On the Commons with Evan Mckenzie
The post war boom brought with it growth, wealth and seemingly unlimited possibilities. Cars and highways made it possible for families to move out to the suburbs in pursuit of the American Dream. Along with that dream came financial problems for local municipal governments. The solution, residential associations, then created a whole host of other problems that seem to be getting worse instead of better. HOA living has long been called a failed experiment but despite its many inherent flaws, the last several decades have seen an unstoppable growth in this type of housing.
In his highly influential first book, “Privatopia: Homeowner Associations and the Rise of Residential Private Government”, Professor McKenzie chronicled the early years of this new form of housing. Now, almost two decades later comes the much awaited “Beyond Privatopia: Rethinking Residential Private Government”.
Joining us On The Commons is Professor Evan McKenzie. Evan is a political Science Professor at the University of Illinois at Chicago, he teaches law at John Marshall Law School, is a practicing attorney, a blogger and in his spare time writes books and articles and gives TV and radio interviews. We’ll talk about the evolution of HOAs, what they have been defined as and what they really are.
In his highly influential first book, “Privatopia: Homeowner Associations and the Rise of Residential Private Government”, Professor McKenzie chronicled the early years of this new form of housing. Now, almost two decades later comes the much awaited “Beyond Privatopia: Rethinking Residential Private Government”.
Joining us On The Commons is Professor Evan McKenzie. Evan is a political Science Professor at the University of Illinois at Chicago, he teaches law at John Marshall Law School, is a practicing attorney, a blogger and in his spare time writes books and articles and gives TV and radio interviews. We’ll talk about the evolution of HOAs, what they have been defined as and what they really are.
Download | Duration: 00:57:37
Beginning around 33 minutes to about 38 minutes, Ms. Bartholomew and Professor McKenzie talk about appearance of homes, and how the HOA industry has sold the idea that enforced uniformity of appearance preserves property values.
From the New York Times (May 14, 2011, via Instapundit):
For decades, Saddam Hussein’s government ruled over aesthetics in Iraq’s capital with the same grip it exercised over its people. A committee of artists, architects and designers approved the color of buildings as well as the placement of shrubs. With many beige brick buildings, and color used sparingly — most often on mosques — the city’s appearance was uniform and restrained.
But the committee, like Mr. Hussein’s government, fell apart after the United States invasion in 2003. Some years later, when Iraqis started rebuilding as the violence declined, there was no central arbiter. Bright colors started appearing, and places like the Trade Ministry were done up in pink, orange and yellow.
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At the risk of being compared to those S.D.S. radicals…
Professor McKenzie has done a tremendous service for homeowners in his studies and publications about this issue. Without him, I'm not sure I ever would have learned of the work of Shu Bartholomew, Adolf family in Texas, Robert Metcalf, etc. His past as an HOA lawyer lends extra credibility to his work and his criticism of the institution. He has done the work that self-proclaimed advocates of individual private property rights should be doing.
That being said, here's the "but"
But, even though he has acknowledged that the current regime is not sustainable, he seems to believe that the inherent problems can be solved by educating board members. And that HOAs can be reformed enough to make them work.
The positions of the homeowners and the industry professionals are irreconcilable. Reforms like "education" or prohibiting only non-judicial HOA foreclosure (while still allowing HOA foreclosure) won't change that.
As somebody who favors the abolition of HOAs, sometimes listening to Professor McKenzie is like living in an alternate universe where Ronald Reagan went to Berlin and said, "Mr. Gorbachev, lower this wall!"
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After thinking about my comment, I think a better way to phrase it would have been:
HOAs are an unsustainable and unworkable system. Yet Professor McKenzie, who has contributed more to the scholarly body of knowledge on the subject than anyone else, seems to be concerned about how to save HOAs. It appears to me that he has completely ignored the prerequisite question: Should HOAs be saved? If so, why?
I understand his position that HOAs have become entrenched over the past 20 - 40 years. Yes they have. But that is not a reason to treat them with some special deference, as though they are "too big to fail."
As Robert Metcalf wrote in his "Position Statement On Common Interest Developments", institutional racism was just also entrenched in our culture:
"The Civil Rights movement of the 1950s and 1960s comes to mind. Along with the more visible public transportation and right to vote issues, seventy-five years ago it was common for deed restrictions to forbid the sale of properties based on the perspective buyer’s race. Today the idea of such a practice is abhorrent to virtually everyone, so much so that the elimination of such restrictions attained the lofty legal status of becoming public policy...Make no mistake; this is as much a battle for civil rights as what occurred in the 1950s and 1960s."
