Anarchists and HOAs
I found myself thinking about these issues again in connection with a conversation that erupted on my Facebook page today. The focus was this article, brought to my attention by Radley Balko. One very thoughtful friend raised the question of crafting a specifically libertarian response to the problem posed by the ongoing conflict described by the article.
For me, the story serves as a very pointed reminder of why I don’t think HOAs and similar arrangements as optimal ways of organizing social relations without the state’s intervention. I wouldn’t wish the stresses associated with dealing with an HOA on anyone else. Surely anarchists can come up with more creative ways of structuring our lives together.
In any event, it strikes me that a libertarian response might include one or more of the following elements:
1. Non-Enforcement Under the Title-Transfer Theory? I’m not a particular fan of Rothbard’s title transfer theory of contract, but it occurs to me that there is perhaps an argument to be made that, on this theory (depending on whether one judges that there is any sort of title transfer in an HOA), the relevant sort of contract wouldn’t be enforceable at all (on the part of a court committed to Rothbardian principles, at any rate).
2. Money Damages Rather than Specific Performance as the Appropriate Remedy? Even if one does think the contract ought to be enforceable, I think it’s worth asking what sort of remedy ought to be available. It’s not obvious, at any rate, that the right remedy here is specific performance—perhaps it’s money damages. Certainly, I’d vote for this option over specific performance.
3. Non-Enforcement Per a Protective Agency’s Contract? It seems to me to be perfectly consistent with even a strictly Rothbardian anarchism (one different, therefore, from my own variety in a number of ways) for my own protective agency to decide in a situation like this that it wouldn’t provide enforcement services—provided its contract with users specified that its court system reserved the right to engage in the development of rules in common law fashion in the service of equity (no doubt the situation would be different if its contract specified that would it provide enforcement services in any and all cases, but [a] it seems unlikely that any credible agency would bind itself in this way and [b] “enforcement” still needn’t mean requiring specific performance, but might instead mean securing money damages).
4. Non-Violent Protest? A further libertarian response here might obviously involve non-aggressive protest, boycotting, shunning, etc. Someone engaging in this sort of response wouldn’t be arguing for a change in general legal rules related to the enforcement of contracts, but would be asking that the HOA reconsider its own rules, something any non-violent objector presumably has the right to do.
I’d be interested in readers’ reactions both to this specific story and to the broader questions it raises about the organization of social life and the resolution of conflict in a stateless society.
Comments
Forget the issue of a child's presence in a “retirement community.” Suppose instead that the issue is whether an owner can make a visible modification to a structure (say, by painting it an unapproved color or putting an unapproved pink flamingo in front). It's pretty clear here that enforcing specific performance would mean requiring that the house be repainted (perhaps doing so forcibly and then charging the owner?), the flamingo removed, etc. There is no corresponding performance that's being required on the part of the HOA. To the extent that common areas are being used by the homeowner, it would be the payment of her HOA dues (funding the upkeep of these common areas) that would entitle her to access them. A court's declining to facilitate an HOA's active interference with a homeowner's property wouldn't count as its requiring specific performance.
To the points you made:
1 & 2. In some sense you could view this as a trespass dispute since what the residents are really asking for is to exclude children from common areas. So it seems that specific performance might be the only solution, depending how you framed the question. If I tell someone to get off my lawn, can he just offer me a dollar instead of complying?
3. I think in a situation like this, you could certainly restrict specific benefits, like pool or clubhouse access, or a variety of other things. With security, though, I would think it's difficult to really exclude someone from the benefits since there's no way for a potential burglar to know that my particular residence is exempt. The free rider problem would be particularly bad in an HOA, I'm guessing.
Specifically, I've still not found a good rationalization for the idea of punishment for a crime. Restitution, yes, very much.. and that's something so lacking from our current justice system.
It seems to me that reputation would be an extremely important element of an anarchic society. Reputation is a risk mitigator. It provides a way for strangers to assess the risk of interacting with you. Based on that assessment, you would receive differential treatment economically and socially.
It also provides a means for people to form associations that have less chance of friction.
In this case, I would think there are multiple ways that reputation concerns would put pressure on both parties to resolve things more quickly. If others perceive that these grandparents violated the terms of a contract, they'll have a reputational hurdle every time they deal with someone else. Likewise, the HOA can't guarantee the environment that they're selling to new customers.
http://austrianeconomists.typepad.com/weblog/2007/04/new_paper_on_an.html
I can’t think of any way to prevent people from making these kinds of agreements so I’m inclined to choose your fourth point as the remedy (or the closest thing to a remedy that there is). If people come to understand that the implications of signing on to these sorts of things can be devastating, maybe they will eventually just fall out of favor. It’s interesting how a simple promise like saying you’ll never allow someone under the age of 18 to live in your home can turn into a life-or-death matter. I suppose that’s bound to happen when you’ve implicitly agreed to let any commitment to the restrictive community (in this case, the HOA), no matter how trivial, trump any commitment you may have, no matter how serious, to any other community that you figure in (e.g., your family), with a potentially huge penalty (homelessness) if you attend to those other commitments. The appeal of the restricted community is rooted in a very understandable desire for safety and security (stability, maybe?), but it seems like in practice these kinds of communities end up being fair-weather friends at best.