Should Home Owner Association be considered as State Actors and subject to 1st Amendment restriction

[David Hume]

Say I want to paint my wall with a large Ukraine flag to show support. This may be against the rules of Home Owner Association, as they want some uniform colors. If Home Owner Associations are considered as State Actors, such rules clearly violate my freedom of expression. However,

As we have seen, homeowners associations’ ability to restrict political activities is not limited by the First Amendment because HOA’s are not “state actors.”

https://www.hopb.co/blog/freedom-in-associations-exercising-free-speech-rights-in-an-hoa#:~:text=As%20we%20have%20seen%2C%20homeowners,associations%20to%20restrict%20political%20activities.

I personally find the HOAs and self-organized local governments are quite similar, so should be subject to 1st Amendment. On the other hand, I am sympathetic to homeowners who want to avoid the neighborhood looking too chaotic. What do you think?

[David Hume]

I lean towards no, but I could see an argument for either yes or no here.

I am very surprise no case like this has reached SCOUS, and I am very interested in how they would rule.

[David Hume]

I lean towards no, but I could see an argument for either yes or no here.

I am very surprise no case like this has reached SCOUS, and I am very interested in how they would rule.

HOAs aren't governments (though they have many government-like powers, and are more akin to local governments than to the free associations that they theoretically are), and thus aren't subject to the First Amendment. In theory, you could move to a community without an HOA, or with an HOA that only has minimal or no by-laws, but good luck finding one in a lot of places.

The systemic/structural answer to this type of thing is to restrict what HOAs can require of residents. There are already at least some such restrictions: an HOA can't ban the display of the American flag, for example, and they also can't enforce by-laws that result in discrimination based on race, gender, or other protected characteristics.

What's the legal basis that differentiates HOAs and local governments?

[David Hume]

I lean towards no, but I could see an argument for either yes or no here.

I am very surprise no case like this has reached SCOUS, and I am very interested in how they would rule.

HOAs aren't governments (though they have many government-like powers, and are more akin to local governments than to the free associations that they theoretically are), and thus aren't subject to the First Amendment. In theory, you could move to a community without an HOA, or with an HOA that only has minimal or no by-laws, but good luck finding one in a lot of places.

The systemic/structural answer to this type of thing is to restrict what HOAs can require of residents. There are already at least some such restrictions: an HOA can't ban the display of the American flag, for example, and they also can't enforce by-laws that result in discrimination based on race, gender, or other protected characteristics.

What's the legal basis that differentiates HOAs and local governments?

HOAs are voluntary membership organizations.  You agree to join an HOA when you buy a house/condo, if you already own your home when a new HOA is established you are generally permitted to opt-out.

Say there is a remote and small village with a self organized government. If I purchase a house there voluntary, I am subject to the local laws like paying certain amount of tax. So What's the differences with HOA?

[David Hume]

HOAs are created by land covenants in deeds. Think of it as like a contract requirement. In order to practice law, I have to affiliate with the bar, which is basically a private group.

Land covenants are a lot like easements in that it is a right to do something (or not do something) with private land that is less than an ownership interest. A cable company has an easement to install and repair cable on your land and you cant deny them access, but you still own the land. If u later sell, the easement sticks with the land because u gave that right up.

HOAs have to be voluntarily agreed to at least at first. A developer will own a big piece of land, subdivide it into 20 lots, and then upon selling the individual lots the buyers agree in the deed to abide by a newly created HOA. So basically the first seller is selling a less than full interest in land. This binds future landowners because the HOA covenants are recorded in the deed and therefore a new buyer has notice that he is obtaining the property subject to those restrictions. Basically, if I can own land I can agree to sell all of it with all rights or just some of the rights. U can sell water or timber or mineral rights without selling the whole property, u can sell access easements allowing someone to cross ur land without selling the whole property, and so u can also sell covenant rights that land will or wont be used in a specific way. So when a later buyer acquires the land, they arent technically getting the fullest, maximum title to the land as the seller does not own the fullest, maximum title ... they only own the land subject to the divested covenant rights.

Covenants are more common than youd think. Condos have covenants and common wall agreements. Houses can have shared use driveways or alleys with joint maintenance covenants. When we loan HUD money for low income rehabs we have to record covenants that the house will only be used by low income people for a period if time. We also sell houses with covenants requiring rehabs within a fixed time period, home owner occupancy, rights of first refusal to repurchase, etc.

Covenants can be proscribed by law. Thats why racial covenants are unconstitutional. Additionally there is a federal law that has been upheld prohibiting HOAs from banning display of the American flag.

Its a complex issue as far as freedom, as if u own land u should have the right to only sell some of your bundle of rights. Its not fair to sell timber rights to Sally then sell the land to Jane and have Jane nullify the timber deed because "its my land now". Technically its not because u only purchased the land subject to the HOA covenants. That being said, im not a fan of HOAs and would not purchase a home subject to one. But again, thats my choice.

