27 Comments

1. Ken  •  Jun 4, 2009 @10:41 am
   

   I find the board more irritating, but Larison is irritating as well.

   Free people can surrender freedoms by contract. That's part of freedom and adulthood (and would be a part of being a grownup.)

   Larison elected to live under the rules of an HOA. He determined that living in a particular house was worth surrendering a slice of his freedom to a pack of stick-up-the-ass officious Mrs. Grundys. He's enjoyed the fruits of the contract, but now he doesn't like the cost. To paraphrase what the scorpion said to the frog, he knew their nature when he took the deal. If you don't want your bumper stickers regulated by the sort of people who are interested in regulating other people's bumper stickers, then act like a damn adult and don't move into an HOA that allows such regulation.

   And the members of the HOA ought to be ashamed of themselves, to the extent they have the capacity for shame. They ought to be ashamed not just for enforcing the bumper sticker rule in this circumstance, but for having a bumper sticker rule in the first place.

2. Patrick  •  Jun 4, 2009 @10:49 am
   

   You know, as well as I do Ken, that most people don't read such documents as HOA rules. I doubt that you've ever handled a real estate closing, but I have. Most homebuyers don't receive a copy of the rules until the day of closing, when it's handed to them along with a massive stack of other documents pertaining to chain of title, HUD disclosures, and the like.

   There is no excuse, of course, for failing to read such documents and to consider their implications, but people do it anyway all the time. Larison's sin is merely venal.

   The HOA board's sin, on the other hand, is mortal.

3. Mike  •  Jun 4, 2009 @11:00 am
   

   It's always an interesting issue….. contracts.

   When you join an HOA, you'd think it'd be pretty "common sense" stuff. Keep your grass mowed. Don't leave your trash cans out in the street. Don't have loud orgies outside in your swimming pool.

   So you sign the contract.

   Only then do you realize that, no, HOAs have nothing to do with common sense or common decency.

   I've recently gotten into credit card law. Man….. I always thought I knew what were in credit card contracts. As jaded as I saw, I was surprised.

   It's easy to say, "You signed the contract!" Yet things aren't that easy.

   What if, in Latin, I put a provision in 8 point font that said you surrender your child to me. How could anyone anticipate that?

   If you want a society organized around contracts, then the contracts should reflect reasonable expectations of the parties. If contracts want to deviate from what is expected and reasonable, simply require that these provisions be put forth in bold print.

   And yet…. proving my point…. Credit card companies and everyone else who sneaks shit into contracts fight like hell against disclosure requirements. So, obviously, they think that they are able to sneak stuff by most people. They'd like to continue to trick people.

4. Ken  •  Jun 4, 2009 @11:19 am
   

   See, I guess my perspective is that HOAs are notorious for being stuffed with pushy, all-their-taste-in-their-mouths little Napoleons who enjoy dictating how their neighbors live. I think that a reasonable person buying into a HOA would exercise due diligence and seek out the HOA contract and see what sort of picayune shit the neighbors are going to want to regulate.

   Also, I make a living defending cases in which the defense is "oh, yeah, the contract says X, and I read it, but the salesman/partner said Y." The prevailing law allowing people to get away with that shit contributes hugely to the prevalence and cost of commercial litigation.

5. Brian Dunbar  •  Jun 4, 2009 @12:04 pm
   

   I think that a reasonable person buying into a HOA would exercise due diligence and seek out the HOA contract and see what sort of picayune shit the neighbors are going to want to regulate.

   I would. But I imagine by that point we'd be pretty far along in the process and it would have to be a very odious contract for me to persuade my wife the thing stinks and we're going to wave off the home buy.

   Who would know that eight years later the HOA would decide that oo-rah stickers are advertising?

   If it's just me .. when we closed on our home seven years ago an extra $300 plus uncompensated damage (minor but annoying) caused by the renter when she moved annoyed me. If not for my wife's soothing presence and calmness of mind I would have walked away from the deal.

6. Marco  •  Jun 4, 2009 @12:05 pm
   

   Almost all HOA contracts have some sort of clause "HOA superseded by applicable Federal, State, and Local Ordinances." We once had a place with a HOA Nazi who would ride his bike around and look over 6' privacy fences to detect violations. He had us written up for having a dog house in the back yard of our 2 story house. So I put the dog house in the garage for a day, and just had local animal control come over and write me a citation for not having shelter for the dog. Viola, Local Ordinance superseded the HOA, and we kept our dog house in the back yard again for the 7 years we lived there. I'll bet if someone closely looked at Larison's HOA contract, there is a similar loophole.

7. Mike  •  Jun 4, 2009 @1:01 pm
   

   Ken, two points.

