Guest Opinion: It’s time HOAs had some oversight

Published 3:26 am Wednesday, April 5, 2023

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By David Larson

In a nationwide survey of Yelp reviews on homeowners associations, Raleigh tied for the city with the lowest ratings. Yelp’s lowest rating is 1 star out of 5, and Raleigh’s HOAs averaged 1.00 stars.

Dissatisfaction with HOAs can cover a wide range of topics: from micromanaging the appearance of a member’s property, to increasing fees, to foreclosing homes, to failure to enforce rules, to disagreement on how to manage common areas.

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One recent Charlotte Observer article told the story of a woman who said she didn’t even know she was in an HOA but had her house foreclosed on for being behind on dues.

In Brunswick County, a group of retirees complained to their N.C. House representative, Republican Frank Iler, after their HOA dues rose from $900 to $2,280, according to the Wilmington Star News. The board had decided to build a $13 million amenity center, and the residents didn’t feel like they had enough say in the process.

Iler told them that at the moment there is not any oversight body that regulates HOAs in North Carolina, even though they have power similar in some ways to local governments, who are overseen by the Local Government Commission.

So Iler did something about it and filed House Bill 311, Community Association Oversight Division, which was referred to the House Judicary I Committee on March 9. The bill would set up an oversight division where citizens could take complaints. It would hold HOAs accountable to state laws regulating their activities. The fact that Iler’s co-sponsors are Democrats should signal that this is a bipartisan concern.

Is that enough?

Sometimes when I think of HOAs, a certain line from Mel Gibson’s The Patriot comes to mind. Gibson’s character, Benjamin Martin, is on the fence about whether to join the rebellion or remain a loyalist and asks his fellow South Carolinians, “Why should I trade one tyrant 3,000 miles away for 3,000 tyrants one mile away?”

HOAs certainly serve a purpose, often a similar one to municipal government, eliminating free riders from community benefits like parks, roads and other common amenities by requiring a little contribution from all. They are a hyperlocal government of sorts, and there is a good conservative impulse to favor control that is local over that which is further away. The closer control is to the individual, the more able he is to keep it accountable.

But there are countless examples of tyrannical tribal chiefs, family patriarchs and other hyperlocal leaders, so it’s not a guaranteed path to freedom. Martin’s worry about local tyrants, which was really a quote from loyalist New Englander Matthew Byles, is a very valid concern.

That’s why the founders were wise to put a lot of stock in individual liberty, because, although a man can become a slave to his own passions, he is most accountable to himself. This is where I believe HOAs need a bit more tweaking beyond simple oversight. Their ability to make decisions about people’s property often impedes on what should be left to individual choice.

I’m lucky to have an HOA with very dedicated, friendly neighbors who are receptive to feedback, but even so, the covenant, as most of them do, micromanages many aspects of the homeowner’s property and is extremely cumbersome to change. One resident built a shed that was a little larger than the dimensions in the covenant (which was written long before most residents moved in). Nobody seemed to care, but getting the right language to amend the shed clause and then getting that language approved (including convincing enough people to attend to create a “quorum”) has taken many meetings over the better part of a year.

HOAs tell residents what kind of windows, what color shutters, what type of siding, how much of a setback, what kind of landscaping, what fence style, whether or not they can have chickens or a garden, whether they can have a pool, how many parking spaces and what size garage they must have, to name only a few things.

At this point, is it really my property? This control is often justified by saying that it protects the value of the property by eliminating bad style choices. I suppose if someone meticulously picked out a closet full of designer clothes for me to wear, kept them in my closet and used my credit card to buy them, they’d be “mine,” but my sense of ownership over them certainly would be diminished. Telling me, “We have to dress you in these specific colors and styles so that you don’t make the rest of us look bad,” wouldn’t really make me feel much better about the situation.

In common law, there has always been a right to “enjoyment” of one’s home without nuisances. Things like loud noises and noxious odors are commonly listed as violations of this right. Having a handful of hens wouldn’t be seen as impacting those nearby enough to violate their enjoyment, but increasing their number could create noxious odors and adding roosters could create loud noises. This is why full-scale agriculture is generally kept out of the city limits.

That all seems reasonable. But if your neighbors say their enjoyment is impacted by your style of fence or windows, they are taking that principle beyond any balance. Growing up, the parents of one of my friends sued the parents of another because by building a second-story addition, they had “ruined the sunset.” But we don’t have a right to see a beautiful sunset looking past the bounds of our property any more than we do beautiful shutters. Sometimes freedom is messy, and somebody down the street might be trying to fix up their car, or a widow might not mow her lawn as much as we’d like.

Maybe the biggest overreach by HOAs in my mind is that they almost always limit property usage only to single-family housing. This eliminates anything interesting from being built and leaves us with cookie-cutter houses with the same colors and styles. If there’s an empty lot at the end of the street, why can’t the owner build a little ice-cream shop for the kids to walk to, or even better, a coffee shop or pub where the adults can congregate? Maybe someone will even build a little accessory dwelling unit (backyard cottage, granny flat, garage apartment, etc.) and rent it out. Seems like that wouldn’t be my business.

Free the homeowners

Some might say, “Well, you shouldn’t have bought the house if you didn’t want to follow these rules.” But in a market where immediate bidding wars ensue and houses are available for less than a day, one can’t really be choosy about each point in the HOA covenant. It becomes sort of like the box you check to “agree with the terms and conditions” when you get a new device. Whether you chose a PC or Mac, you probably didn’t read the agreement, nor were your options very good if you decided not to. Use Linux?

So, while HOAs do have a valid purpose of managing common areas, more oversight is certainly needed into what they are doing beyond that. Should they be allowed to ban all uses but single-family zoning? Should they be able to control how many cars you can have in the driveway or what kinds of trees can be planted in the yard? Even King George wouldn’t have dared meddle to that degree. We’ve successfully overthrown the one tyrant 3,000 miles away; now it’s time to address the 3,000 that are one mile away.

David Larson is the opinion editor for the Carolina Journal.