December 15, 2021
In the United States, there is a public debate over so called “cancel culture” or “call-outs.” These terms refer to public shaming or ostracism of well-known persons, particularly in the context of social media or the news. There is a debate as to whether cancel culture actually exists, or if what one sees in such stories is simply the social consequences of poor behavior. This typically works as follows: there is someone well known by many Americans. Later he is accused of peddling outrageous views or engaging in scandalous behavior. For example, failing to condemn certain things, declining to sign on to favored political or social positions, the use of racial epithets, offensive photos such as use of blackface, accusations of sexual predation or assault, child abuse, embezzlement, or some other scandal. The person’s notoriety may include controversial political or “culture war” views. Snowballing negative publicity, particularly on social media, causes such person to lose the support of their employer, sponsors, supporters, or business partners. The person could even lose her job and credibility and be removed from the celebrity pantheon in disgrace. Critics point to flaws with cancel culture, such as instances in which the accusations are misleading, the ostracism is too harsh, or that such efforts have a chilling effect on the kind of open discourse necessary to have a lively intellectual community. Before the rise of social media, it was less common for such public callouts to gain much momentum. It is easier to retweet or “like” a post than write one’s own complaint letter and mail it into a company or news organization.
The existence and operation of “cancel culture” is the topic of intense debate among journalists. On November 1, 2021, political science professor Daniel W. Drezner published an op-ed in the Washington Post. Drezner discussed comments made by Bulwark’s Cathy Young. Young opined that “Overall, the total number of ‘cancellations’ may be, as Gurri asserts, small – certainly in proportion to the population. But they add up to a social climate of intimidation, particularly when most mainstream media coverage takes the side of the bullies.” Drezner points out that “Measuring this chilling effect is difficult, but that does not mean it does not exist. . . Chilling effects on discourse are real – and because in many instances these are emanating from social media, they are almost impossible to deter. ” Other journalistic literature illustrates that the voices of various political movements accuse their opponents as the real culprits of, “cancel culture.”
The phenomenon of online callouts shapes public perceptions on how abusive behavior can be corrected in society through changes in popular sentiment. When people have disputes with powerful persons, they increasingly expect internet communications to allow “cancellation” of those persons. Some people seek quick, inexpensive means of neutralizing their personal enemies in the way they see bad people being shamed in the news or online. For example, a homeowner may see a neighbor or board member engaging in all sorts of bullying or abusive behavior contrary to public laws or the community’s founding documents, or basic standards of human decency. Web content suggests that notorious people can be forced out of their positions of success, power and prestige by means of organized negative communication campaigns.
Observation of “cancel culture” has effects beyond potentially silencing further expression of now-cancelled views. The way these stories fill the news cycle or social media world gives the impression that the story arc of a prominent person misusing power, saying wrong things, getting caught, and then losing power applies generally without much additional sacrifice or commitment on the part of the victims or interested persons. Many people are surprised to learn that there is not always an agency, commission, ombudsman or other government office somewhere who can send enforcement officials out to solve legal problems for free. Not all abusers or miscreants are so famous that they can be threatened by loss of national popularity. In most instances, victims are unable to make news simply by suing someone, making a press release, or posting online. Most social media posts are ignored by the vast majority, even if they address something important. There is much background noise out there. Of all of the lawsuits filed on a small percentage of them are ever reported in the news or discussed on social media. These accounts are repeated in the news or online because they are interesting, readable stories, not because they reflect a moral agency that can generally be tapped into every time there is a problem in society. The public expects a daily weather report on the “sea changes” in political disputes or “culture wars.”
This brings us to the question of cancel culture in homeowners associations. Many homeowners run into this in their disputes with association boards, managers or neighbors. Condominiums, HOAs and cooperatives are groups of people who are legally connected with each other through a spider-web of interconnected covenants, easements, design standards, statutes, election results, and personal relationships. These communities can be only a small handful of people or they can be as large as a town. This may feel in some ways like a reality TV show or political theater. It may be “real” but few people outside of the walls tune in to see what is happening. Major news organizations avoid reporting on most local government or HOA news, viewing it as only interesting to the people involved. Reported HOA stories are only the tip of a large iceberg of HOA conflict which is not publicized online.
Many HOA controversies can be resolved or mitigated by a group of members pursuing a communication campaign with other owners, the board and management to explain their concerns and why certain decisions must be made. This happens when the activist owners have concerns that they can effectively communicate to decisionmakers that listen and understand the message. HOA directors, managers and neighbors cannot be cancelled or called out through a public opinion campaign in the same way that a celebrity who is discovered to be an abuser or bully loses business opportunities. Many board majorities who remain in control for years despite the dislike or fears of many association members.