   1. I agree that people should be more leery of HOAs. Yet often people are first-time buyers or unsophisticated buyers. I would be happy if the law simply required HOAs to put, in bold print, "WE ARE LOSERS. WE ARE PETTY TYRANTS. IF YOU MOVE HERE, YOU ARE UNDER OUR CONTROL." At least then there would be disclosure. If you still signed the contract because it's in a "good neighborhood," well then, fuck you and your prole bumper stickers.

   2. Well, it *is* often the case that the salesperson or whomever LIED about what was in the contract. So the cost of litigation is high because people fucking lie. I'm not sure a bright-line rule allowing liars would make the world most just.

   I had some friends (very sophisticated lawyers) who did a deal (on behalf of a very sophisticated client) with a famous mixed martial arts organization. Whenever they'd get a "red line" contract back, the changes would not be in red. They'd hide additional terms in un-related paragraphs. Each time this organization would attempt to smuggle a clause in. That's some slimy shit.

   If that's what this org is trying to pull when dealing with Skadden lawyers for Fortune 100 company; I can't imagine what they pull on everyone else.

   That's what people do when they write contracts. So I don't have any sympathy for people who then have to litigate in court whether the contract was induced fraudulently. Stop fucking lying and being a scum bag unethical fuck!

   People like to say, "Don't sign the contract." I like to say, "Don't lie about what's in the contract."

   And thus the debate goes on and on.

   Incidentally, I am in support of full disclosure clauses. Every material term must be clearly stated. You can't hide anything. You can't insert unrelated provisions into a paragraph to hide that term.

   Sure, even that creates something of a loophole. What is "related"? La, la, la. But it reconciles the two sides.

   Don't be stupid. But don't be shady, either.

8. Grandy  •  Jun 4, 2009 @1:03 pm
   

   Ken, isn't calling this advertising a HUGE strentch? It's it just as likely that that some tight-assed neighbor decided that was TOO MANY BUMPER STICKERS and is wielding the rule in question as a means to do something about it? It's classic Bureaucracy in action.

9. Charles  •  Jun 4, 2009 @1:05 pm
   

   I’ll bet if someone closely looked at Larison’s HOA contract, there is a similar loophole.
   I don't know if the First Amendment is going to apply here.

   my perspective is that HOAs are notorious for being stuffed with pushy, all-their-taste-in-their-mouths little Napoleons who enjoy dictating how their neighbors live

   I think that you are jaded by your position as both an attorney who is trained to expect the worst from everyone they deal with. I think in a world of voluminous shrink-wrap agreements, "click to accept these terms" buttons to check the progress of your package and opaque credit card agreements with terms that change whenever the company mails you a replacement copy, the idea that people "read" one-sided contracts is one that I can't believe that the law still recognizes. (I'm looking at you too, insurance binder!)

   I'm pretty sure that the only person that ever reads most contracts is the third-year associate stuck proofreading it until a different attorney has to write a motion to dismiss.

10. Mike  •  Jun 4, 2009 @1:40 pm
    

    I'll just start signing contracts. When I sign it, I don't intend to follow it. Signing it was a lie.

    Why is that somehow viewed askancely?

    Yet when people lie about what's it a contract is just part of the game. Well, you signed it.

    Sure, I signed it. So what. It was a lie just like all the lies the salesman told me. If he can lie about what's in the contract, I can lie about following the contract.

    Seems weird to me. Lying is OK at some points, but not others?

    With a contract, you're both making explicit promises. You're also making implicit promises – namely that you're not lying about what's in the contract.

    The, "You signed the contract" view ignores the implicit duty of honesty in a contract's formation. Yet that same crowd demands that people who signed the contract abide by it. IOW, if you sign the contract, your signature must have been sincere and honest.

    That doesn't make sense to me.

    If we're going to let people lie and be sleazy, let's let everyone do it. Thus, you trick me into signing a contract. Hah! I trick you into believing that I'm going to follow the contract; so I sign it. Hah-hah!

    I can't say I like either extreme view.

11. Ken  •  Jun 4, 2009 @3:35 pm
    

    Well, it *is* often the case that the salesperson or whomever LIED about what was in the contract. So the cost of litigation is high because people fucking lie. I’m not sure a bright-line rule allowing liars would make the world most just.

    But here's the thing. Litigation is not limited to cases where the salesman did, in fact, lie. Because there is no loser-pays rule, there is no real barrier or disincentive to throwing in a fraud-in-the-inducement claim every time you want to break a contract that you've decided you don't like — whether you didn't bother to read it or whether you read it but didn't consider how its terms would be unpalatable later or whether you knew damn well the terms might be unpalatable later but now you just don't want to accept the downside of the terms you agreed to.

    The parol evidence rule is so weakened in many jurisdictions — and fraud in the inducement so easy to plead and to slip past summary judgment — that the protections provided by a contract are frequently rendered worthless in litigation.

