This post appears here courtesy of the Carolina Journal
. The author of this post is Daniel Gibson
Imagine opening your mailbox one blustery December morning to find a letter from your homeowners' association. For a passing moment, you think it may be a Christmas card. Your naive hopes are dashed when you open it. No, they are fining you $100 a day for putting up a cross at Christmas time. Crosses aren't an approved Christmas symbol. Santa? Fine. Reindeer? Great. A creche? Maybe. A cross? You've spoiled Easter's surprise.
This might be funny if it hadn't already happened to one Raleigh man. Mullberry Park HOA "does not consider [a cross] a Christmas decoration, but Easter/Passover seasonal decoration." The HOA threatened a $100 fine every day the cross stayed up.
This incident shows two threats homeowners' associations pose in North Carolina.
First, the right to worship. I can already hear my lawyerly brethren muttering that you don't have rights against corporations. This sort of argument is the last defense of someone who believes the government gives you the right to worship. If you believe, as our state constitution declares, "[a]ll persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences," then your right to worship comes from God. It follows that "no human authority shall, in any case whatever, control or interfere with the rights of conscience." No one can deny you your natural rights. If you can't worship on your own property, then either the right doesn't mean much or you don't own your property in quite the way you thought.
This brings us to the second problem: rampant abuse of power by certain homeowners' associations. To be sure, not every homeowners' association does this. But fining a man for putting up a cross is hardly an outlier. One homeowners' association fined a man $100 a day for installing some rosebushes and a beautiful stone statute. They harassed him so much he moved. Another was doomed to have nothing but mud in his front yard. The homeowners' association only allowed homeowners to grow one type of grass. And it didn't grow in his yard. He moved too. Worst, one homeowner lost his property to foreclosure for a minor homeowners' association fine while he was trapped overseas. They knew he was out of the country too.
A cottage industry of property management companies has sprung up. These companies offer to (for a price) to do the administrative work of running a homeowners' association. But property management companies aren't run for homeowners' benefit; like any other company, they run for their own profit. At best, these companies save busy homeowners' associations boards the time of policing minor violations and collecting fines. At their worst, they funnel money from homeowners to their friends and relatives contracting companies or simply embezzle homeowners' association's funds.
Homeowners' associations should be for homeowners. They should organize our pools and keep our neighborhoods beautiful. Some have turned this good purpose into a way to make money or control others. This control doesn't just threaten our property rights. When people are moving out because of harassment, it threatens our property values too.
North Carolina's General Assembly should enact legislation to protect homeowners from these abuses. I've drafted a homeowners Bill of Rights to protect property owners' basic rights. When a homeowners' association threatens to exceed its authority, a homeowner should always be entitled to damages and attorneys' fees for these threats. Likewise, every homeowner should have the right to detailed yearly reports about where the homeowners' association's money is going and who is benefiting. Board members — and property management companies — should disclose conflicts of interest (financial or otherwise). No homeowners' association should stymie the will of a majority of homeowners. Lastly, N.C.G.S. § 47F-3-121 should also protect religious expressions.
Protecting these rights will not undermine legitimate homeowners' associations; it will vindicate them. Homeowners' associations who abuse their power give other associations a bad name, lower property values, and threaten the continued existence of homeowners' associations. If we do not act to protect homeowners' rights, then homeowners' associations may be history.
Dan Gibson, a graduate of the E.A. Morris Fellowship for Emerging Leaders, is an attorney with Stam Law Firm in Apex. His practice focuses on civil litigation and appeals.