Thanks for your explanation. But for the case I mentioned above, say there is a remote and small village with a self organized government. If I purchase a house there voluntarily, I am subject to the local laws like paying certain amount of tax. So What's the differences with HOA?

[David Hume]

HOAs are created by land covenants in deeds. Think of it as like a contract requirement. In order to practice law, I have to affiliate with the bar, which is basically a private group.

Land covenants are a lot like easements in that it is a right to do something (or not do something) with private land that is less than an ownership interest. A cable company has an easement to install and repair cable on your land and you cant deny them access, but you still own the land. If u later sell, the easement sticks with the land because u gave that right up.

HOAs have to be voluntarily agreed to at least at first. A developer will own a big piece of land, subdivide it into 20 lots, and then upon selling the individual lots the buyers agree in the deed to abide by a newly created HOA. So basically the first seller is selling a less than full interest in land. This binds future landowners because the HOA covenants are recorded in the deed and therefore a new buyer has notice that he is obtaining the property subject to those restrictions. Basically, if I can own land I can agree to sell all of it with all rights or just some of the rights. U can sell water or timber or mineral rights without selling the whole property, u can sell access easements allowing someone to cross ur land without selling the whole property, and so u can also sell covenant rights that land will or wont be used in a specific way. So when a later buyer acquires the land, they arent technically getting the fullest, maximum title to the land as the seller does not own the fullest, maximum title ... they only own the land subject to the divested covenant rights.

Covenants are more common than youd think. Condos have covenants and common wall agreements. Houses can have shared use driveways or alleys with joint maintenance covenants. When we loan HUD money for low income rehabs we have to record covenants that the house will only be used by low income people for a period if time. We also sell houses with covenants requiring rehabs within a fixed time period, home owner occupancy, rights of first refusal to repurchase, etc.

Covenants can be proscribed by law. Thats why racial covenants are unconstitutional. Additionally there is a federal law that has been upheld prohibiting HOAs from banning display of the American flag.

Its a complex issue as far as freedom, as if u own land u should have the right to only sell some of your bundle of rights. Its not fair to sell timber rights to Sally then sell the land to Jane and have Jane nullify the timber deed because "its my land now". Technically its not because u only purchased the land subject to the HOA covenants. That being said, im not a fan of HOAs and would not purchase a home subject to one. But again, thats my choice.

Thanks for your explanation. But for the case I mentioned above, say there is a remote and small village with a self organized government. If I purchase a house there voluntarily, I am subject to the local laws like paying certain amount of tax. So What's the differences with HOA?

Governments retain the 4 sovereign powers over land: taxation, police power, eminent domain, and escheat. It is not possible to own land here without being subject to these restrictions. These qualify as state action subject to the Bill of Rights.

Covenants, like those establishing HOAs, are voluntary, insofar as they are required by a private land owner as a condition of someone else buying land. Not all land is subject to covenants. Just like you can agree by contract not to sue, or to a nondisclosure agreement, or to not make comments harmful to the reputation of your employer, you can agree to not maintain land subject to an HOA in a certain way. The right to enforce the covenants is a private right; a private party must sue in civil court if you breach rather than the police charging you with a crime. Therefore, an HOA is no more a state actor, than is say Dow chemicals if they sue you for breaching a nondisclosure contract or Spotify were they to fire Joe Rogan for saying stuff that harms Spotify's reputation in violation of a contract. Because the restriction on your "right" to do something with your land has been voluntarily contracted away to a private party with only a private right of action to enforce and no criminal charges, an HOA is not a state actor. HOAs have not been delegated government powers. Again the relationship between HOA and landowner is a private relationship created by voluntary contract.

Do self-organized local governments have all these 4 powers, especially eminent domain, and escheat? I know some major Universities like U Chicago and Cornell have their own police. I am not sure if a large HOA can establish a police department, if it is in a dangerous district like U Chicago. For taxation, they can collect annual fees through contracts when someone signs.

My point is still, signing a contract to buy a house in a community voluntarily means agreeing to subject to the terms related with HOA. But signing a contract to buy a house in the district I described voluntarily means means agreeing to subject to the terms by the local governments. You can choose not to buy a house within that HOA, same as you can choose not to buy a house within that local government. In some sense, a self organized local government in a remote area is basically a group of private citizen organize themselves by contract. I still don't see the essential difference from a HOA.

[David Hume]

HOAs are created by land covenants in deeds. Think of it as like a contract requirement. In order to practice law, I have to affiliate with the bar, which is basically a private group.

Land covenants are a lot like easements in that it is a right to do something (or not do something) with private land that is less than an ownership interest. A cable company has an easement to install and repair cable on your land and you cant deny them access, but you still own the land. If u later sell, the easement sticks with the land because u gave that right up.

