Can H.O.A.s Ban Guns?

[Mad Man]

Because HOAs are private corporations, the Second Amendment does not apply.

http://www.examiner.com/examiner/x-...ners-Associations-and-Protect-Property-Rights

It's time to regulate homeowners associations and protect property rights in Texas
May 22, 10:53 AM
Austin Public Policy Examiner
Dave Nalle

...

In Pflugerville, Andrew Clements has become the target of persecution from the board of the Falcon Pointe subdivision because of his politically incorrect career choice. No, he's not skinning animals in the front yard or building his own nuclear reactor. He's running an Internet business where no customers come to his house and nothing he does is visible to his neighbors. Yet he has been threatened by his Homeowners Association and prohibited from earning a living as he chooses, despite the fact that there were no rules prohibiting home businesses in the neighborhood at the time he bought his home.

Clements' great transgression is that his business of choice — his method of earning a living in these lean times — is to sell firearms to hunters and law enforcement. It's a perfectly legal business. He has the right permits from the federal government. He has broken no state or federal laws and his business is protected by both the Second and Fourth Amendments to the Constitution. But none of that seems to protect him from the Falcon Point HOA which has passed a rule specifically prohibiting residents from buying and selling firearms in the neighborhood, a rule written specifically to target just one homehowner, Andrew Clements.

Just wait until the gun control lobby figures out how they can ban guns for 1/5 of the population without having to change a single law. About 60 million Americans live in "common interest communities." And the number is growing, since governments require almost all new housing to be in some form of HOA, leaving consumers with little choice.

Such a situation would be what former HOA lawyer Evan McKenzie referred to as

"repressive libertarianism," where certain people who call themselves libertarians invariably side with property owners who want to limit other people's liberties through the use of contract law. Property rights (usually held by somebody with a whole lot of economic clout) trump every other liberty. The libertarian defense of HOAs is the perfect example. The developer writes covenants and leaves. Everybody who lives there has to obey them forever, even if they lose due process of law and expressive liberties.

As Kerry Howley wrote in the November 2009 issue of Reason, "Not every threat to liberty is backed by a government gun."

PS -- Not gun related, but if you continue reading Dave Nalle's editorial, the second story is about an army captain whose home was foreclosed upon by his H.O.A. while he was deployed in Iraq.

 

[Mags]

I am president of my HOA, we live in the suburbs of Albuquerque so our charter only states no firing firearms or pellet guns in the parks. (the parks are really small and close to houses) Doesn't say anything about your own property and if it did I would remove it.

 

[Mad Man]

I am president of my HOA...
Doesn't say anything about your own property and if it did I would remove it.

Other than your enlightened benevolence and/or personal preference, what is to stop a future Board of Directors from enacting such a prohibition? Or, if a majority of the current Board of Directors passed such a prohibition, what power would you have to undo it?

In framing the dangers of CIDs, McKenzie is careful not to vilify HOA directors. "Most of them are salt-of-the-earth people. They do it because they know it needs to be done," he says. "But all you need is one or two power-hungry control freaks on a board to create a lot of problems."
...
Even when an HOA is well run and filled with great people, adds McKenzie, "it's only one election away from a disaster."

-Carol Lloyd
"The Myth of 'Privatopia.' Do Private Residential Governments Mean The End Of The American Dream?"
December 17, 2002

Is there any equivalent of a "Bill of Rights" in your privatized government to protect homeowners? Or are the homeowners simply governed by a corporate contract that can be amended at any time without any checks and balances, and possibly without their consent or knowledge?

As Darth Vader said to Lando Calrissian, "I have altered the deal. Pray I don't alter it any further."

Other HOAs do dictate what an owner can do on his own property, and even in his own house. For example:

A South Florida couple said their homeowners' association has threatened to break into their home to remove a sign posted in a window
....
A letter from Association Law Group said, 'Should no one be home at the time the Association comes, the services of a locksmith will be utilized and you will be responsible for the cost.'
...
But Local 10 has discovered something Elliot and Frye didn't know. According to the by-laws that govern the neighborhood, which Elliot signed when he bought the house, the association does have the right to enter his property and remove any violations after a written notice.

-WPLG Local 10
"Resident: HOA Threatens To Break Into Home"
January 5, 2010

If HOAs can enact a prohibition on private gun ownership, what's to stop them from searching the home and seizing the guns if the governing contract allows them to?

Because HOAs are private corporations, the Fourth Amendment would not apply.

 

[zoom6zoom]

Prohibiting commerce in firearms in an HOA is not the same as banning guns entirely. If they are going to ban one home based business, they should ban them all.

 

[wishin]

I can empathize with the business owner, but see where a residental neighborhood can and should have restrictions on having just any kind of business operated with its boundaries. Especially a bad criminal enterprise like a gun shop! Now, a junk yard would be welcome............:rolleyes

 

[Guillermo]

gun shop

it is not a gun shop, he is just an FFL

 

[Guillermo]

A HOA cannot ban guns any more than they can strip any other Constitutional right. They only THINK that they are God.

