Court Says HOA Can Issue Speeding Ti . . .
Court Says HOA Can Issue Speeding Tickets; What's Next, Undercover Ops?
The Illinois Supreme Court held in January that an HOA's hired security officer could stop and issue a valid speeding ticket againsta home owner. Here, we explain the court's decision in Poris v. Lake Holiday Property Owners Association and whether the court's reasoning would likely be upheld in other states.
Three sides: The Owner's, the HOA's, and the Court's
Kenneth Poris was an owner in the 2,000lot Lake Holiday Property Owners Association in unincorporated LaSalle County, Illinois, about 60 miles southeast of Chicago.
The association hired a security chief and employed several security officers, though they're not allowed to carry firearms. It also adopted a number of rules, including one that prohibited owners from resisting or obstructing the performance of a public safety officer or refusing to comply with an officer's lawful order; it also required owners to comply with requests to see identification, like a driver's license and a member's amenity pass. Speed limits within the HOA are set at 25 miles per hour, and the rules set fines for various speed limit violations.
On October 20, 2008, one of those security officers clocked Poris going 34 mph on an association road and pulled him over. Poris objected to being detained, though the officer told Poris he wasn't being detained; the officer eventually issued Poris a speeding citation.
Poris then sued to prevent enforcement of the citation, arguing he felt unable to leave the scene and "under arrest." He later amended his complaint to argue that the association's security rules at issue were void because it didn't have the authority to conduct such activities. "The … plaintiff's argument is that, in creating its security department, the association was unlawfully exercising police powers that it had not been granted, and was unlawfully empowering its employees with police powers that they did not have, so that any actions taken by the security department were unlawful," the court summarized.
The court didn't buy Poris's argument. "…The Lake Holiday security officers only stop and detain drivers for violating association rules occurring on private association property, and citations are only issued to association members," the court held. "The appellate court failed to consider the association's enforcement of its rules and regulations in the context of its authority as a voluntary association to enact and enforce those rules and regulations… courts generally will not interfere with the internal affairs of a voluntary association absent mistake, fraud, collusion or arbitrariness."
Translation: You voluntarily joined and agreed to abide by the rules, Mr. Poris, and the HOA's rules are reasonable in the context of its management role. You lose.
On One Hand, Poris is Bad Law
So is the Poris court out in left field, or is itsopinion a reasonable interpretation of the power of HOAs? Our experts are divided.
"It's a terrible, terrible idea," say Robert Galvin, a partner at Davis, Malm & D'Agostine PC in Boston who specializes in representing condos and coops, of the court's decision to allow HOA security officers to stop and issue tickets. "It's one thing if you have security officers who give a parking ticket. Let's suppose you have a bylaw or rule or regulation that if you park in an incorrect spot in the common area, we can give you a parking ticket, and it's $25. If that's in your bylaws, it's enforceable. But to stop a car in motion and detain the driver is a bad idea. It's one thing if you're a city police officer who's trained and regulated, but it's a terrible idea to have someone who's not a police officer stop and detain. It's virtually certain the HOA will be sued for something like unlawful arrest or violation of the owner's rights.
"Most of these security people aren't very well trained, and they're responsible only to the people whose business it is to make money," adds Galvin. "The liability to the association is huge. If you observe somebody speeding and the bylaws provide for it, you could send or slip under the door a speeding ticket. The question then becomes how you knew the driver was speeding. But you shouldn't stop and detainperiod. That's what the police are for."
On the Other Hand, Poris Makes Sense
However, Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations, says the court's opinion was well reasoned. "I can see the rationale behind it, particularly in the circumstances involved in that case," he explains. "The way we go from the establishment of a community to the implementation of governing documents to the authorization to pass rules and regulations, and finally to whether those should be enforced and how a community might go about thatall that made sense. So I can't criticize the result. It does give me a little concern about how far that line extends."
Kevin Britt of The Law Office of Kevin L. Britt, who specializes in representing associations in the Seattle area says the court's decision is based on settled law. "The court said it won't interfere absent mistake, fraud, collusion, or arbitrariness, and that's blackletter law just about everywhere," he explains. "Courts are hesitant to interfere with associations' internal actions. As long as boards aren't abusing their covenants, courts aren't going to get into it.
"I'm not outraged by this in the way perhaps others were," Britt adds. "I understand why a community like that would want and even need the authority to do that. In Washington state, the law gives associations the ability to specifically establish these roadway regulations and enforce them. HOAs, as opposed to condos, have had that right since 1995. Right now in our pending legislative session, there's a proposal to give condos the authority to do much the same thingto pass traffic regulations and enforce them. So when I read the opinion, I wasn't overly surprised the court would uphold the association's ability to regulate roadways in a private community, and that's really what they were getting at. The HOA wasn't trying to assert police powers it doesn't have. It was just enforcing its covenants and regulating roadways in a private community."
Britt says the HOA's location may also be important to note. "Look at where this was, a private lake community of about 1,500 homes," he explains. "That HOA looked like some remote private communities we have here in Washington, where if the association doesn't do those things, nobody will. So it's a necessary and reasonable exercise of the HOA's authority to ensure the safety of its roadways."
Of course, this type of activity could expose the HOA to liability. "The association is employing agents and employees to enforce regulations, and any time you have HOAs act through employees and agents, there's a potential the HOA will be sued, and it could be held liable for the acts of its agents and employees," notes Britt. "That's certainly a risk. But that could be said for so many necessary things association do every day, so I don't see that as preventing them from doing their business. It's a cost of doing business."
Does This Mean HOA Officers Can Pack Heat?
Is the Poris case the beginning of a slippery slope in terms of HOAs' police powers? In the future, will they be doing drug raids on owners' homes?
"I don't think this case necessary signals that all police powers are fair game for community associations," says Drewes. "The HOA wasn't given the authority to police itself in any fashion it wants. HOAs still need to be reasonable, and I think it was significant here that it wasn't a community association taking on the role of law enforcement in terms of investigating and prosecuting a criminal violation. That's dangerous for the accused and people attempting to enforce criminal violations privately. And no matter what their background, HOA security officers aren't going to have the same training and procedures as law enforcement.
"I share the concerns about how rules enforcement and ticketing are being done, but the greater concern for me is where the line ultimately gets drawn and whether HOA leaders are reasonable and responsible in any changes they make as a result of seeing this case," adds Drewes. "In addition, HOAs need to be careful not to create situations where true law enforcement departments aren't comfortable or thinkthey can abdicate their role in a community."
HOAs assuming they have more authority than they do is also a concern of Jenny Key, the Austin, Texasbased vice president of RealManage, a San Rafael, Calif., association management firm that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas.
"About 10 years ago, I worked in New Mexico managing an association, and this was a topic of discussion," she explains. "The HOA was out in the county where there wasn't as much of a police presence. We were given the impression then that we couldn't do this type of activity.But if I remember correctly, it was more because we didn't have the equipment you'd need to document speed properly, like radar.
"I'm a big fan of letting all the other entities that serve HOAs serve them," Key adds. "When HOAs take on too much, things can unravel, and they don't take care of the things they were created to handle. I realize a lot of public services are stretched thin, but it's scary to pull people over. And most HOAs that have issues with speeding put in things like speed bumps, roundabouts, and other traffic management devices like signs that will tell you how fast you're driving. That's the way they typically go."