Jupiter homeowner faces foreclosure for flying U.S. flag
- Thread starter Desertdog
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No, a completely different scenario. The law is applied to everyone, with no option for you to not fall under it. A HOA agreement is something that you willingly sign, wherein you agree to follow the stupid rules they promulgate. There is a major difference, there. In effect, he said "yes, I agree not to fly a flag on my property," and then turned around a flew a flag on his property.
Sorry, sir. You made a deal. You should honor it.
I think the association rule is as stupid as anyone else here, btw. I would never agree to such a restriction. But he did.
Mike
Mike Irwin
Member
"Homeowner's associations are a great example of why pure democracy is a bad thing - you submit to mob rule when you choose to live somewhere with covenants like these."
"HOAs are evil..."
etc...
Oh for the
ing love of !
OK, time for a little edumukation regarding HOAs, what they are, what they CAN be, what they don't have to be, and how they operate...
First off, in virtually every state in the US where HOAs operate, they operate in much the same manner as town and city councils, with ELECTED officers, who are elected by the constituency (i.e., the people who live in the HOA). In essence, the HOA is a representative form of government (yes, in most states HOAs can be thought of as a form of government), NOT some sort of mob rule.
Every state that I know of REQUIRES the HOA to provide prospective homeowners with copies of the covenants and regulations, financial disclosures, lists of officers, etc., that govern the HOA when an initial contract to purchase the home is signed.
In Virginia, the prospective owner has THREE DAYS to examine the documents and if he/she so desires, can cancel the sale based solely on what is in those documents with no loss of ernest money.
What town, city, township, village, or county in the US is REQUIRED, by law, to give prospective residents a copy of applicable laws and financial disclosure documentation with the right to rescind a sale?
To the best of my knowledge, NOT ONE.
State laws also spell out what HOAs can and cannot do. The Virginia HOA and Condominium Act runs roughly 100 printed pages in booklet form. It lays out, in statute form, exactly what an HOA or Condo board can do.
Regarding covenants and community regulations. These are no different than what states, cities, and towns employ. Remember, an HOA is a form of government. Yes, in many cases they're more specific that what you would find in other communities. Why? Because the community was planned from the outset. It didn't grow over time as most of the other entities did.
Now, there's a question of what HOAs cannot do. Well, the BIGGEST cannot do is force someone to live in the HOA. That right there is the biggest limiter on the HOA's power over the individual.
Don't like the laws in a state you're considering moving to? Don't move there. Same with an HOA.
I know everyone has heard the horror stories about HOAs... Board members walking around with paint chips, making sure that your house is the proper color, and doing much, much worse, essentially acting as little banana republics... How is that any different than the yelping that goes on about California? Or New York? Or Massachusetts?
The existing government has ONLY the power that the constituents ALLOW them to have! Don't like the legislature? Toss the bastards out! Don't like the HOA board? Toss the bastards out!
Yet far too often that doesn't happen.
Why?
Constituent APATHY. Most people simply can't be bothered to take an active role in their community, whether it is at the state, local, or HOA level, but they do have the energy to bitch and whine about these horrible, horrible oppressive laws under which they have to live their lives.
To that I say bull
I've been the vice president of my HOA for the past 8 years. The ONLY reason I'm still on the board is because of the absolute, intransigent apathy of the majority of the people who live in my community.
The HOA in my community is also one of the biggest reasons why over the past 4 years there has been a near DOUBLING of property values, far exceeding the rise in property values in most other areas in Fairfax County, Virginia. I bought my home for $155,000 10 years ago, given the parade of real estate agents who have barraged me with offers, I could easily sell it tomorrow for $305,000.
Simply put, this old man knew what he was getting into when he chose to move to the community.
From everything I've read on this case (and believe me, as VP of my HOA, I've seen a LOT more than a couple of sentimental, heart-jerking "cold heartless, faceless HOA vs. war hero patriot" newpaper articles) he's dictated the course of action by his adamant refusal to honor the contractual obligations that he entered into when he moved into the community.
I've got about as much sympathy for this old man as I do the gang banger who tries to knock off the local stop & shop and ends up with a .45 in his coconut and his brains leaking out his ears.
You go looking for a fight, chances are you're going to find one.
"HOAs are evil..."
etc...
Oh for the
ing love of ! OK, time for a little edumukation regarding HOAs, what they are, what they CAN be, what they don't have to be, and how they operate...