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I think what Prof.McKensie was saying was that "getting" the legislature to abolish CIDs would be next to impossible at this time.
Further,the folks who advocate abolishment,and only abolishment,throw a wrench in the works for those working for the reform that is desperately needed.
If you have ever been to the state house to testify for any meaningful protections, you would know that the Committe on Housing (here in Massachusetts)would just LOVE to dismiss you as wanting something they have no power to give.
Frankly,(in my own humble opinion) we should strip these CIDs of their absurd power, and get 'real' state oversight and protections to homeowners enforced by the Attorney General.
Then by all means, press to abolish the system!
Lets get our nose in the tent first!
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"Frankly,(in my own humble opinion) we should strip these CIDs of their absurd power, and get 'real' state oversight and protections to homeowners enforced by the Attorney General."
Or www.righttoown.org/
THE RIGHT TO OWN YOUR OWN HOME
"Right To Work" laws are based on the idea that mandatory membership in a labor union as a condition of employment should be prohibited by law.
The "Right To Own Your Own Home" is based on the idea that mandatory membership in an HOA union as a condition of home ownership should also be outlawed.
Contract Requiring or Prohibiting Homeowners Association (HOA) Membership Void
A contract is void if it requires that, to own a home, homeowners or applicants for home ownership:
(1) must be or may not be members of an HOA ; or
(2) must remain or may not remain members of an HOA.
The Right-To-Own-Your-Own-Home would allow homeowners to opt-out of the association at any time, without fear of having to give up their home.
This proposal is not a radical idea; it is based on existing law.
Compare the existing law prohibiting mandatory membership in a labor union as a condition of employment with the proposed law prohibiting mandatory membership in an HOA union as a condition of home ownership:
Contract Requiring or Prohibiting Labor Union Membership Void
A contract is void if it requires that, to work for an employer, employees or applicants for employment:
(1) must be or may not be members of a labor union; or
(2) must remain or may not remain members of a labor union. (Enacted 1993.)
source: Texas Codes Title 3 § 101.053.
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"I think what Prof.McKensie was saying was that 'getting' the legislature to abolish CIDs would be next to impossible at this time. Further,the folks who advocate abolishment,and only abolishment, throw a wrench in the works for those working for the reform that is desperately needed."
We should all be grateful for the work that McKenzie has done in exposing the problems with HOAs.
But what reforms has he actually ever proposed or supported?
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Would be interested how my HOA has a right to demand quarterly payments higher than the actual yearly budget requirements. I was helped in the past finding a Va. State Supreme Court decision that disallows and levy, fine, assessment etc. by any orginization other than a government entity. If this is true then I wonder about the legality of the escrow account at my HOA in the $250,000 range. Seems to me this is an illegal taking and should redisbursed pro-rata to the individuals that have for years been taken for these funds.
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The next time you have the Good Professor on your program, please press on him to defend why he supports the rights of HOAs to foreclose.
See his recent comments (January 2012) at
privatopia.blogspot.com/2012/01/homeowners-association-pursues-extreme.html
Simply repeating the industry talking point that an inability of HOAs to foreclose harms homeowners is not a satisfactory explanation (and I consider McKenzie's $1,000 threshold to be a trivial amount *). We've all heard that line before from Tom Skiba and John Carona.
If HOAs cannot survive without such draconian powers -- and it's doubtful whether their failed business model can survive with such powers -- then perhaps the discussion shouldn't be "How do we save HOAs" but "Why should we save HOAs?" and "How do we protect individual homeowners?".
There's a lot of ideas on how to reform and regulate HOAs for the benefit of the homeowners. Personally, I'm not optimistic for too many reasons I don't have space for here.
But if the reform movement can't even draw a simple line in the sand that says "no foreclosure by HOAs, period" then we might as well give up, because we can never own our own homes. In the minds of many policy makers and pundits, including Professor McKenzie, HOAs are too big too fail.
* While $1,000 isn't a trivial amount for me, it's a ridiculously small amount to take somebody's $300,000 house for. Michael Clauer's house was stolen to collect $800 in assessments (before the lawyer fees were added), which is just short of Professor McKenzie's $1,000 threshold.
$1,000 is only 4 months assessments in my HOA. It doesn't take long for a homeowner on hard times to reach that threshold. But according to Professor McKenzie, that's a good enough reason for an HOA to foreclose.
And in 1979, the FDCPA imposed a $1,000 fine on collections agencies. While that may have been enough to deter unscrupulous practices in 1979, it does not today (based on my personal experience with my HOA).
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