December 23, 2020
Kids, we are counting down the final days to Christmas 2020. Many of my readers are familiar with the 1957 Dr. Seuss book, “The Grinch Who Stole Christmas.” In honor of the Grinch and the Whos, I would like to share a few insights from a 2019 book I recently finished reading, “The Power of Bad: How the Negativity Effect Rules Us and How We Can Rule It” by John Tierney and Roy F. Baumeister. “The Power of Bad” is not a book about property matters per se. That said, I think that the principles of the negativity effect animate much of what is going on in real estate. The authors define the negativity effect as, “the universal tendency for negative events and emotions to affect us more strongly than positive ones.” There are many examples of this. If you visit a restaurant, and the experience is overall positive, but there is one discrete problem, then the customer walks away remembering the negative thing. When people read hotel reviews or other online ratings, they look to the bad reviews and tend to give more weight to descriptive negative reviews even if there are other positive ones for a business. On a larger scale, Anti-Terrorism is a good example. After one tragic, evil event the government makes all sorts of decisions, some warranted, but many unnecessary and harmful. In fact, the threat of terrorism is less of a risk than being struck by lightning. Empirical studies show that it often takes 3-4 good experiences to cancel out the effect of one bad experience on someone’s perceptions of a person, organization, or place. The negativity effect makes people susceptible to manipulation, particularly by media organizations chasing viewership through eye-catching news of the latest problems, a politician or candidate developing a voter base through fear, or merchants selling some product. Of course, there are bad things that people need to know to protect themselves against. The psychological power of bad experiences and associations distorts decision-making by warping perceptions through exaggerating a potential risk or threat.
The book does not go into the topic of real estate, but I can see how policymakers and property owners are particularly susceptible to negativity. Owners are afraid that their homes will become less useful, attractive, or valuable because of something that happens. Threats to one’s home affect people in deeply personal ways. Many fear an external threat to their enjoyment of their home, be it criminals taking over the neighborhood, increased traffic from new development, or a home-based business popping up next door. It is commonplace for people to buy homes subject to restrictive covenants that give power to HOA directors to impose fines for architectural “violations.” In effect, many paying extra each month to have someone tell them what to do with their own property. Why does this happen? The negativity effect convinces many (but not all) landowners that the threat of other people ruining the neighborhood by breaking the architectural restrictions outweighs the risk that the HOA may overstep its authority. However, the architectural violations that HOAs often find with owners’ properties rarely pose any substantial threat to the value or use of neighboring real estate.
The Power of Bad book provides an example of how workplace disciplinary systems can illustrate effects of the negativity bias. This example reminded me of the systems of fines used in many HOA communities. The food company, Frito-Lay discovered that workers in a Texas factory were writing obscene messages on potato chips before bagging them. During investigation, corporate discovered that the factory used a new “progressive discipline” system to deal with tardiness and safety violations. After a first “violation,” the worker’s file was noted and she was given a verbal warning. If there was another violation, the worker would be brought into an office to acknowledge receipt of a written violation notice. At that moment, the worker would feel like they were being forced to admit something without being given a chance to defend themselves. The employee was given another black mark in the file whether they sign the violation notice or not. If there was a third violation, the employee would be given an automatic three-day suspension without pay. The worker would return to the plant even angrier. The subsequent violation notice resulted in termination. Tierney and Baumeister saw this toxic disciplinary system as illustrating the “The floggings will continue until morale improves” management approach. Frito-Lay discovered that the managers hated the disciplinary system as well, because it eroded professional relationships and made them unpopular. Instead of making the disciplinary process more equitable by ratcheting-up punishments evenly, it caused the factory to become more arbitrary. The managers avoided handing out violations until they just could not stand a worker anymore, after which they tried to railroad that problem employee through the stages of the disciplinary system so they would be terminated. Frito-Lay ended up scrapping this progressive disciplinary system in favor of a different design. This “progressive” disciplinary system reminds me of the dysfunctional covenant enforcement and dues collection systems many homeowners or condominium associations use to implement board policies. When owners receive rule violation notices, they frequently observe that the rule is not being enforced in the community, and their property does not really break the rules, but others are. Sometimes the notice states that a hearing was held without the owners knowing that their case was even before the board. Often, the board does not even have the authority to adopt the rule quoted in the violation letter. When owners receive fines for things that do not actually violate any legal obligation they have to the HOA, they lose motivation to maintain their property to keep up the neighborhood. Vindictive and incompetently managed rule violation systems can actually diminish the natural impulses that people often have to work in their yards to keep pace with their neighbors. Some people may become more worried about violation notices than actually yardwork. Sometimes bogus violation notices, fines, and late fees are focused on owners who are particularly unpopular with the board members or managers. Once associations record liens or institute foreclosures, the owner can feel “trapped” in a situation where they have few options other than paying a large monetary demand that includes items the collector is not entitled to, lying low and hoping that a suit or lien does not come, or retaining an attorney to solve the problem. These bad experiences can actually get away with these improper things, leaving them with few outlets other than posting attacks against the board or managers on social media (the contemporary version of scribbling on potato chips). Compounding things, there are people on the internet highlighting all of the “bad” about HOAs, to enhance the public’s attention to these issues, in the hopes that HOAs will become abolished and punish the malefactors (certain directors, managers, attorneys, etc.). This can detract from more useful discussions about how owners can, through education or working with an attorney, develop strategies for solving their own problems with HOAs. Sometimes news articles or social media posts, taken in the aggregate, actually re-enforce the false belief that it is futile to resist HOA bad behavior. But this is not true. It is common for landowners to successfully avoid, prevent, solve, or escape legal difficulties involving their neighbors or community associations. This happens all the time, but the news reports and social media buzz focuses on the hopeless cases because they draw more attention. If an owner has a problem with a homeowner’s association, they should not stop their research at doomsayer articles about other communities where a problem spiraled into a disaster. Those articles may be true, but they are not going to identify solutions that someone can use in their own situation. If an owner already purchased the house in a community association, they cannot wait for their HOA to be abolished in the future, because that is not going to happen. Often, the best thing is for the owner, a board member, neighbor, attorney, or other advisor to try to help the owner to resolve the problem before it becomes a larger financial burden, cause additional property damage, further limit the use of property, or mushroom into a larger interpersonal conflict. In what I have seen, landowners who cultivate positive vibes within themselves and their relationships are the ones that have the resiliency necessary to overcome the injustices they suffer. The Whos of Whoville were thankful and undeterred in the face of the Grinch’s scheming. My favorite chapters in “The Power of Bad” are the ones that talk about how positivity can overcome negativity and the negativity bias can be mitigated. In real life, one cannot count on the Grinch to have a change of heart when you need him to. In real estate matters, quite often overcoming the negativity bias involves refocusing away from vindication and shame to identifying tools (facts, resources, people, laws, etc.) that can be harnessed to solve the problem, which sometimes requires going before a judge, but often can be done in the context of settlement. Sometimes re-framing bad HOA covenants, rules or statutes as the byproduct of the negativity effect can convince decision-makers to interpret them narrowly and decline to enforce them in a particular instance. In HOA matters, often the answer to the problem can be found in a recorded declaration or other instrument that applies to the facts but has been ignored because people commonly think of the HOA as the organization you get rather than what is or is not expressed in the rules.
Note that the photo used for the blog post is just a stock image and does not depict anything referenced in my article.