    The, “You signed the contract” view ignores the implicit duty of honesty in a contract’s formation. Yet that same crowd demands that people who signed the contract abide by it. IOW, if you sign the contract, your signature must have been sincere and honest.

    The problem is that our system gives you an incentive to lie about the other person lying, so that you can prolong litigation, evade motions to dismiss and motions for summary judgment, and force the defendant to decide between giving you big bucks and spending bigger bucks on a trial.

12. Mike  •  Jun 4, 2009 @4:34 pm
    

    Ken, I was talking philosophy of contracts, not law or litigation. I was speaking more towards you initial point: "Free people can surrender freedoms by contract. That’s part of freedom and adulthood (and would be a part of being a grownup.)"

    As for the litigation system, that's a separate mess.

    Then again, a lot of breach of contract cases involve really long, nasty, boring, sneaky contracts.

    I'd like to see a system where contracts were put into plain language.

    Yet no one wants plain language contracts. Part of that might be tradition. Part might be legal employment needs…. Hard to justify $400+/hr. to use clear prose (even though clear prose is harder to use than legalese).

    Part of the need for weirdly-worded contracts is to sneak shit in.

    So over often the party getting wrongfully sued wasn't exactly Ward Cleaver.

    Plus, in California, there is Civil Code Section 1717. So the idea that there is no loser pays doesn't really apply to Cal. state court contracts. If you want to avoid having the other guy wrongfully sue you, include an attorneys fee provision.

    I think every state should have a Section 1717. Why they don't…. I don't know.

13. Jdog  •  Jun 4, 2009 @4:36 pm
    

    I am reminded of a time that a writer friend of mine (I'll call him "Bob", but his name is Steve. Steve Brust) upon seeing his first book contract, asked for a clause in which the publisher explicitly waived any right to bugger his eldest-born male child, a boy then of tender years.

    "No," the publisher responded. "We can't do that. We don't want to set a precedent."

    True story.

14. Leslie  •  Jun 4, 2009 @4:36 pm
    

    A lot of HMO's ask that no yard signs be posted, that's okay. But to say what is on your vehicle is crap. This is a Marine for goodness sake!!! Didn't that stupid HMO "director" get that these guys paid with their LIVES for their stupid souls to push their rights on everybody else? If they still won't let him keep the stickers, then by GOD hang the US Marine flag on a pole!!!

    Semper Fi

15. Charles  •  Jun 4, 2009 @4:56 pm
    

    Loser-pays rules + Vastly unequal resources = De facto prohibition on suing the rich.

    Google can afford to be indifferent to your legal fees regardless of the merits of their defense. Before you sue Google, how sure do you have to be going in that you will win your case? 90%? 95%? How many lawyers are willing to tell their clients – the ones with valid claims, even – that they should go forward with that suit?

16. Shay  •  Jun 4, 2009 @8:09 pm
    

    If he has lived in this development for eight years with no fuss raised about his bumper stickers until now, then something else is going on.

    New neighbor? Old feud?

17. Rick C  •  Jun 5, 2009 @12:23 pm
    

    Ken, would you consider those bumper stickers advertising, like the HOA claims? If so, would you consider Obama bumper stickers similar advertising? If so, then shouldn't the HOA go after people with those as well? Because they're not.

18. Brian Dunbar  •  Jun 5, 2009 @12:51 pm
    

    If so, then shouldn’t the HOA go after people with those as well? Because they’re not.

    Perhaps they have not gotten around to them yet.

    You look at that big-ass EGA on the back of his car, it's pretty blatant. A teeny-tiny yard sign, not so much.

19. Patrick  •  Jun 5, 2009 @12:54 pm
    

    Ahem, Ken.

    Look at the series of Twitter updates from Lawrence Lessig beginning here.

    I'll quote them (this is going on in real time as I write):

    in an absolutely hilarious struggle to get #thrifty to give me a copy of the contract they want me to sign. "Not possible" they say.

    "And you want it to be enforceable?" "Of course." "Without me reading it?"

    the farce that is consumer "contract" law.

    but that's the point — code isn't a "contract" but now they want to turn a contract into code.

    30 minutes into the call. #Thrifty still can't produce a contract.

    the agent dumped me back to the queue. next time: the recorder is on…

    well, one solution would be to make the agreement available before someone comes to the rental agency…

    Thrifty Car Rental is trying to force Lawrence-freaking-Lessig, Stanford Law Professor and one of the leading authorities on the internet, to sign a contract without reading it. No doubt the electronic version will include language stating that Lessig has in fact read it. Or they won't give him a rental car.

    I've endured similar ordeals at airports. Like Lessig, like you, I insist on reading anything I sign before I sign it.

