TheAgitator.com
Home is Where the Petty Restrictions Are
Thursday, August 14th, 2003My wife sent me this story about a guy whose homeowners’ association wouldn’t let him fly a UN flag in protest against the Iraq war. Seems to be tailor-made for a leftist critic of libertarianism: here is a private organization infringing on this poor guy’s free speech, right?
Well, yes and no. I react to this story in about the same way I’d react to a story of a private business engaging in racial discrimination: with a mixture of disgust and resignation. Disgust, because I strongly disapprove of the business’s behavior and would not patronize a business that acted this way. Resignation, because I know that they have a legitimate property right to do what they’re doing, and it’s wrong to legislate away their private choice.
There are two major reasons why letting this sort of thing go unchecked is a lesser evil than overruling it by statute:
1. Freedom of contract is an important part of liberty, too. People buying in to an association like this sign away some of their rights explicitly and voluntarily. They can’t really claim that they haven’t read the fine print– if buying a house isn’t an occasion when people should know to read the fine print, what the heck is?
Also, they accept these restrictions individually, not by majority vote. And they do so in exchange for living in an environment they like better than the alternatives. If we don’t respect the terms of these contracts, we interfere with everyone’s ability to make voluntary arrangements to improve their lives.
2. A homeowner’s association is a local institution, and as such is much easier to change than a state or federal government. If the association you live in makes a bad rule, you can go knock on the doors of the people on the association board and express your displeasure personally. You can organize your neighbors to do the same, and it doesn’t take very many to have an impact.
This actually happened in the association I live in. When the board decided to change from dumpster-based trash collection to individual cans outside each home, they decreed that people would not be allowed to store the cans out front between pickup days. They further decreed that people who didn’t want to lug the cans back and forth all the time could just put their trash out in bags.
This is idiotic, because trash left out in bags is a health hazard, it attracts animals, and it’s much more unsightly than cans sitting out front all the time. So a bunch of my neighbors went to the board and got them to stop implementation of the new rules. Simple, easy, not time-consuming at all.
Try doing that with, say, some idiotic state environmental regulation. Maybe you can make a change if you’re really motivated, know a lot about political activism, and are willing to devote yourself full-time to making an outcry. But the level of involvement required is much higher and the chance of success much lower.
I hope this guy can do the same in his association. I’d be out there helping him if I were his neighbor. But I wouldn’t support him going to the state legislature to get him out of a contract he freely signed.
UPDATE: The left-wing blogger Ampersand has a different take on this same story, with links to others. Will Baude has a particularly good response.
The roots of the disagreement are, I think, pretty typical lefty/libertarian philosophical differences. We libs are more likely to believe that negative liberty is more important than positive entitlement, and private property more legitimate than majoritarian collectivism. There are interesting and nuanced debates to be had about these differences, but they ought at least to be pointed out more explicitly.
Radley —
On the one hand, you’re right that freedom of contract is quite sensibly in play here. But you miss one of the real dangers of the mechanism of homes with restrictive covenants attached to their deeds.
That’s the danger of legal pollution. Since most deed conditions are written such that they will attach to the house until the end of time, they form at best a sort of legal pollution bound to accumulate until no-strings-attached homes are an exceedingly scare commodity. At worst, they will form a reverse tragedy of the commons, in which even the simplest act of home repair can be vetoed by the lawyers of a dozen people you’ve barely met.
While private choice and freedom of contract are fine, the attachment of a permanent condition to a piece of property with no way of removing it before the heat death of the universe is wasteful, inefficient, antisocial, antimarket, and simply a bad idea all around.
–G
I didn’t know Radley was spelled “N-I-C-K”. Grant has a valid point. However Nick brings up a very contemporary issue. YOU NEED TO LOOK @ THE CONTRACT (or think of the consequences) for the collective you are joining. You have to realize who the collective is you are joining. With so many ideologues out there, you have to block out their prerecorded message and ask for starters-
1) Are you going to like what they stand for?
2) Can you abide by their laws?
3) Do their women have pulchritude?
This goes for homeowners’ associations, religions, professional societies, and gaming guilds. Ultimately this is why I am drawn back to the rural communities of my childhood. The lower the population density, the higher the freedom. No need to worry about waving the original 13 stars like my family does when the neighbors are deer, bears, and vicious fishers.
there is one way to beat the contract. a house in my neighborhood wanted to put in a pool which was restricted by the association. so the house threatened to sue the association with high paid lawyers and run up the costs. the association quickly caved in, each member not wanting to pay a share of massive court fees/lawyers.
as a possible libertarian i’m not sure how to look on this… is this capitalism at work? or is this an attack on rule of law?