Does this mean that community perceptions about the morals or capabilities of its leaders are irrelevant? Certainly not. Homeowners have many options other than litigation or moving away. Community reorganization is a real option. But owners may find themselves isolated from the rest of their community. Other people may not be harmed by the bad behavior in the same way. Many people may lack the resources or organizational abilities to mount a legal challenge to mismanagement. Some people find moving to be an easier route than trying to solve the problem where they are. Many HOA boards deliberate and make business decisions through informal, furtive email exchanges. This can make it difficult for homeowners to organize opposition. They cannot “cancel” something that they cannot easily track. In some instances, trying to solve problems caused by misbehavior of a few through forging stronger relationships among high-minded allies engaging in concerted action is not an option.
My friend Deborah Goonan sees some cancel culture in homeowners’ associations, illustrated in her July 11, 2021 blog post, “HOAs Forever Changed by Covid19 Pandemic, Social Unrest.” Goonan argues that attempts by HOAs to adopt and enforce rules against owner’s political signs and other forms of expression is a kind of “cancel culture.” She writes that HOAs and condominiums have been “cancelling” people for decades before the rise of the “cancel culture” phenomenon. I agree that HOAs sometimes abuse the statutory remedies given to them by state governments to operate in secrecy, adopt overbearing and unreasonable rules, and enforce them by means of extrajudicial fines, liens, and foreclosures. My readers know that I am a critic of such wrongful practices, which sometimes tragically result in an owner being foreclosed on or forced to sell their property. While there is certainly abusive behavior going on in most instances these aren’t what most people mean by, “cancel culture.” Often the abusive practices have little or no public spectacle component. But cancel culture and HOA related abuse has the same common denominator: the fear factor. HOA leaders and managers sometimes will use electronic communications such as e-mail, social media sites, zoom, or websites like “Town Square” to try to ostracize, isolate, or shame enemies in front of the community. Such internet attacks are often connected with bullying behavior with architectural applications, covenant enforcement, common area disputes, or assessment collection. Sometimes such actions are done under the color of some sort of law or bylaw, but if one actually reads the legal authority, it doesn’t mean what they say it does. HOAs and condominiums not immune to the culture wars. I expect that the problem of “cancel culture” to increase in community associations as internet-based communications (e-mail, websites, social media, zoom, etc.) eclipses the traditional in person town hall-style gathering.
How does one prevent internet-based bullying from interfering with one’s property rights? Here are a few thoughts about cancel culture in homeowners associations:
- It’s important to recognize incivility and unjustified personal attacks for what they are. The law does not require men to be angels, and in fact laws and contracts would be unnecessary if they were. But it is impossible to establish civility and decorum if no one is setting an example of it. This can be difficult when someone feels silenced in the face of the bullying of others. But civility has to start with someone.
- In the world of cancel culture, the attacks are typically against someone’s character and based on general moral ideas. But in HOA matters, there is going to be governing instruments, state statutes, and hundreds of years of common law protections that can frame issues. In many HOA disputes, the homeowner who feels bullied has legal authority that they can stand on, which in many cases they are unaware of. There are legal principles that address the rights, duties and liabilities regarding communication, such as the first amendment, law of defamation, “open meeting” statutes, remote participation rules, and bylaws. In a discussion about potential chilling effects on speech, it’s important to understand the regulation of speech.
- There are people who can help so that owners who feel isolated aren’t completely isolated. Helpful people could include professionals such as attorneys or they could be allies within the community.
- Homeowners need to have attainable goals and personal values to inform how they approach a problem. One ought not to have only revenge in mind. Does the homeowner see themselves putting up a major fight to keep on living in the community the way the disclosed packet of HOA documents indicated they could? Or does the owner want to sell their home and move elsewhere? Does voluntarily complying with some of the HOA’s demands make sense?
There are better questions than asking which members of the community ought to be attacked. Cancel culture reflects a flaw in our public discourse, where many seek simplistic answers to complex human problems, garnering popular support while targeting a scapegoat. Of course wrongs ought to be corrected, and sometimes that has consequences for offenders. But you can’t live a rewarding life by engaging in continuous interpersonal attacks. Being creative and nurturing requires something or someone to cultivate. A community of creative people engages in mutual cultivation. Having a well-informed plan on how to use one’s property to advance one’s family’s goals is the first step to replacing “cancel culture” with “creative culture.” That’s why it’s important to understand one’s rights and responsibilities.
December 1, 2021
Sales associates for solar energy companies get excited every time the general assembly changes the laws facilitating new solar energy systems. Some of them print out copies of the statutes to hand to homeowners with doubts whether their HOA would allow them to install solar energy systems. But be careful about the Free HOA law advice of solar companies. Salespersons for solar energy companies are not reliable interpreters of community association laws. The addition of solar panels in residential communities can be controversial when the legal reforms come years after the developer recorded covenants that impose restrictions on such systems. Some people view solar energy systems as desirable; others see them as an eyesore, many do not care one way or the other. Personally, I don’t own any but think that they are a good thing. What should a homeowner do if she wants to buy solar panels but the HOA leaders and the company’s reps are saying different things about the legalities?
