For the past two years I have lived in Klahanie, a vast and meticulously planned Eastside development of 3,000 houses and apartments, 1,500 Grand Cherokees, 300 acres of mostly unmolested forest, and 45 pages of lawyerly rules governing what I may do with my house and keep on my property. Our rules—"Covenants, Conditions, and Restrictions" (CC&Rs) in lawyerese—aren't unusually chafing for a modern American subdivision. They don't outlaw basketball hoops or doghouses (as long as Bowser's condo is "compatible with the homeowner's house in color and material"). But an item in the January homeowners association newsletter made me wonder what might be coming.
A "compliance committee" was forming, the newsletter reported, and encouraged us to sign up to work on it. "Volunteers would probably stroll neighborhoods looking in an unobtrusive manner for obvious CC&R violations." The next newsletter's report sounded a little less nonchalant. "We will begin this spring by touring our neighborhoods and appropriately tagging homeowners who violate the current rules and regulations."
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I rewound to the development where I'd lived in Tucson, Arizona, before moving here. A retired colonel with an active ache for authority had appointed himself commissar of compliance, and he vigorously patrolled the neighborhood with a selection of threatening notices to post on miscreants' cars and front doors. A volcano of resentment simmered, and the air at the annual association meetings was usually acrid with hostility.
I lived there for six years in violation of one of the rules. I operated a home business: I wrote books and magazine articles like this one in a cluttered office overlooking my front porch. Someone once brought it up. I bared my teeth and hissed that I would take it to court in a bloody instant, swaddled in the First Amendment. The City Council can't dictate where a writer does his work, nor the state Legislature, nor Congress. Just let a neighborhood association try!
Klahanie appears a little more lenient; the rules say the association "may permit specified home occupations." But I haven't asked for permission, and after this story appears, it might be inclined not to give it. Nor am I so smug about my constitutional armor anymore. Neighborhood associations regulate all kinds of behavior that other governmental bodies either cannot (constitutionally) or dare not (politically). They are private governments, like corporations, which gives them reign over a wide range of things we used to believe were personal decisions—including who may and may not live on the property we own and what we do with and in our houses.
A lot of this has been well documented (most thoroughly in the 1994 book Privatopia, by lawyer and political science professor Evan McKenzie). What brought me into it for a fresh look was, first, the warning that my own house is about to be checked out—unobtrusively, I'm assured, by a strolling compliance committee; and then a nagging question: Why are we so casually giving up personal liberties and assigning police powers to these associations that we wouldn't dream of letting any other government have?
No eggplant, no stucco
Homeowners associations are a booming industry. In 1970 there were about 10,000 scattered around the country; today there are 205,000. The Community Associations Institute (CAI) in Alexandria, Virginia, estimates that 6,000 to 8,000 new associations spring into being every year now, with 60 percent of all new urban housing falling under them. Litigation has become a lively activity; some law firms now specialize in writing CC&Rs and helping associations enforce them in court.
And American courts have increasingly endorsed the associations' governmental powers. "Historically, there was a tremendous legal aversion to controlling what people do with their property," says Kris Sundberg, a Mercer Island lawyer and president of the Washington CAI chapter. "This went all the way back to English common law." But as the Washington State Supreme Court affirmed in a 1997 case, "Modern courts have recognized the necessity of enforcing such restrictions to protect the public and private property owners from the increased pressures of urbanization."
Sundberg, who says he is philosophically a libertarian, is nonetheless a friend of homeowners associations and their rules. First, he says, we're all free to live wherever we want—the fact that 60 percent of all new urban housing comes wrapped in covenants means that 40 percent does not. And second, he says, "The overwhelming majority of people who live in covenant-restricted communities are perfectly happy with the arrangement. The fact that there are occasional problems should not be construed as a condemnation of the concept."
That's probably true. Until one gets involved in the occasional problem. There's an increasingly rich lore of astonishing cases—some tragic, some absurd, and most, because they usually involve lawyers, very expensive for someone.
In New Jersey, an association sued a 60-year-old resident who had taken a 45-year-old bride, three years too young for the community's age restriction. The association won, and the court ordered the husband to sell the home, rent it out, or live separately from his wife.
In Santa Ana, California, a condominium association posted a notice by the mailboxes accusing a resident of "parking in [a] circular driveway... kissing and doing bad things for over one hour." The "bad things" weren't spelled out, but the accused, a 51-year-old grandmother, was plenty livid. She won an apology only after the story made the Los Angeles Times and USA Today.