First off, in virtually every state in the US where HOAs operate, they operate in much the same manner as town and city councils, with ELECTED officers, who are elected by the constituency (i.e., the people who live in the HOA). In essence, the HOA is a representative form of government (yes, in most states HOAs can be thought of as a form of government), NOT some sort of mob rule.
Every state that I know of REQUIRES the HOA to provide prospective homeowners with copies of the covenants and regulations, financial disclosures, lists of officers, etc., that govern the HOA when an initial contract to purchase the home is signed.
In Virginia, the prospective owner has THREE DAYS to examine the documents and if he/she so desires, can cancel the sale based solely on what is in those documents with no loss of ernest money.
What town, city, township, village, or county in the US is REQUIRED, by law, to give prospective residents a copy of applicable laws and financial disclosure documentation with the right to rescind a sale?
To the best of my knowledge, NOT ONE.
State laws also spell out what HOAs can and cannot do. The Virginia HOA and Condominium Act runs roughly 100 printed pages in booklet form. It lays out, in statute form, exactly what an HOA or Condo board can do.
Regarding covenants and community regulations. These are no different than what states, cities, and towns employ. Remember, an HOA is a form of government. Yes, in many cases they're more specific that what you would find in other communities. Why? Because the community was planned from the outset. It didn't grow over time as most of the other entities did.
Now, there's a question of what HOAs cannot do. Well, the BIGGEST cannot do is force someone to live in the HOA. That right there is the biggest limiter on the HOA's power over the individual.
Don't like the laws in a state you're considering moving to? Don't move there. Same with an HOA.
I know everyone has heard the horror stories about HOAs... Board members walking around with paint chips, making sure that your house is the proper color, and doing much, much worse, essentially acting as little banana republics... How is that any different than the yelping that goes on about California? Or New York? Or Massachusetts?
The existing government has ONLY the power that the constituents ALLOW them to have! Don't like the legislature? Toss the bastards out! Don't like the HOA board? Toss the bastards out!
Yet far too often that doesn't happen.
Why?
Constituent APATHY. Most people simply can't be bothered to take an active role in their community, whether it is at the state, local, or HOA level, but they do have the energy to bitch and whine about these horrible, horrible oppressive laws under which they have to live their lives.
To that I say bull
I've been the vice president of my HOA for the past 8 years. The ONLY reason I'm still on the board is because of the absolute, intransigent apathy of the majority of the people who live in my community.
The HOA in my community is also one of the biggest reasons why over the past 4 years there has been a near DOUBLING of property values, far exceeding the rise in property values in most other areas in Fairfax County, Virginia. I bought my home for $155,000 10 years ago, given the parade of real estate agents who have barraged me with offers, I could easily sell it tomorrow for $305,000.
Simply put, this old man knew what he was getting into when he chose to move to the community.
From everything I've read on this case (and believe me, as VP of my HOA, I've seen a LOT more than a couple of sentimental, heart-jerking "cold heartless, faceless HOA vs. war hero patriot" newpaper articles) he's dictated the course of action by his adamant refusal to honor the contractual obligations that he entered into when he moved into the community.
I've got about as much sympathy for this old man as I do the gang banger who tries to knock off the local stop & shop and ends up with a .45 in his coconut and his brains leaking out his ears.
You go looking for a fight, chances are you're going to find one.
Mike Irwin
Member
"What is to stop the HOA from specifying that homeowners may only have intercourse in a missionary position? It's in the covenants, afterall (hypothetically speaking)."
Not hypothetically, a LOT, starting with the English Common Law concept that the interior of a man's home is his castle.
However, IF an HOA did try this, it wouldn't be much different than the vast majority of the "morality" laws that are now on the books in many states, such as Virginia's anti-sodomy law.
The temporal break would be in enforcement.
AFAIK, while HOAs are in many states chartered essentially as forms of government, powers of police enforcement are NOT extended to them. If an officer of an HOA enters your home to check on your coitus position, it's breaking & entering or trespassing, pure & simple.
Not hypothetically, a LOT, starting with the English Common Law concept that the interior of a man's home is his castle.
However, IF an HOA did try this, it wouldn't be much different than the vast majority of the "morality" laws that are now on the books in many states, such as Virginia's anti-sodomy law.
