOA tells them to do. And local media outlets have this basic story in a template that they can run by filling in the blanks. In the meantime, the most important issues facing most HOAs and condo associations are financial.” - Evan McKenzie
It’s not “surface outrage.” Private land use restrictions - or, rather, collective restrictions in a corporate association - are a big deal because the majority of these restrictions and “rules” serve no legitimate purpose on the basis of health, safety, or prevention of significant nuisance to one’s neighbors. Instead, a variety of arbitrary aesthetic requirements alleged to protect property values unnecessarily limit Constitutional rights and civil liberties of homeowners and residents.
In the 1940s and1950s, private land use restrictions were used to “protect property values” by excluding ownership by people with certain racial or religious heritage. Even a Supreme Court ruling didn’t stop this. It took Constitutional amendments to put an end to overt discrimination.
But we still have covert discrimination, and land use restrictions, condo and co-op restrictions, perpetuate it.
How are “modern” private land use restrictions any less onerous? On the surface, the industry presents rules against signs, decor, symbols, paint color, vegetable gardens, solar panels, etc. as a way to “protect property values.” What these restrictions really do is curb personal expression and limit the ability of homeowners to make lifestyle choices and improvements to their property that harmonize with their personal values. The “rules” are a back-handed way to discourage religious and political expression that just so happens to differ from the preferences of majority shareholders of a so-called community.
Our country is more divided than ever.
Although I agree that the financial risks of common interest communities are numerous, these risks are directly related to the social and political structure of governance that begins with CC&Rs, Bylaws, and Articles of Incorporation. Those governing documents are written to benefit Declarants (developers and real estate investors), financial institutions, local governments, landlord investors, and, in some cases, commercial property owners integrated into these communities that operate for profit. Corporate or government interests benefit at the expense of resident homeowners / shareholders, and non-owner residents. Residents pay the price in tangible dollars and intangible restriction of their rights and freedoms.
Hopefully more HOAs will fail. The "just following the rules" argument falls flat for a number of reasons including the reason you identified:
i) the restriction is contrary to reasonable expectations on the use of property
ii) the restriction was created after someone purchased the property
iii) the restriction is unlawful now (due to legislative action - and why do you think such action was necessary)
iv) the restriction never had a legitimate purpose (for anyone other than the developer anyway)
Over and over again the industry continues to try to indoctrinate with a presumption that these restrictions "preserve property values" (for who?) and yet after decades of trade group propaganda it has yet to provide any empirical evidence of the claim.
Sometimes the declaration asserts the restrictions are there to preserve the value of the "Property" meaning the entire project. Yet to whom is that relevant? The lots are bought, sold, and taxed on an individual basis (except for the developer). The developer has the freedom to unilaterally change the restrictions and to add or remove land pursuant to the restrictions - so only the homeowners' hands are tied. It's a fraud to suggest restrictions that burden homeowners with involuntary members in an HOA create value for anyone other than the developer, local government (due to foisting liabilities onto homeowners without providing commensurate relief from property taxes), and HOA vendors. HOAs do not create or "preserve value" for other property owners. What this industry has been able to accomplish is "Leninism" - repeat a lie often enough and others will believe it. Today many homeowners repeat the mantra of "preserving property values" when they cannot provide empirical evidence that HOAs do any such thing.
I don't see how anybody can equate restrictions. on yard signs and Christmas lights with African-Americans being systematically excluded from living in suburbia for decades. The only worse comparison is saying that living in an HOA is as bad as Nazi Germany and the Stalinist USSR. These comparisons are just ridiculous and offensive.
Really?
Not only African Americans - also Asians, Catholics, Jews.
How is it any different to exclude or segregate groups by socioeconomic class or status? Why the push for “affordable” housing created for workforce vs. upscale housing built for college educated professionals? Or restrictions that accomplish the same result? Housing for older residents vs. families? Rules that make it essentially impossible for children to play or live a normal, healthy life? Rules that effectively exclude nonrelated roommates trying to share expenses to make ebds meet? Rules that make it difficult for people with disabilities?
