Below The Beltway

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Congress’s Next Victim: Our Right To Contract

by @ 12:29 pm on June 27, 2006. Filed under Individual Liberty, Property Rights, Right to Contract

As if the Flag Burning Amendment weren’t bad enough, there are a host of other flag-related proposals before Congress this week. One would bar Federal Courts from hearing lawsuits attempting to challenge the inclusion of the words “Under God” in the Pledge Of Allegience. Like the Flag Burning Amendment, this one is pure symbolism. The other proposed law I find more pernicious:

Also up for consideration in the House this week is the Freedom to Display the Flag Act, which would bar condominiums or other homeowner associations from restricting the size or placement of residents’ flags. It’s expected to pass today.

(…)

[T]he flag display act was introduced by Rep. Roscoe Bartlett, R-Md. He has said he wrote the measure after meeting a flag dealer who told him that some of his customers who lived in condo developments were restricted in their right to fly the flag.

I wrote about this issue back in January and what I wrote then applies equally when talking about this bill:

POA?s are entirely a creation of contract. Groups of homeowners come together and form an organization that will accomplish certain goals. Typically, this includes maintaining some standard rules of esthetics for the community, contracting for trash removal, and maintaining property that is owned by the POA members in common rather than by any one person.

When you buy a house that is part of a POA, you agree to certain rules and regulations. These rules can be as mundane as what day you put your trash can out or what color you can paint or front door. Or, they can be as rigid as telling you that you cannot put a sign of any kind in your front yard. In fact, if your front yard is actually POA property, which is true of many townhouse communities here in Northern Virginia, then the property really isn?t yours anyway.

(…)

If you don?t like the rules that a particular POA has then you have several options. For one thing, you don?t have to move there to begin with. In Virginia, sellers are legally required to give buyers a copy of the POA rules and buyers are given an opportunity to review those rules and back out of the contract without penalty. If you?re in a POA and you don?t like the rules, or how they are being enforced then get involved in your community and get the rules changed

Or, maybe its just easier to get a hack like Roscoe Bartlett on your side.

H/T: KipEsquire

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9 Responses to “Congress’s Next Victim: Our Right To Contract”

  1. Homeowners Associations aren’t contracts. For instance, my subsdivision created one and imposed it on me. Specifically the city said create one and it was created. I had no say in the terms, rules, conditions, or whether or not I entered into that arrangement. Homeowners associations are generally pseudo governments, not contracts where willing parties decide or not to decide to create them or enter into them.

    The HOA can change the rules at any time (with some voting process) can levy fines based on those rule changes, etc. In a contract, every time a term is changed, all parties need to consent, with an HOA only 50.1% need to.

  2. Since I don’t know the circumstances of your situation, I won’t comment on it. However, the vast majority of homeowners did have an option of not being subject to a particular HOA and all homeowners living in HOA’s have the option of becoming active in the Association to get the rules changed if they don’t like them.

    Using the power of the state to change the terms of private contracts is not a legitimate function of government.

  3. Flag Lawn Protection Act?

    The proponents of a partial repeal of the First Amendment via a “Flag Protection Amendment” insist that the flag “stands for something.” Something intrinsically and perhaps uniquely American.

    Well, apparently that “something” doesn’t inclu…

  4. Sure, I could become active in the HOA, as anyone could, but I could become active in local politics, or active in national politics, that doesn’t make government a contract-based entity. (Certainly not since they continue to violate any terms of the contract that interferes with whatever pet project or crusade they are on at any given time).

    As far as I’ve seen when I was buying a house, if you buy X house or live in X community, you are part of the home association period. You may never show up, the may never meet. But there is no real election for the members and they can levy fees and impose rules.

    I wouldn’t call that a contract, certainly not when one party can impose themselves on another. Perhaps that’s how it works in Illinois and it’s different elsewhere, but with the lawsuits and crap, it seems like a nonvoluntary association (or people would just leave the HOA when things don’t go there way).

  5. There is an important difference between an HOA and your local government, and that is that I have a choice over whether I want to be governed by an HOA, or by an HOA with particular rules. I don’t necessarily have the same choice with a government.

    And, yes, you can choose to be uninvolved in your HOA just like people choose not to vote. But, since you had a choice to live in the community to begin with, you can’t really say that the rules were forced on you. And, if you choose not to get involved in the HOA then that is your choice.

    Finally, I think the form HOA’s take is more closely analagous to contracts than anything else. Yes, its true that when I wanted to buy my home three years ago, I had to accept the rules of the HOA, but I could have just as easily decided not to buy the house if I didn’t like the rules. To my calculation, the rules were at most a minor annoyance and, for the most part, the HOA is a convenience because it centralizes things — such as garbage colletion, snow removal, and landscaping of community property — that I would otherwise have to pay attention to myself.

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  7. [...] Doug of Below the Beltway, following up on several posts about the Flag, free speech, and flag-burning, and points out Congress?s Next Victim: Our Right To Contract. Congress wants to blast a hole in the ability of Homeowner’s associations from setting rules, in this case requiring an HOA to allow you to display a flag. [...]

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  9. [...] I wrote about this law last month and about the issue in January, where I said: The Constitutions of the United States and Virginia do protect an individual rights to freedom of speech, but they only protect it against the action of the state. There is no such thing as a right to free speech that applies to private entities. If you are on my property, I have the right to stop you from engaging in speech that would otherwise be protected if you were on your property or if I were a police officer. And this is where POA?s come in. [...]

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