If someone acts, talks, and punishes you like a parent, are they your parent? What if they act like your parent with the consent of your actual parent?
In American law, under the state action doctrine, if a private entity acts on behalf of a government entity, its actions are considered state actions and are bound by the U.S. Constitution. However, state action is not limited to entities acting under government direction—it also applies when an entity mirrors the structure and function of a government.
America is growing more diverse and homeownership is increasing. As the demand for suburbs increases, HOAs are gaining attention. Traditionally, HOAs have been very authoritarian. Given the functions they perform and the extent of their control over homeowners, one may assert their actions should be state actions.
In Marsh v. Alabama (1946), the Supreme Court ruled that a private company town’s actions were state actions because the town performed a public function traditionally carried out by the government. The Court reasoned that private ownership did not exempt the town from constitutional constraints since it effectively operated as a municipality. Similarly, HOAs regulate various aspects of community life, impose fines, enforce rules, and control property use—roles traditionally associated with local governments. While they may not impose millage or repair roads, they establish and enforce regulations in a way that significantly impacts residents’ rights and daily lives. Under Marsh, one could argue that HOAs perform a public function and should therefore be subject to constitutional limitations.
Even if HOAs are not considered public entities, their enforcement mechanisms could still bring them under the state action doctrine. In Shelley v. Kraemer (1948), a private racial covenant was found unconstitutional because it required court enforcement. The Supreme Court held that while private agreements themselves are not state actions, judicial enforcement of those agreements transforms them into state actions.
HOAs rely on courts to enforce their rules, from imposing fines to foreclosing on properties. If a court upholds an HOA’s demand—such as forcing a homeowner to remove personal property or restricting land use—it effectively turns a private contractual dispute into state action. Applying Shelley, HOA-enforced restrictions, particularly those that infringe on fundamental rights, should be scrutinized under constitutional principles.
State courts have generally rejected the argument that HOAs engage in state action. The primary reasoning is that HOAs are voluntary, contractual entities rather than government substitutes. Unlike company towns in Marsh, homeowners theoretically consent to HOA rules when they purchase property within an HOA-governed community. However, this shouldn’t negate HOAs from the public-function test.
These egregious state court decisions have effectively allowed HOAs to maintain their authoritarian grasps on young, eager homeowners and minorities pursuing the American dream. I truly believe that at least some restrictions need to be put on HOAs such that new homeowners in America can live in communities that really espouse true American values of freedom, the pursuit of happiness, and liberty. Although founded for various reasons like increasing house value, covenantal ends don’t justify the means.