It is discrimination and division based upon different characteristics. But we also know that there are disparities based upon race, age, disability, and socioeconomic status.
> Evan McKenzie said… “The only worse comparison is saying that living in an HOA is as bad as Nazi Germany and the Stalinist USSR. These comparisons are just ridiculous and offensive”
I remember when some guy named Evan McKenzie — you may know him — told Shu Bartholomew that
[00:22:48] It's like something you would see in Nazi Germany or Soviet Russia. People think these things don't go on. But we know they go on every day in condo and homeowners associations.
These people who have no idea how to use power at all. They won't even accept limits on their power. They don't even know what the law requires of them, these directors. They go by what some lawyer tells them to do, which the lawyer tells them to do only because he or she knows they can get away with it.
Because the only recourse you have is some civil suit. Here in Illinois, we don't have an Ombudsman. Most states don't. There's nowhere for owners to turn.
If the lawyer tells them "Oh, just jack 'em around. Who cares what the rules are? Who cares what the law says?” it doesn't make any difference. The transaction costs of enforcing an owner's rights are so great that they are hardly ever able to do it. [00:23:40]
- On The Commons. June 26, 2010. at onthecommons.net/2010/06/
and once told the Baltimore Sun that:
But they can be nightmares for the unwary, who learn the hard way that their homes are not their castles. And politics in homeowner or condo groups can sometimes make the former Soviet Union seem democratic. Associations represent a ‘de facto privatization of local government’ [this blog, on 12/25/2005]
> Evan McKenzie said… “The only worse comparison is saying that living in an HOA is as bad as Nazi Germany and the Stalinist USSR. These comparisons are just ridiculous and offensive”
Leonie Rozenfeld had put in a grape plant, a symbol of his grandfather who spent 12 years in a Soviet prison for illegally selling wine. The Russian immigrant has been cited six times for breaking rules and fined $150 for refusing to remove the grape plant. He eventually did. "I leave Russia for freedom and what I get is prison," said Rozenfeld.
- this blog, 09/05/2004
She likens the experience to her father’s in East Germany, where the communist state took away property rights. “Now I‘m 75, and the same thing is happening to me, in America,”
- Ingrid Boak, quoted in “Underfunded U.S. Homeowner Associations Get Heavy”, 01/07/2014
In the 1980s, I lived in a small DC condominium complex in the highly walkable Adams-Morgan neighborhood. I was one of 14 unit owners. Another was a fairly well-known Russian writer who had defected; the Cold War was still happening then, if not for much longer. Alex (as I’ll call him) was a great, friendly guy, and really more a fan of American culture than a critic obsessed with Soviet politics. I was one of the first to buy into the newly rehabbed complex; Alex was in the second group that began to fill the place out. A couple of us tried to recruit him to join the condo board. I’ll always treasure his bemused response: "Hey, I didn’t leave one communist system just to join another.”
- “The Tyranny of Homeowners Associations” 02/19/2013
> Evan McKenzie said... "Cue the outrage. It may be Jesus this time, but it's the same issue all the time, and it unfolds basically the same way"..."The ensuing debate is all about the merits of whatever was prohibited"..."And local media outlets have this basic story in a template that they can run by filling in the blanks. In the meantime, the most important issues facing most HOAs and condo associations are financial"
Sad, but true.
I would add: and sometimes, a politician * gets involved and (maybe) makes some noises about legislation to protect owners and residents in H.O.A.-burdened communities. But said politician either quickly moves on to something else, or tries but accomplishes nothing (or nothing of real substance), because they don't really understand the issues nor the lobbying power of the $85-billion-per-year H.O.A. industry.
And still whatever it is that calls itself an H.O.A.-reform movement has no well-defined agenda, much less any type of organization, as discussed on this blog on 03/06/2017.