The Virginia Property Owners Association Act contains amendments regarding solar collection equipment that are similar to HOA laws in other states. The statute reads, “No association shall prohibit an owner from installing a solar energy collecting device on that owner’s property unless the recorded declaration for the association establishes such a prohibition.” Va. Code § 55.1-1820.1(B). The recorded declaration is the central governing document that the courts treat as the “contract” between the lot owners and the boards and committees of the HOA. How could a HOA enforce such a prohibition if the declaration did not provide such? The POAA also allows the HOA board to adopt rules and regulations governing the use and improvement of lots in the subdivision, if the declaration so allows. So, what happens if a HOA tries to restrict solar panels through architectural handbooks or other resolutions? This POAA amendment goes on to say that “However, an association may establish reasonable restrictions concerning the size, place and manner of placement of such devices.” Va. Code § 55.1-1920.1(B). Many people, on both the “pro-HOA” and “anti-HOA” sides of the debate are attracted to laws that require HOA action to be “reasonable.” However, parties frequently litigate over whether something is “reasonable.” Ordinarily, the courts to look to the language of the statutes and recorded instruments themselves to determine what “reasonable restrictions” might mean in a given context (and not apply a generic view of what is “reasonable”).
The POAA solar amendment goes on to talk about what is reasonable: “A restriction shall be deemed not reasonable if application of the restriction to a particular proposal (i) increases the cost of installation of the solar energy collection device by five percent over the projected cost of the initially proposed installation or (ii) reduces the energy production by the solar energy collection device by 10 percent below the projected energy production of the initially proposed installation.” Va. Code § 55.1-1820.1(C). Additionally, the owner has to produce a report by a qualified expert that satisfies the HOA that the restriction is not reasonable.
Why would the state legislature enact a law written this way? This is my blog, so I get to speculate if I want. I suspect the solar energy industry and the HOA industry got together and developed legislation that contained language that both sides wanted, with insufficient thought as to how this would impact lot owners and architectural committees in the real world.
In 2019, the Court of Special Appeals of Maryland considered a case where a homeowner installed solar panels without first obtaining HOA approval, and then tried to use Maryland’s similar version of HOA solar amendments to defend against covenant enforcement. Stoneridge at Fountain Green HOA wanted Jonathan and Megan Blood to remove the solar panels from the front side of the roof of their house in Hartford County, consistent with its desire to keep panels off of the front of houses. The Bloods argued that while they were supposed to apply to the HOA beforehand, they believed that their contractor would do that for them. The Bloods tried to defend the HOA lawsuit by arguing that to remove the panels from the front of their house would unreasonably increase the cost of decrease the efficiency of the solar collection equipment. At trial, the Vice President of the solar panel company testified that reducing the number of panels from 48 to 33 would reduce the systems performance and efficiency. In its analysis, the appellate court observed that the statute didn’t adequately define “cost” or efficiency”. The court found that there was no evidence that restricting the number of panels would increase the cost of the system (larger systems cost more, not less?). The court also found that reducing the size of the system made it produce less electricity, but didn’t make it less operationally efficient. The Court found that because the Bloods were supposed to obtain approval first, they can’t really argue that being forced to remove some of them was a kind of waste prohibited by the statute (the rule breaker should not get to keep what they built just because it would waste money to demolish part of it?). The court concluded that the Bloods’ reading of the statute would make any HOA limitations on solar equipment unenforceable because any rule that made the system smaller would result in a loss of cost savings that could be derived from more solar panel coverage.
The Stoneridge at Fountain Green HOA v. Blood case illustrates how these statutes don’t provide homeowners with as nearly the legal protections that some people think they do. The statutes aren’t really substantive rules, they are provide instructions on as how to interpret HOA governing instruments. However, the solar industry didn’t lose, they still have a statute that they can point to during their sales process with lot owners. In these situations, lot owners have to be very circumspect, because HOAs are apt to overstate their powers and adopt rules that are unenforceable (or unenforceable in the way that the HOA is trying to use them in a given instance). At the same time, a wise lot owner ought not to rely upon the legal advice of the company who is trying to sell them something. Unfortunately, some HOAs will adopt rules and make architectural decisions in an informal fashion, where they expect lot owners to live with decisions made during backyard BBQ’s or hurried email exchanges that don’t properly observe the statutes or recorded instruments that give them authority.
Discussed Legal Authority:
Note: The photo associated with this blog post is a stock image that doesn’t depict anything discussed in the article.