    But most people in an airport don't have the time, energy, or stubbornness to insist on reading the fine print. And if you insist, you have to wait 30 minutes, at least if you're dealing with Thrifty Car Rental.

    Credit card agreements are the same. They're contracts of adhesion. You know what would happen to anyone who insists on negotiating with a credit card company over terms. No credit card for you. But you can't live without a credit card in America, or at least you can't live a middle class lifestyle. You're more familiar than I am with what the government does to people who carry, or negotiate transactions, using large amounts of cash.

    You know what happens to a homebuyer, at closing, who insists on reading and understanding everything he's asked to sign. He's rushed and hurried by the paralegal (in most states), and the realtor, who want to get their checks and leave. You know what happens to someone who wants to negotiate about a clause in an auto insurance policy? Tough luck.

    We live in a nation where the law of contract is sacred. But most of the contracts we sign, and among those the most important, are contracts of adhesion.

    I know the contents of an auto or homeowners insurance policy, in my state, more fully than almost anyone in the state. I know them upside down and inside out. Yet I can't negotiate a single one of the really important terms for myself. They're all rate bureau forms. And I've had insurance agents misrepresent their contents to me, because the agents didn't know them as well as they should have (I'd like to assume), or because they were lying.

    The concept of the contract of adhesion is one that's due for an update and a revisitation by the courts. And to say you find a guy like Frank Larison irritating, or the person who gets attacked in a parking deck when the ticket stub says "not responsible for personal injuries or acts of third parties," because they didn't read the thing, or because they did and didn't consider the consequences and all their ramifications, goes a bit far.

20. Ken  •  Jun 5, 2009 @2:32 pm
    

    Patrick, I think you are lumping a lot of very different contracts of adhesion together, and then comparing them to a dissimilar contract. Buying a house is a life event that is different in scope and frequency than parking your car. I don't think it's unreasonable to expect people to seek to review the terms that will govern the community where you are about to buy a house. Also, a prudent person might avoid the rush you describe by asking for pertinent docs in advance. That's what I did with my recent refinance. And that's certainly what I'd do before accepting an HOA, which are notorious.

    Yes — you'd have to live a fairly extreme lifestyle if you wanted to avoid contracts of adhesion. But Lessig demonstrates that one can be aware of them and decide whether or not to play the game.

21. Charles  •  Jun 5, 2009 @2:47 pm
    

    Lessig demonstrates that if you are Lawrence Lessig and your life – as both a law professor and public intellectual – is dedicated to exposing this kind of nonsense, you will be willing to endure a half hour on the phone with Thrifty. You also are avoiding the issue of selective enforcement, as Shay pointed out. Even if he was aware of the terms, if he is similarly aware that the terms are not enforced as a matter of course, I'd say Larison still has a right to complain.

22. Matthew Brown  •  Jun 5, 2009 @10:03 pm
    

    I'm suspecting in this case that it doesn't matter whether or not Larison read the contract – the issue is that the HOA is interpreting the rules and regulations in a way Larison did not anticipate. Apparently they're trying to claim they're "advertising"; would you expect that a HOA rule on advertising would actually prohibit Marine Corps stickers? Not necessarily, and the code is probably packed full of such things.

23. Rick C  •  Jun 6, 2009 @8:37 pm
    

    You look at that big-ass EGA on the back of his car, it’s pretty blatant. A teeny-tiny yard sign, not so much.

    I will admit that I had not seen any pictures of the car in question until reading this post, radio not being a terribly visual medium.

24. Barry W  •  Aug 20, 2009 @8:34 am
    

    This is ridiculous. What kind of American's are running this HOA? The HOA should be working to make it easier to live there rather than trying to run peoples lives. His stickers are not an advertisement, but a show of support for our troops. He is not selling anything, nor do any of his stickers have contact information for someone to sign up for the military! I think the HOA board is overstepping their bounds in classifying this as an advertisement. HOA's try to tell people they can't have flags, but by law passed after 9/11 they cannot prevent them from having one! Time for the community to have a vote for new board members!

25. Charles  •  Dec 10, 2009 @4:10 pm
    

    The homeowner's association has relented.

26. Charles  •  Dec 10, 2009 @4:17 pm
    

    Whoops. This is a different veteran with a homeowners association who, in asking for the removal of a 21 foot flagpole, wasn't being the same kind of unreasonable.

    A quick search didn't turn up anything more recent about Mr. Larison.

27. Patrick  •  Dec 11, 2009 @8:08 am
    

    I chose not to comment or post on that one Charles, not because I've changed my opinion of the sort who serves on an HOA board, but because a 21 foot flagpole, well… Jackass comes to mind.

    Even if he won the Congressional Medal of Honor. I think many HOAs are vermin, but in this case I think they were right.

    I probably should have posted on this as an "on the other hand," but it's been a busy week.