 

[Shadow 7D]

Sounds like he needs a good lawyer
Also a good way to bust a HOA and destroy the covenants, at least in my state it's possible

 

[Warhawk83]

I am president of my HOA

- Mags

I'm not familiar with HOA's. I have a question. If this policy was not in place when he purchased his home and signed his agreement wouldn't he have to sign a new contract in order for them to put this restriction on him. I would think they would have to abide by the original terms of his contract, but like I said I know nothing of HOA's. I have always despised subdivisions or developments or whatever they may be called next week.

I don't understand having a HUGE house 10 feet away from your neighbor. Not saying that you do but most of them are.

 

[Mags]

what is to stop a future Board of Directors from enacting such a prohibition?

80 percent vote of all homeowners in the community to enact new rules.

I'm not familiar with HOA's. I have a question. If this policy was not in place when he purchased his home and signed his agreement wouldn't he have to sign a new contract in order for them to put this restriction on him.

Are charter states new rules must be enacted with a 80 percent homowner's vote so he could voice his opinion at the vote also to get 80 percent of the homeowner's in my community would be a helluva task. To remove a rule it just takes 80 percent of the board's vote. Each charter is different and based off of local laws.

For the question at hand the HOA can only put restrictions on property owned by the HOA such as the parks in a community.

 

[billwiese]

That Marine that lost his house because the HOA payments weren't paid? His friggin' idiot wife didn't make the monthly payments. It shouldn't have even been mentioned, it was irrelevant - same thing happens with water and gas bills.

That sign? In most HOAs (more likely townhouse/condo communities) you're not supposed to have signs in the windows.
HOAs usually back off if it's a US flag simply due to politics.


Anyway, the rule may have been passed because they thought UPS trucks were droping off/accepting gun packages. Perhaps Clement can win this one, esp showing a differential standard - Tupperware sales dropped shipped to customers from warehouses would not prohibited. Either they're gonna have to ban ALL work at home (no matter how quiet).

HOAs exist for a reason: neighborhoods go down fast.

Many HOAs and even some whole towns (Hillsborough, CA) ban just about any work at home that involves excessive visitor traffic or excessive package delivery. (Lawyers had problems working form home due to this.)
Way over a decade ago, some Silicon Valley software types that were selling software from their home offices got into snits with their HOAs because the FedEx and UPS trucks were showing up all the time - that's a nonissue now with web delivery of content, and Kinko's down the street for docs.

I live in a townhouse in an HOA. They mow the lawn, maintain the bldgs, take care of the roof,, etc. I like that - turnkey. When I had a noisy neighbor's kid's dog - I called the HOA and it solved the problem.

Most people bitching about the HOA never go to their meetings or try to get on the board. That's the way you stop problems.

If I thought my HOA were gonna try to ban guns (my development has public streets running thru it) I believe it would be time for 24hr a day open carry protests on the street

 

[LibShooter]

If you sign the HOA agreement, you should be as good as your word. If it says no guns, then no guns. If it says the board can change the rules any time, then they can change the rules any time.

Stuff like that is why I live out in the boon docks. My neighbors can't even see my windows... much less any sign in one.

 

[alsaqr]

Most licensed firearms dealers went away during the Clinton presidency because they ran their businesses from their homes. The ATF required the local jurisdiction sign off on the legality of running a firearms business from a home.

An HOA can do pretty much anything they want to.

 

[Mags]

An HOA can do pretty much anything they want to.

Uhh no, not if we want to pay a butt load of legal fees.

Example: A homeowner wanted to install a 16ftx 3ft antenna array on his home. We ultimately denied his request but we had to do our homework. Our HOA cannot be more strict than federal,state, county and city guidelines; so we had to research the guidance on what we could restrict the homeowner to. I researched FCC code and found that it specifically stated HOAs could not restrict an antenna smaller than 3ft by 1 ft.

 

[paul]

I think this falls under contract law...
If'n you sign the contract...

The person in question may have an out based on the "fact" that his contract does not contain the new clause.
P

 

[BK]

I'm sort of in the same situation. I'm a home based licensee and I live under the boot of an HOA. I used to be the VP of the board, but I resigned recently because I was the lone conservative voice amongst the directors and I just got tired of sitting there and watching them spend other people's money on the stupidest of things. We'll just move away and get some land where fewer people can tell us what we can and can't do.

Mags is showing his knowledge here. What he has posted is correct. The HOA has power, but not it is not so total and absolute. Major changes to the covenants have to go through a large portion of the homeowners.

 

[TheBookGuy]

When I was on an HOA board in California about 10 years ago, the HOA could not do make CC&Rs or rules that were MORE THAN the city or state codes or ordinances.
Thus, if the city code said no more then 3 animals per house the HOA could not say only 1 dog and it has to fit in a purse.