* or a celebrity, such as the recent outrage expressed by talk show host Mark Levin (see "Conservative Talk Show Host Threatens To 'Torpedo A Lawsuit' against his HOA", 12/13/2017).
> Evan McKenzie wrote... "Cue the outrage. It may be Jesus this time"
This even attracted the attention of Sara Palin and Donald Trump
@SarahPalinUSA 12/23/2017
This is unreal. Jesus is the reason for the season!
Good for them for standing their ground.
@realDonaldTramp 12/23/2017
replying to @SarahPalinUSA
This is a disgrace! Trump decorations and Jesus decorations should be respected during this time of year! MERRY CHRISTMAS Sarah
Deborah Goonan said... "the majority of these restrictions and “rules” serve no legitimate purpose on the basis of health, safety, or prevention of significant nuisance to one’s neighbors.."
Bel-Air Homeowners Association Issues Fine To Resident With Unapproved Wildfire In Front Yard
12/07/2017
BEL-AIR, CA—Saying the ornamentation was not in compliance with neighborhood guidelines, the Bel-Air Homeowners Association issued a fine Thursday to a resident with an unapproved wildfire in his front yard. “After receiving complaints from neighbors on both sides of the residence, we were left with no choice but to fine Mr. [Michael] Walters for the flames raging in his front lawn,” said association president Linda Heggen, adding that each day the massive blaze was not extinguished would result in additional penalties. “Upon taking possession of their homes, property owners agree to adhere to the strict no-inferno policy. This is an exclusive community, and we can’t allow that to be compromised by someone deciding to keep an obtrusive hundred-foot wall of fire in front of his house.” At press time, however, the homeowners association lifted an existing fine against the resident for overgrown hedges as the wildfire had incinerated them.
> Evan McKenzie wrote... "the core issue is the legitimacy of private land use restrictions. Many people think they should be able to ignore them, and they don't think they should have to do what their HOA tells them to do."
Just so your readers are clear, what is your position on this core issue?
Not sure who you directed the last one at but the "tell a lie often enough and people will believe it" has frequently been attributed to Lenin, Hitler, or Goebbels all of which were propaganda machines. Although the latter two were clearly Nazis the former "Red Terror" leader
It's a shame you find comparison of HOAs with Nazi Germany as "ridiculous" or "offensive". When you cannot point to any rhyme, reason, or lawful, legitimate purpose for many of these restrictions and yet can justify/rationalize financially ruinous lawsuits by HOA vendors which inevitably pursue foreclosure of the victims' homes, why isn't it fair to compare HOAs and the vendors that promote and feed off of them (or the involuntary members) as Nazis?
The defense asserted by HOA vendors and HOA agents for their own conduct as well as that of the HOA corporation is no different than that asserted by Nazi party members at the Nuremberg Trials is ("we're just following the rules"). In other words, we're not responsible for our conduct because we are just "following rules". Of course the same trade groups are also involved in creating the offensive rules.
Consider the following CAI Public Policies:
i) Aesthetics as an Economic Issue (i.e., we can justify ANY rule under the pretext of aesthetics),
ii) Alternative Dispute Resolution (i.e., deny victims access to the courts and prevent public records of the HOA's and its agents' conduct from being made)
iii) Assessment Increase Limitations (i.e., there should not be any)
iv) Fair Debt Collection Practices (i.e., the trade members believe they should be immune from compliance with the FDCPA - a federal statute specifically designed to curb the conduct of unscrupulous debt collectors)
v) Foreclosure by HOAs (without foreclosure, the vendors cannot steal all the equity in the home nor force homeowners to pay windfall junk fees demanded by vendors)
vi) Protection for HOA "volunteers" (these aren't altruistic candy stripers. The trade group seeks immunity for "party leaders" who are "just following the rules")
In other words, the theory is that i) there is no need to have legitimate justification for "rules" - whatever is written must be so, ii) once accused you should be deprived of access to the court regardless of the conduct of the HOA or its vendors, iii) the vendors, er, HOA, should be able to foreclose on your property if you aren't following the rules. One would have to be blind not to find legitimate comparison to HOAs and Nazi Germany.