The temporal break would be in enforcement.
AFAIK, while HOAs are in many states chartered essentially as forms of government, powers of police enforcement are NOT extended to them. If an officer of an HOA enters your home to check on your coitus position, it's breaking & entering or trespassing, pure & simple.
Mike Irwin
Member
Quartus,
"HOA's BAD, FREEDOM GOOD."
No, more like Your Friend Stupid! Apathy BAD!
"HOA's BAD, FREEDOM GOOD."
No, more like Your Friend Stupid! Apathy BAD!
Mike Irwin
Member
DRC,
"And granted a contract is a contract but I'm unaware of any provisions in an Associations contract that can legally allow them to foreclose on property purchsed and being paid for by another."
The laws of the state that govern HOAs would make that determination.
"And granted a contract is a contract but I'm unaware of any provisions in an Associations contract that can legally allow them to foreclose on property purchsed and being paid for by another."
The laws of the state that govern HOAs would make that determination.
Mike Irwin
Member
"However, even if they have no weird rules when I move in, the covenant is likely worded in a manner that requires compliance with all existing and future rules of the HOA."
Coro,
And that's different from living in a town/city, a state, or the United States how?
It's not.
Coro,
And that's different from living in a town/city, a state, or the United States how?
It's not.
jimpeel
Member
The guy was on Hannity & Colmes tonight and Sean said that if push came to shove he'd raise the $25,000 to save his home and throw in the first $5,000 from his own pocket AND buy another flagpole to place beside the first one.
They also had footage of Jeb Bush showing up at the guy's house to support him.
They also had footage of Jeb Bush showing up at the guy's house to support him.
S_O_Laban
Member
It's my understanding from a radio broadcast I heard yesterday that last Year Jeb Bush signed a state law that allows flagpoles reguardless of what the HOA rules might be. It was stated that this particular case was the reason that this law was drafted and passed. I suppose though that this does nothing to help the man in question as this all came about before the new law went into effect. I haven't been able to find something to link to but will keep looking.
S_O_Laban
Member
OK, for those THR lawyers and aspirants who have proclaimed this to be a clearcut case of violation of contract law...I have a question.
How come, when an individual sues the state over a clearcut case of violation of contract and/or the law, on the part of the STATE (even when the violations are stipulated, not in dispute), that courts routinely dismiss the lawsuit on the basis that the individual has not proved ACTUAL DAMAGES resulting from the violation? The legal phrase thrown out, is that the lawsuit is NOT YET RIPE.
In this case, many have speculated on the positive impacts of HOA's, in general terms. Yet, I have seen nothing attempting to prove actual damages incurred by the HOA (actual monetary loss - lawyer's fees are not damages) because this guy has a flagpole in his yard. Documented evidence of cause-effect; i.e., reduced property values, directly attributed to the defendent's actions.
One could assert that the claim on the part of the HOA is not yet ripe. I'm sure if the defendent were the government in this case, rather than a lowly peon, this defense would be raised and upheld in court.
Can someone explain the reason for this double standard? It's always stuck in my craw. Why does the state get a free pass in cases like this?
How come, when an individual sues the state over a clearcut case of violation of contract and/or the law, on the part of the STATE (even when the violations are stipulated, not in dispute), that courts routinely dismiss the lawsuit on the basis that the individual has not proved ACTUAL DAMAGES resulting from the violation? The legal phrase thrown out, is that the lawsuit is NOT YET RIPE.
In this case, many have speculated on the positive impacts of HOA's, in general terms. Yet, I have seen nothing attempting to prove actual damages incurred by the HOA (actual monetary loss - lawyer's fees are not damages) because this guy has a flagpole in his yard. Documented evidence of cause-effect; i.e., reduced property values, directly attributed to the defendent's actions.
One could assert that the claim on the part of the HOA is not yet ripe. I'm sure if the defendent were the government in this case, rather than a lowly peon, this defense would be raised and upheld in court.
Can someone explain the reason for this double standard? It's always stuck in my craw. Why does the state get a free pass in cases like this?
You're correct. It is just one more form of government. But it is one under which you can choose to live or not live, not unlike choosing to live in the country vs the city. I just prefer that people make their choices and not cry about it afterwards, is all. "But that wasn't the rule when I moved in! Boohoohooo!" No, it might not have been, but you left the door open for it when you signed the covenant.