HOAs have to be voluntarily agreed to at least at first. A developer will own a big piece of land, subdivide it into 20 lots, and then upon selling the individual lots the buyers agree in the deed to abide by a newly created HOA. So basically the first seller is selling a less than full interest in land. This binds future landowners because the HOA covenants are recorded in the deed and therefore a new buyer has notice that he is obtaining the property subject to those restrictions. Basically, if I can own land I can agree to sell all of it with all rights or just some of the rights. U can sell water or timber or mineral rights without selling the whole property, u can sell access easements allowing someone to cross ur land without selling the whole property, and so u can also sell covenant rights that land will or wont be used in a specific way. So when a later buyer acquires the land, they arent technically getting the fullest, maximum title to the land as the seller does not own the fullest, maximum title ... they only own the land subject to the divested covenant rights.

Covenants are more common than youd think. Condos have covenants and common wall agreements. Houses can have shared use driveways or alleys with joint maintenance covenants. When we loan HUD money for low income rehabs we have to record covenants that the house will only be used by low income people for a period if time. We also sell houses with covenants requiring rehabs within a fixed time period, home owner occupancy, rights of first refusal to repurchase, etc.

Covenants can be proscribed by law. Thats why racial covenants are unconstitutional. Additionally there is a federal law that has been upheld prohibiting HOAs from banning display of the American flag.

Its a complex issue as far as freedom, as if u own land u should have the right to only sell some of your bundle of rights. Its not fair to sell timber rights to Sally then sell the land to Jane and have Jane nullify the timber deed because "its my land now". Technically its not because u only purchased the land subject to the HOA covenants. That being said, im not a fan of HOAs and would not purchase a home subject to one. But again, thats my choice.

Thanks for your explanation. But for the case I mentioned above, say there is a remote and small village with a self organized government. If I purchase a house there voluntarily, I am subject to the local laws like paying certain amount of tax. So What's the differences with HOA?

Governments retain the 4 sovereign powers over land: taxation, police power, eminent domain, and escheat. It is not possible to own land here without being subject to these restrictions. These qualify as state action subject to the Bill of Rights.

Covenants, like those establishing HOAs, are voluntary, insofar as they are required by a private land owner as a condition of someone else buying land. Not all land is subject to covenants. Just like you can agree by contract not to sue, or to a nondisclosure agreement, or to not make comments harmful to the reputation of your employer, you can agree to not maintain land subject to an HOA in a certain way. The right to enforce the covenants is a private right; a private party must sue in civil court if you breach rather than the police charging you with a crime. Therefore, an HOA is no more a state actor, than is say Dow chemicals if they sue you for breaching a nondisclosure contract or Spotify were they to fire Joe Rogan for saying stuff that harms Spotify's reputation in violation of a contract. Because the restriction on your "right" to do something with your land has been voluntarily contracted away to a private party with only a private right of action to enforce and no criminal charges, an HOA is not a state actor. HOAs have not been delegated government powers. Again the relationship between HOA and landowner is a private relationship created by voluntary contract.

Do self-organized local governments have all these 4 powers, especially eminent domain, and escheat? I know some major Universities like U Chicago and Cornell have their own police. I am not sure if a large HOA can establish a police department, if it is in a dangerous district like U Chicago. For taxation, they can collect annual fees through contracts when someone signs.

Local government exercises only delegated power from the state. Counties, cities, etc., are not sovereign or "self-organized," except to the extent that the state chooses in its absolute discretion to listen to the local populace when deciding how the locality will be governed.

Likewise, a private entity like a university can only exercise police powers if/when/where/how the state chooses to delegate that power. University police departments are very common, but I've never heard of a state allowing an HOA to have its own police department. (There are one or two states where you can be commissioned as sort of an independent police officer and contract yourself out to entities like HOAs.)

So if the state delegate those powers like police and taxation to a private university, can it be considered as a state actor?

[David Hume]

No, but they shouldn’t have any way to enforce rules on private property. All they should be able to do is maintain the community’s common areas and nothing else. Shovel the sidewalks, mow the park’s grass, and GTFO.

They can fine those who breaks the rules, and keep adding interest if no payment. When the amount is large enough, they can sue.

[David Hume]

No, but they shouldn’t have any way to enforce rules on private property. All they should be able to do is maintain the community’s common areas and nothing else. Shovel the sidewalks, mow the park’s grass, and GTFO.

They can fine those who breaks the rules, and keep adding interest if no payment. When the amount is large enough, they can sue.

Well, its less a fine more like liquidated damages in a contract case. Fine implies criminal.

I think you are right. The essential difference of HOA and self organized local government in a remote area is whether the state has delegated the power of enforcement to them.