The Long Arm of the Homeowners’ Association
A man in Mississippi was recently arrested and charged with a misdemeanor. No, he was not arrested of petty theft, prostitution, public intoxication, simple assault, disorderly conduct, trespass, or vandalism. Richard Atkinson was arrested for renting his house.
Via the Clarion Ledger:
Richard Atkinson is the second person to go to court because of a contentious city ordinance that makes a covenant breach a misdemeanor criminal offense. Atkinson is accused of continuing to lease a home in Northbay after Northbay Homeowners Association directors adopted a resolution last December that bans renters, even though he owned the home and was leasing it out before the ban passed.
How can this be? A city filled with small tyrants? Try and picture in your mind the people serving on homeowners’ associations - mostly placed their by their own vote and others’ apathy. Now picture them having the ability to send you to jail for unsightly Christmas decorations.
Let’s stop for a second and analyze what has happened here. Even as the M.S. Attorney General points out:
[R]estrictive covenants are generally private matters to be enforced by those for whose benefit the covenants were intended (i.e., home owners associations, private landowners). MS AG Op., Chamberlin (January 11, 2002).
And of course, this is a correct statement of the law. A homeowners’ association covenant is, when reduced to its simplest state, a contract. You agree to abide by the rules of the association, and, in return, the association works toward maintaining and increasing the property value of a neighborhood (or at a minimum maintains a mailbox under federal compulsion).
So by what authority has violating private contracts become criminal?
None. There are a couple of reasons.
Contracts are essentially exchanges of consideration (value). If I hold up my end of the bargain and you don’t, you owe me something. For example, I give you an interest loan and you fail to make payments, you owe me money. I can take you to court and force you to give it to me. But, at the same time, I couldn’t file criminal charges against you because violating a private contract is not a crime. Even Mississippi explicitly forbids criminalizing debt in the state’s own constitution: “SECTION 30. There shall be no imprisonment for debt.” Pretty straightforward.
The scenario gets a little dicier when you consider the scenario such as the following: I pay you money and in return you do my laundry. You take my money but refuse to do my laundry. Can a court force you to do my laundry if I sue you?
For an explanation, oddly, you’ll have to look back into this country’s history of slavery. There was genuine debate for many years as to whether slavery, or earlier indentured servitude, was valid. The right of two individuals to contract was held in such high esteem during the formative years of the Union that it was generally understood that one could contract away all rights to one’s self and personal labor. A huge swath of intervening history lead us to the 13th Amendment, which outlaws slavery.
The 13th Amendment is important when you consider what it means to breach a contract. Whenever the breaching party’s performance was to be physical service, courts have found it unlawful to force that person to perform the contract - it would be “involuntary servitude.” Instead, courts will determine the monetary damages and rule accordingly. So if you didn’t do my laundry, I would either get my money back or recover the cost of getting somebody else to do my laundry.
Apply this to the scenario of a homeowner renting their house in violation of the homeowners’ covenants (a private contract). They cannot be imprisoned for failure to perform the covenant’s terms, because such is an unlawful imprisonment for debt. They cannot be forced to comply because such is a violation of the 13th Amendments abolition of involuntary servitude. All the homeowners’ association should be allowed to recover is the damage they have been caused. And considering how ludicrous a renting moratorium for the sake of property values is, I would imagine such damages wouldn’t be worth pursuing in open court.
Yet the regulation criminalizing breach of a homeowners’ covenant still stands in defiance of both the M.S. and U.S. Constitution.
Not to mention, the idea that a homeowners’ association can prevent a person who owns their own property from leasing it to another is probably a violation of common law property jurisprudence. Typically, rules against alienation (one’s right to transfer property) are stricken by courts because property rights are paramount in a free society. See, e.g., White v. Brown, 559 S.W.2d 938 (1977) (a case most every law school curriculum cites for this notion). And it does seem at odds with ownership rights. Who really owns a house, the homeowner or the neighborhood association?
If this trend is not reversed, pretty soon it will be impossible to purchase a home without some kind of silly encumbrance. “You can’t build a house more than 2 stories, you can’t have a greenhouse, your driveway has to be paved, no decorations on the lawns during holidays, grass must be cut, etc. etc.” When you fail to do these things, you will have your house seized and sold from underneath you by the homeowners’ association. Though, if you live in Mississippi you might wind up in prison.
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