> "The homeowners association responded to the sign after a complaint was filed about the homemade display in the front yard of Lynn and Mark Wivell's home, saying it was 'offensive.'"
And this is why H.O.A. corporations should be explicitly prohibited from enforcing restrictive covenants on a homeowner's personal property (or at least prohibited from assessing fines).
If the anonymous offended homeowner wants to sue Lynn and Mark Wivell for having a Jesus sign as a "breach of contract", then they should be free to do so. There would be some major differences from the current regime:
• the plaintiff owner could not claim fines to be monetary damages
• the plaintiff owner could not claim fines to be a “debt” owed by the defendant owner
• the plaintiff owner would actually have to demonstrate and quantify monetary damages if claiming some dollar amount; otherwise the most a plaintiff owner could sue for would be a court order requiring the defendant owner to comply with the covenants
• the plaintiff owner would not be able to compel his neighbors to fund the lawsuit against their will
• the plaintiff owner would have to pay for his own legal costs up front, the same as defendant owners currently do
• the plaintiff owner would still be free to persuade his neighbors to contribute to his legal costs
• the plaintiff owner would still be free to persuade his neighbors to join the suit as co-plaintiffs
• the plaintiff owner would not be able to act anonymously
• the plaintiff owner would not be able to “hide behind the corporate veil”; as a result, there would be more “equality before the law” between the plaintiff and defendant than currently exists in these type of cases
• unlike an H.O.A. corporation, and its mangers and attorneys, the plaintiff owner would be subject to the same ethical, moral, and social pressures that the defendant owner is; and thus have incentive to behave in a more “neighborly” manner
• unlike an H.O.A. corporation, and its managers and attorneys, the plaintiff owner would not have the same perverse incentives, moral hazards, and profit motives to engage in destructive and expensive litigation over trivial nonsense
Such a prohibition would effectively put an end to these type of conflicts. Unfortunately, there is no political will -- among our policy makers, among whatever it is that calls itself an H.O.A. reform movement, nor even among self-described "progressive" Democrats -- to do this.
9 more ideas for H.O.A. reform, in a one-page PDF, here.
> "The homeowners association responded to the sign after a complaint was filed about the homemade display in the front yard of Lynn and Mark Wivell's home, saying it was 'offensive.'"
And this is why H.O.A. corporations should be explicitly prohibited from enforcing restrictive covenants on a homeowner's personal property (or at least prohibited from assessing fines).
If the anonymous offended homeowner wants to sue Lynn and Mark Wivell for having a Jesus sign as a "breach of contract", then they should be free to do so. There would be some major differences from the current regime:
• the plaintiff owner could not claim fines to be monetary damages
• the plaintiff owner could not claim fines to be a “debt” owed by the defendant owner
• the plaintiff owner would actually have to demonstrate and quantify monetary damages if claiming some dollar amount; otherwise the most a plaintiff owner could sue for would be a court order requiring the defendant owner to comply with the covenants
• the plaintiff owner would not be able to compel his neighbors to fund the lawsuit against their will
• the plaintiff owner would have to pay for his own legal costs up front, the same as defendant owners currently do
• the plaintiff owner would still be free to persuade his neighbors to contribute to his legal costs
• the plaintiff owner would still be free to persuade his neighbors to join the suit as co-plaintiffs
• the plaintiff owner would not be able to act anonymously
• the plaintiff owner would not be able to “hide behind the corporate veil”; as a result, there would be more “equality before the law” between the plaintiff and defendant than currently exists in these type of cases
• unlike an H.O.A. corporation, and its mangers and attorneys, the plaintiff owner would be subject to the same ethical, moral, and social pressures that the defendant owner is; and thus have incentive to behave in a more “neighborly” manner
• unlike an H.O.A. corporation, and its managers and attorneys, the plaintiff owner would not have the same perverse incentives, moral hazards, and profit motives to engage in destructive and expensive litigation over trivial nonsense
Such a prohibition would effectively put an end to these type of conflicts. Unfortunately, there is no political will -- among our policy makers, among whatever it is that calls itself an H.O.A. reform movement, nor even among self-described "progressive" Democrats who supported Bernie Sanders -- to do this.