 

[Mad Man]

The HOA has power, but not it is not so total and absolute. Major changes to the covenants have to go through a large portion of the homeowners.

Changes to the CC&Rs (Conditions, Covenants, and Restrictions) usually require some type of super majority. Changes to other sets of rules (see the list below for examples) usually only require board approval.

As long as nothing in the law, nor the CC&Rs, prohibits an HOA Board of Directors from banning private gun ownership, then they probably can.

If you read the original story, it says

A lawyer who represents Falcon Pointe Association sent a statement to KEYE which said, "The Association enacted a prohibition against operating a home based firearms sales business and did so in the best interest of the residents in the neighborhood."

Neighbors said they did not receive any heads-up about the amendment to the existing rule on home-based businesses.

"I pay dues. I expect somebody to tell me something when you change something that major," neighbor Wayne Williamson said.

This indicates that the change in rules was not put to a vote of the homeowners.

Furthermore, an HOA can suspend a homeowners right to vote.

Barbara Hogan's "Handbook for Texas Legislators Relating to Homeowners' Association Issues" does an excellent job of defining the problem with HOAs.

Bylaws, on the other hand, should tell the board how to conduct the business of the association on behalf of the homeowners. Bylaws created by developers are grossly inadequate because developers must retain complete control of the HOA until they are ready to relinquish that control to a board of homeowners. The bylaws are intentionally written so the developer is not burdened with the usual procedures for approval or accountability to members. This causes inherent problems that are extremely difficult to change after the developer leaves. These problems include:

...

3. By default the board is given unlimited power

Some bylaws state that the board retains any power or authority not mentioned in the bylaws. This is saying that the members have no rights other than what is stated in the governing documents. Usually the only power given to the homeowners is the right to vote. The board is given the right to make binding contracts without approval, decide how violations are dealt with, determine rules and regulations of the amenities, how the funds are spent without limits, how meetings are conducted, what is disclosed to homeowners, what is placed on the budget, and on and on. Not only does the board have all these powers, they also have the right to change any decisions made by previous boards. The homeowners have no say in these matters after election votes are counted.


4. HOA Boards implement Policies, Standards and Guidelines without homeowner knowledge or approval

The need for policies, standards and guidelines are not in question. The problem is when the HOA board solely adopts these policies without homeowner knowledge or approval and files them with the county clerk. Since only the board adopts these policies, the board can also amend or revoke the policies at any time creating an unstable position for the homeowner. By filing these documents with the county clerk, it in essence creates new deed restrictions that homebuyers, from that time on, must agree to abide by when purchasing a home in that HOA.

Many of these policies are at the recommendation of management companies and HOA attorneys. One management company in Houston recommends to their clients the adoption of fifty policies. Some of the policies pave the way for management companies and HOA attorneys to work together without informing the HOA board, including filing liens and foreclosures.

Listed below are just some examples of policies, standards and guidelines.

· regulations on the use of amenities
· new architectural control standards
· interpretation of deed restrictions
· election process for board members
· procedure to replace board members
· procedure for voting on board members and ballot issues
· formation of "Nominating Committee" by HOA board to approve candidates for the board before elections
· procedure to collect unpaid assessments including an automatic process for legal action without HOA board approval
· procedure for applying late fees and interest on overdue assessments
· procedure to enforce deed restrictions including an automatic process for legal action without HOA board approval
· procedure for HOA attorney and management company to communicate directly without HOA board oversight
· procedure for obtaining bids for vendor contracts
· procedure for accepting and applying payments from homeowners


5. Voting privileges revoked

Most bylaws revoke voting privileges when a homeowner is in violation of a deed restriction or delinquent on their dues. The privilege to vote is at the core of our country's democracy. If an HOA is mandatory, it should not have the power to take away its members' right to vote under any circumstance. Management companies and HOA attorneys maintain that revoking voting privileges induces homeowners to keep their accounts current and free of violations. In reality, revoking amenity privileges is much more effective. Voting is a privilege that comes with ownership of property and should not be taken away. The mandatory HOA has a permanent lien on every property, which gives the HOA board inalienable and ultimate power over homeowners.

A tactic used at election time, with the help of management companies, is to send numerous deed restrictions letters so particular votes can be disqualified and not counted. Many homeowners never know their vote was disqualified.

If Mags' HOA is some type of ideal town hall democracy requiring homeowner approval to change any rule or commit to any contract, then it is an exception and not the norm.

 

[Art Eatman]

Unless we knows the setup of the charter of the OP article's HOA, we can't know from that squib if the guy is threatened or actually banned. We don't know if that particular HOA must have a super-majority vote to change the rules.

At this point, we're merely speculating from inadequate info. If somebody wants to monitor the deal and later on start a new thread, fine.