- The Washington Times - Thursday, May 3, 2012

It’s not always true that the form of government closest to the people is best. In some cases, it can be the worst. Unchecked by sufficient legal restraints, private homeowners associations (HOAs) have a reputation for going too far when it comes to upholding unnecessary and intrusive community rules.

In a current case in East Texas, an Army captain deployed on the battlefields of Afghanistan was sued by his HOA over a swing set he had built for his children before leaving. In 2004, the father-in-law of Supreme Court Justice Clarence Thomas was embroiled in a battle with his Nebraska HOA over his right to fly the American flag on his property on Memorial Day. In 2009, a Richmond homeowners association threatened 90-year-old Medal of Honor winner Van T. Barfoot for daring to display Old Glory on a flagpole in his yard.

The latter incident grabbed so many headlines that the Virginia General Assembly two years ago enacted a law overruling HOA covenants that ban the Stars and Stripes. It was a rare display of backbone for a legislative body that otherwise has sided with the politically powerful community-associations industry, which wields the clout that comes from collecting $40 billion in assessments annually, according to the Community Associations Institute.

Just last month, the Virginia House of Delegates voted 59-36 to sustain Gov. Bob McDonnell’s veto of an innocuous measure that would have asked the state’s Common Interest Community Board to draw up a model set of rules for HOAs. “While perhaps well intentioned, this bill increases the Common Interest Community Board’s workload without any discernible benefit,” Mr. McDonnell said in his veto message. The board is hardly overworked, having taken a total of 24 regulatory actions in the past three years - less than one a month.

It’s true that people shouldn’t live in a voluntary association if they don’t want to abide by typical HOA rules. In some parts of the country, however, there may not be many alternatives. Nationally, by the Census Bureau’s count, there are 19 million homes governed by associations out of 74.8 million owner-occupied housing units; that’s almost 1 out of 4. Most people who buy into this arrangement are focused on their jobs and family obligations, devoting little attention to association meetings. That leaves the all-powerful association boards in the hands of busybodies who enjoy the feeling of power that comes from controlling the lives of others.

Federal, state, county and city governments have constitutional due-process rights limiting what can be done. There’s no way for property owners to challenge the arbitrary rules and decisions of an association board without going to court, and the HOA retains the power of foreclosure against a resident who refuses to pay a fine for daring to paint his front door with an unapproved shade of beige or - in most states - flying the flag. HOA representatives have no incentive to be reasonable. Lawmakers need to realize that individual property rights shouldn’t be sacrificed to the collective.

The Washington Times