9 more ideas for H.O.A. reform, in a one-page PDF, here.
"Sometimes they don't, and generally that means the HOA will prevail and the owner will end up liable for the association's attorney fees."
Or the owner may prevail and wipe the mat with the oppressive HOA.
See, Farran v. Olde Belhaven Towne Owners' Ass'n, CL-2011-2339, 2011 Va. Cir. LEXIS 114 (Fairfax County Aug. 24, 2011) and the many articles about the case and the appellate holdings. "Following the rules" should be immediately challenged with "whose rules" and "why".
It's much more onerous than the clear summary in Debora’s comments. Much more onerous than yard signs and land restrictions. It is called control, who has it and who thinks they should have have it. If indeed property values were protected by following a few ascetic rules and all the owner had to do was pay a competent management (whether board or third party) that was voted in by them, the system may not have to be equated to living in "Nazi Germany and the Stalinist USSR."
Unfortunately, the reality is that human nature combined with the association model are more like a communist/socialist state and invariability lead to tyrannical rule from management and subservience to homeowners. I speak from experience regarding communist countries and HOAs. I lived in Moscow for several years. I studied the people involved in the system, albeit anecdotally--but still somewhat valid. I lived in an HOA. My association documents were adequate. The people were not. Had the documents and state law been the driving force of the model, we probably would have adapted. But who wants to adapt to people in control who see their neighbors as "less then" and unable to make their own decisions (a tenet of the collective model), who wants to adapt to new made-up rules that only serve a handful of agenda-driven neighbors that are nowhere in the documents?
You see, Professor McKensie, the problem of "Constitutional rights and civil liberties" does boil down to control (think yard signs). The board has control over everything with little to no restraints. Members mistakenly think they actually have the control (to vote in the board and vote on rules and restrictions) and are shocked to find any control they thought they had over home and hearth is not protected by the government and usually not even protected in their own documents. Corporate and contract law might be almost adequate to protect the homeowner, except such laws are unenforceable except via lawsuits. Even then the adhesion contracts are not conscionable in the first place--and when it takes 100,000 to 200,000 dollars to find these answers, you have lost your house. (and often your savings and your kids college funds.) Don't call these outliers--they are not. Especially when neighbors see that once one person loses everything, homeowners are held in check by this--the party line. Just like in communist countries, you learn to keep your head down and go along so you didn’t become the next government target.
If homes in HOAs had disclosure on what the actual risks and liabilities are, very few people would buy in--they might rent, move, or something--but aware adults will seldom put their homes up as collateral for anything a group of strangers decide they want (golf courses, vindictive lawsuits, gyms, private roads, equestrian trails) whether or not you want it, any lawsuits initiated by the board, that they might be forced to sue their neighbors and sometimes take their neighbor’s homes, any embezzlements, harassment--I could go on--if they realized that all the protections and rights they believe they have are not there once you sign on the dotted line, THEY WOULD NOT DO IT. That is why the industry hides this reality from homebuyers--hides behind a mantra of "protection of property values."
Note--first comment was considered too long--this is the continuation:
In my case, I knew I could live with the documents--I read every document, something not typical, before I signed on the dotted line. What I didn't know is that the board, and the attorney, and the management did not have to follow the documents or the law. There were/are no consequences for them if they didn't and so they didn't. It was that simple. Until buyers have full disclosure and realize they have little to no protections for a way of life they were raised to believe are inherently theirs...the system is as flawed and very similar to any form of collective government like the Nazis and Stalinists you mention. So even though on the surface it wouldn’t seem to "equate" collective type governments. It is not " ridiculous and offensive" but rather rational and enlightened.
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