In some ways, this wasn’t so much a referendum on smoking as on homeowners’ associations (HOAs) and how much they have a right to demand of their members. Looking a little further into this question, I found that resentments against HOAs and campaigns to defang them legislatively are turning up around the country. And they speak to the fundamental question of individual rights versus community rights.
Just what are HOAs doing that is making residents of condos, townhouses and planned communities so angry? What are these private governments allowed to prohibit, and what are they precluded from prohibiting? That’s not an easy question to answer. To invoke an ancient political science cliche, it varies from state to state. Actually, it varies quite a bit.
In most areas of the country, an HOA can place a limit on the length of the grass in your yard, impose a ceiling on the number of cars you can have on your property, restrict your right to play loud music inside your home late at night, and clamp down on your ownership of certain animals as pets. You can have dogs and cats, unless you have a houseful of them, but some animals are against the rules. You can’t install a family of beavers in front of your house and watch them building a dam. And you can’t smoke in your apartment if the HOA declares that to be against the rules.
Most of the rules don’t sound terribly onerous, but there are bizarre examples of HOA overreach. Homeowners’ associations in some places have cracked down on solar roof panels, certain kinds of lawn maintenance, and the display of religious material at the front door. Some rules are much worse than those. In Texas, according to one accounting, an HOA sued a couple for $250,000 for the offense of feeding ducks on their property.
A home warranty company conducted a survey that asked homeowners which sorts of HOA restrictions they found the most offensive. The responses were pretty similar: Landscaping requirements came in first, followed by pet ownership, certain kinds of fencing and exterior renovations. Seventy percent of the respondents said they would prefer to live in a community without an HOA. A lot of HOA residents are also incensed over what they consider double taxation: They are required to pay homeowner fees while remaining subject to local property taxes.
THE NATIONAL CAPITAL OF THIS CONTROVERSY IS FLORIDA. That’s because Florida has more HOA residents per capita than any other state: It’s estimated that there are around 50,000 HOAs in Florida, covering about 45 percent of all Floridians. A writer for Business Insider described the state as “an HOA republic.” Perhaps unsurprisingly, given a fairly well-organized anti-HOA campaign, Florida has already moved to restrict their powers. Under legislation enacted in 2024, HOAs can no longer set punitive rules over parking, leaving garbage cans at the curb or growing a vegetable garden.
But the push to restrict them further in Florida continues. It’s a crusade looking for a standard-bearer, and the anti-HOA forces in Florida have found one in Juan Carlos Porras, a Republican state representative who looks at the whole subject from a libertarian lens. Porras, who describes homeowners’ associations as a “failed experiment,” has introduced legislation that would allow homeowners to vote to dissolve an HOA if 20 percent of the homeowners sign a petition calling for a referendum.
Something similar is going on in Texas, where a coalition that includes realtors and AARP wants to make HOAs illegal by virtue of state law. “Rather than making the community a better place,” one of the coalition’s activists wrote, “they hinder growth and create negative impacts through discriminatory mandates.” AARP has long promoted a national HOA bill of rights that would protect senior citizens from overweening HOA managers.
North Carolina is considering legislation that would bar HOAs from foreclosing on anyone who is less than six months behind in paying dues. Minnesota is considering a bill that would restrict an HOA from doing a variety of things, including making it difficult for homeowners to contest a fine and charging them for asking questions in public.
HOAS DON’T GO BACK THAT FAR in American housing history. Before about 1960, local governments held the legal and managerial responsibility for condo-type developments. Privatized HOAs began to sprout in the 1960s partly because governments wanted to avoid that administrative headache and partly because homeowners believed that private management wouldn’t be quite as hard on them.
The homeowners may or may not have been right. But courts have maintained that in most cases (those not involving race), an HOA existed by private contract and was extremely difficult to sue successfully. In 2002, in a case called Loren v. Sasser, a federal appeals court declined to use its authority to prohibit the display of “'for sale' signs, among other activities. The court ruled that it lacked jurisdiction over a contract between an HOA and its members. Several years later, the New Jersey Supreme Court upheld a lower court ruling that an HOA prohibition on political signs was not a violation of the First Amendment.
So homeowners in much of the country are stuck with a ruling body that can do pretty much what it wants — even tell them what their front lawn should look like. But it’s only fair to point out that the demonization of HOAs ignores many of the beneficial things that they do, things that even most of the homeowners support. Within an HOA-run property, they generally collect the garbage, pave the roads, and maintain and landscape common areas. I haven’t found a situation in which residents wanted an HOA to stop doing those things. The problem exists when an overzealous governing body takes its mandate too far in a draconian direction.
But however any given case turns out, the HOA issue brings up a much broader difference of opinion over the rights any community has over the individuals that belong to it. The smoking controversy in my own condominium is a good example. But there are plenty of others.
A FEW YEARS AGO I GAVE A TALK about urban values at George Mason University. I posed this question to the class: If you are a governing official in a medium-sized town that has been hemorrhaging Main Street retail business, and Walmart wants to build a superstore on the edge of town, does the local government have the right to deny them a permit? I said it would have that right: Walmart would further wreck local business, and was therefore subject to rejection. Most of the class disagreed. The majority opinion was that the community would be trampling on free-market individualism. I think that in a broader citizen referendum, my side would have come out on top. In any case, I think the community has rights that would supersede those of the corporation. But it’s a tough one.
Or what about the bakery owner who refuses to decorate a cake for a same-sex wedding? Does the baker have individual rights that should stand against gender discrimination? In this case, I tend to side with the baker. His values don’t prevent someone else from taking on the business. There are plenty of other bakeries. U.S. courts have generally decided in favor of the baker.
One last case: Suppose you live in a community that is 90 percent Christian, 5 percent Jewish and 5 percent Muslim. A private institution wants to have a holiday celebration and call it a Christmas Party. Does that violate the Constitution? Probably not, but most communities have chosen to avoid using the word “Christmas” in advertising their festivities. Are they overreacting? I would say so, but public sentiment seems to be mostly on the other side.
The one lesson I derive from all this is that every situation pitting communities against individual (or at least private) rights is a little different. The only sensible option is to avoid ideology and dogma and examine the facts with a bias toward fairness. That applies to locating superstores; it applies to smoking regulation as well. The individual has rights, but so does the community. It’s drawing the line that’s difficult.
Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
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