> You're only partially correct (if I may argue with a lawyer on a legal
> issue). If the laws concerning Homeowner Associations (or private
> contracts) permit actions which are unconstitutional ... limit
> free speech (First Amendment) , due process (Fifth Amendment) rights
> or are subject to federal preemption, e.g. interstate commerce (Article
> 1, Section 8), then the reform becomes a judicial issue and the law(s)
> in question must be struck down.
And therein lies the root problem. All the great protections you just
mentioned and are constructed and framed within our
Constitution are limits of GOVERNMENTAL power, not private power, such as that
vested in homeowners associations (HOA). This is a
critically important point in U.S. Constitutional law: A private person or
entity CANNOT commit an unconstitutional act except when
acting on behalf of the government. However, a private person or private
entity can be in violation of statutory and case *law.*
The power given to Congress in enacting laws in contained within the first few
articles of the Constitution. Congress may then
enact laws subject to legislative procedure, or...Congress may grant its
authority to an executive agency...like the FCC This is
exactly what occurred when the FCC preempted all restrictive covenants that
preclude the homeowners installation and use of off-air
television, satellite, and high-speed Internet receiving antennas. Congress
granted within the FCC the authority to codify this
into law. HOWEVER, Congress did not intend for the FCC to have carte blanche
power to make a similar blanket ruling across other
FCC-regulated services. In all fairness to the ARRL, it was a nice attempt,
but the FCC knew better.
Back to your point Joe: Since the HOA is a private entity, and under normal
circumstances, they cannot be in violation of the
Constitution. Moreover, by taking title to the property, you are also waiving
many rights that would otherwise protect you from
excessive governmental power. Today, this waiver falls under the private
contract and real property laws as governed by your state.
However, when a HOA wields power traditionally held by local government, then
their cute and tidy practices turn into something much
bigger. A rose by any other name....is still government. In Florida, this
occurred several years ago in the Foote Towers case.
The court ruled that the local HOA had indeed metamorphosed into local
government and that the HOA's power had become excessive
without affording procedural and substantive due process rights to the
homeowners. The moral of the story? Don't let the HOA
become too big and powerful.
-Paul, W9AC
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