*shrug* I choose not to allow my neighbors to determine the height of my fence. In return, I have no say in the height of my neighbors'.
Also, I caught part of it last night. According to Andres' side, 1. the rules don't prevent flying of a flag or having a flagpole, the HOA is just interpreting it that way and 2. There is a law stating that it is OK to fly the US flag, regardless of HOA rules and 3. He already won that fight, the HOA is now trying to get him to pay their legal bills, for the case that the HOA fought and lost. Needless to say, if true this changes things a little bit.
Mike
Ah. This explains a bit: http://www.ccfj.net/flyoldglory38.html
Wow. Thats quite a mess.
Mike
So, the HOA fought and won their case, had the resultant victory turned over by a law that is basically ex post facto (but no one is complaining about that, I suppose), and still has their legal debts, which would need to be paid be either 1. everyone in the community or 2. Andres.
Wow. Thats quite a mess.
Mike
Great, so if Sean Hannity raises the 25k to pay the HOA's legal fees and buys the guy another flagpole, everyone's happy. With the publicity, raising 25k should not be a problem.
[blockquote]You can bet that anything prohibiting Jews, Blacks, Hispanics, Asians, homosexuals, women, etc. would be unenforceable.[/blockquote]
Maybe, but there are some communities that have age restrictions.
[blockquote]You can bet that anything prohibiting Jews, Blacks, Hispanics, Asians, homosexuals, women, etc. would be unenforceable.[/blockquote]
Maybe, but there are some communities that have age restrictions.
Mike Irwin
Member
Generally, a retroactive law won't serve to dismiss legal fees or secondary legal actions (placing of the lien) incurred prior to legislative action.
I can't remember for certain, but I BELIEVE that the HOA rules didn't specifically call out a flag pole, but did make provisions for free-standing permanent structures (building, sheds, BBQs, etc.). A permanent flag pole is a structure.
The HOA does allow a flag to be flown from a pole on a wall bracket. But for some reason this wasn't quite good enough for the guy. Why? I'd really like to know that, but none of the articles addresses that, other than his apparent statement that he "has the Constitutional right to fly the flag from a pole." That's pretty indicative that he's not interested in any sort of compromise.
I can't remember for certain, but I BELIEVE that the HOA rules didn't specifically call out a flag pole, but did make provisions for free-standing permanent structures (building, sheds, BBQs, etc.). A permanent flag pole is a structure.
The HOA does allow a flag to be flown from a pole on a wall bracket. But for some reason this wasn't quite good enough for the guy. Why? I'd really like to know that, but none of the articles addresses that, other than his apparent statement that he "has the Constitutional right to fly the flag from a pole." That's pretty indicative that he's not interested in any sort of compromise.
Quote:
The HOA does allow a flag to be flown from a pole on a wall bracket. But for some reason this wasn't quite good enough for the guy. Why? I'd really like to know that, but none of the articles addresses that, other than his apparent statement that he "has the Constitutional right to fly the flag from a pole." That's pretty indicative that he's not interested in any sort of compromise.
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Not positive about this, but it's been my understanding that there is a proper etiquette to flying a flag from certain structures and that a permenant free standing pole was top in the pecking order. Sort of like the most respectful way to fly the flag. So maybe that had something to do with his decisions.
Also as a side note, on CNN last night Andres claimed that 15 or so of his neighbors have filed suit against the HOA for spending their money fighting this. Anybody else hear something similar/dissimilar?
The HOA does allow a flag to be flown from a pole on a wall bracket. But for some reason this wasn't quite good enough for the guy. Why? I'd really like to know that, but none of the articles addresses that, other than his apparent statement that he "has the Constitutional right to fly the flag from a pole." That's pretty indicative that he's not interested in any sort of compromise.
------------------------------
Not positive about this, but it's been my understanding that there is a proper etiquette to flying a flag from certain structures and that a permenant free standing pole was top in the pecking order. Sort of like the most respectful way to fly the flag. So maybe that had something to do with his decisions.
Also as a side note, on CNN last night Andres claimed that 15 or so of his neighbors have filed suit against the HOA for spending their money fighting this. Anybody else hear something similar/dissimilar?
Mike Irwin
Member
"Also as a side note, on CNN last night Andres claimed that 15 or so of his neighbors have filed suit against the HOA for spending their money fighting this. Anybody else hear something similar/dissimilar?"