Was the “no-pool” clause written into a contract the homeowner signed?
Grant: yeah, I agree that perpetual restrictive covenants are bad. But that’s kind of beside the point here. The issue at hand is a rule which the association set and which it can change if it wants to.
I lived in a community with an association. The bylaws book was an inch and a half thick and about 20 years old, with a few amendments tossed in on loose leaf paper. It was abysmal. We could only buy one of two kinds of screen doors, had to have a certain style privacy fence, built by a certain company. The windows had to be a certain kind and only one unresponsive company was permitted to change them if there was a problem. Needless to say, my wife and I took the easy road and left.
I see the point of such associations in keeping a neighborhood nice. But when they tell me that my house basically belongs to them, all I can do is vote at meetings and my neighbors dont care one way or the other, I exercised my American right of choice and told them to stick it. It took two years for that house to resell… wonder why…
C — the bylaws said no pools since there was a neighborhood pool.
I think that the whole condo-commando thing is going to backfire eventually and will serve to devalue units in associations and condos and etc.. when that day happens, however will be a different story.
When I lived in a condo, I broke all the rules. I landscaped around my unit, added archetectual lighting. Upgraded the porch lights. The result. A better looking condo than anybody else. And, I got a higher price for it than any of the other owners. Nobody seemed to mind the improvements. Most associations are pretty lienient.
but what was did the contract state in this case?
he was already displaying a u.s. flag. He took it down and replaced it with the un flag.
does the contract state which flags can be displayed? I just can’t believe that the contract would state the permissable flags.
Isaac- I’d say that’s sad. If a person willfully enters into a contract (regardless to if he reads it or not), then he or she is obliged to honor it. At least I believe that’s the law. I could be wrong these days. I’m not a lawyer.
The moral of the story seems to be you are responsible, unless you can spend your way out of it. Then again the bylaws seem absurd, but that’s no reason to let a moron get out of a situation he or she got himself into.
Covenants and busybody homeowners associations stick in my craw and I’d avoid them at all costs, but i have sympathy for those who’d get stuck in a fix when they bought a house they loved in a great spot and figured it would be OK, then later got surprised when the assoc got taken over by a bunch of tightpipes. I’m not especailly troubled by reasonable and sensible appearance restrictions. But regardless of private property rights, people deserve some protection from arbitrary and capricious rule by the burghers of Elm st. Some sort of pettty home-owner’s assoc dispute will end in ugly violence one day, and it will be because people aren’t very good at minding their own business, and loving their neighbors enough to cut them a little slack. Don’t even get me started on the huge gray area that constitutes a contract “freely” entered into….
Yes anonymous poster. Let’s protect people from their own stupid selves. We need more paternalism in government to prevent impulse and emotion… Oi vey. Is self responsibility dead?
Anon @ 2:23 PM,
Perhaps a possible solution to prevent future encroachments on property owners who agree to join an HOA but fear that the rules might later change for the worse is an extremely difficult to change Bylaw Constitution. For example, Amendment #2 to the Bylaw Constitution might read,
“A well regulated Porch, being necessary to the beautification of a free Home Owner’s Association, the right of the neighbors to keep and bear Flags, shall not be infringed.”
What could possible go wrong with something like that?
I know this is an old thread, but you’ll probably want to see this:
http://www.onthecommons.com/
There are dozens of audio programs on mandatory homeowners associations, discussing the issue from all sides (city planner, homeowner, association president, lawyer, realtor, novelist, civil libertarian, etc.).
Richard Oulton is one of the special guests (see http://www.americanflagtrial.com/ for his case).
It’s rather interesting for me..
http://nipple-rings-bear.skidman.com
http://grateful-dead-belly-button-rings.skidman.com
Did I find the right place? I have an association that requires a fence to park a boat. While this somewhat makes sense, my issue is that I live on a corner lot and with city restrictions on the height of the fence on a corner, I cannot put up a 6ft fence without basically giving up several feet of my lot. I put in a request for sort of an exemption from this restriction and I was planning on pouring a driveway extension to the side of my house without a fence. I sent in pictures of similar set ups in more upscale neighborhoods, proved that it would not hurt property values and proved that this could be done without looking unsightly to the neighborhood. My boat looks better than many cars in the neighborhood but I was still denied.
How can I fight this or what steps can I take to try to get this restriction amended??? Any guidance would be appreciated