First I've heard that, but it's not surprising.
However, they should realize that they are, in essence, suing themselves because they are the HOA.
Any legal fees spent defending against that suit will, in part, come out of their own pockets.
If they actually win a judgement against the HOA, where would the money come from for the judgement? From the HOA, i.e., in part from the people who filed the suit.
First I've heard that, but it's not surprising.
However, they should realize that they are, in essence, suing themselves because they are the HOA.
Any legal fees spent defending against that suit will, in part, come out of their own pockets.
If they actually win a judgement against the HOA, where would the money come from for the judgement? From the HOA, i.e., in part from the people who filed the suit.
Mike Irwin
Member
"Insurance of some kind..."
Of course the HOA has insurance. Required by law in every state.
Don't know what kind of insurance levels they have, but in Virginia HOAs generally have to have:
1. General liability & accident insurance
2. Insurance to cover any jointly owned property, such as rec. centers, etc.
3. Various forms of insurances to cover any employees (my association doesn't have employees, so we're exempt).
4. Insurance to cover a board member taking a powder with the association's funds.
Generally there's no requirement anywhere for association/boards to carry insurance that would cover them against lawsuits that arise from their attempting to enforce promulgated covenants, rules and regulations of the community. That's part of their duties as an association board of directors, and is generally seen to be well on the way toward being an affirmative defense against such lawsuits.
Also, and while I'm not up to date on Florida law,if it's like Virginia law board members are generally protected from lawsuits against them individually resulting from good-faith actions taken on behalf of the association.
These homeowners can attempt to sue the association and the board of directors, but given the affirmative defense of working to enforce the promulgated CRR, there's simply not a lot of smoke there.
Of course the HOA has insurance. Required by law in every state.
Don't know what kind of insurance levels they have, but in Virginia HOAs generally have to have:
1. General liability & accident insurance
2. Insurance to cover any jointly owned property, such as rec. centers, etc.
3. Various forms of insurances to cover any employees (my association doesn't have employees, so we're exempt).
4. Insurance to cover a board member taking a powder with the association's funds.
Generally there's no requirement anywhere for association/boards to carry insurance that would cover them against lawsuits that arise from their attempting to enforce promulgated covenants, rules and regulations of the community. That's part of their duties as an association board of directors, and is generally seen to be well on the way toward being an affirmative defense against such lawsuits.
Also, and while I'm not up to date on Florida law,if it's like Virginia law board members are generally protected from lawsuits against them individually resulting from good-faith actions taken on behalf of the association.
These homeowners can attempt to sue the association and the board of directors, but given the affirmative defense of working to enforce the promulgated CRR, there's simply not a lot of smoke there.
WHAT?!?!!? MY FRIEND STUPID ?!?!?
Are you talkin' 'bout my fren? MY friend?
My friend that...
- bought his house without shopping around? Then found out he'd bought in the high priced snotty area?
- then got into real estate (after the inheritance money ran out) and spent the next 6 months telling every client what they SHOULD want, instead of finding out what they DID want? Then complained that nobody can make money in real estate in an area where people were getting rich in real estate?
- that alienated every hunter in the area by telling them all how to hunt? Him that had never been hunting in his life?
- that stuck his hand in a snow thrower and mangled his shooting hand? (Well, he USED to be a good silhouette shoooter!)
Hmmm. Maybe you've got a point, Mike.
But I still have no use for an HOA. In joining one, you have chosen to add one more layer of government to your life.
No thanks.
Orthonym
Member
I AM NOT A LAWYER, but
I thought FL (like TX) had a dam-near bulletproof homestead exemption. I mean, the Attorney-General said so! The Feds even noticed and have tried to change the laws because we've had some bad-debtors move here and put millions into creditor-proof houses.
If the govt can void other parts of HOA agreements (no Negroes, no Ham antennae, no Jews, no wrong grass species in the lawn , etc etc ) why can't they void this one?
I thought FL (like TX) had a dam-near bulletproof homestead exemption. I mean, the Attorney-General said so! The Feds even noticed and have tried to change the laws because we've had some bad-debtors move here and put millions into creditor-proof houses.
If the govt can void other parts of HOA agreements (no Negroes, no Ham antennae, no Jews, no wrong grass species in the lawn , etc etc ) why can't they void this one?
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