What Should HOAs do about Unenforceable HOA Rules?
What are Unenforceable HOA Rules?
HOA rules are rules that members of an HOA community must follow. These rules exist to regulate members' behavior within the association. You can use HOA rules and covenants interchangeably and find HOA covenants within your association's Covenants, Conditions, & Restrictions (CC&Rs). These dictate the association's and the members' obligations and rights. In essence, both HOA rules and covenants dictate what homeowners (and the HOA) can and can't do.
You must then realize the extent of an HOA's authority. Neighborhood covenants are enforceable. Both HOA covenants and rules are legally binding and enforceable, and there are some exceptions to this statement, while some rules can be unenforceable.
But, how do you distinguish the unenforceable HOA rules from the enforceable ones? Rules are unenforceable if they fall under one or more of the following categories:
Violates rights or breaches laws
No power to act
Enacted incorrectly
Enforced inconsistently or selectively
Unenforceable HOA Rule #1: Violates Rights of Breaches Laws
Federal and state laws, including constitutional rights, precede all of an association's governing documents. Therefore, when a rule violates the law, it is unenforceable.
Typical HOA rules that fall under this category often have to do with the following:
1 Freedom of Speech
Homeowners and HOAs usually butt heads when it comes to freedom of speech. Commonly, the two areas of concern are political speech and displays of patriotism, particularly when it comes to signs.
Many associations restrict what signs homeowners can display, with some even banning all types. In some states, though, associations don't have much power.
The best course of action for HOAs is only to restrict the number, size, and location of political signs. Associations can also allow such displays only before and immediately following an election.
Flags are also a point of contention among associations and homeowners. They can, however, limit the size of the flag. But, thanks to the Freedom to Display the American Flag Act of 2005, HOAs generally can't prohibit homeowners from displaying the American flag.
2 Discrimination
The Federal Fair Housing Act prevents associations from discriminating against homeowners and potential homeowners based on their race, religion, national origin, sex, familial status, or disability. Therefore, a rule banning women from the gym during certain hours goes against this act.
Some states have also enacted laws that provide further defense for protected classes.
3 Right to Bear Arms
The Second Amendment remains a hot topic in the United States. For homeowners associations, though, the general rule is that they can't disallow residents from owning guns. This is one of the homeowners rights against HOA. But, the association can restrict weapons in open or communal spaces.
4 Religious Freedom
The Fair Housing Act and several state laws protect homeowners' right to religious freedom. Therefore, homeowner association rules that discriminate against a particular religion are unenforceable.
An HOA may have a rule restricting religious displays or activities in a common area. It is enforceable if the language does not single out a specific religion. In this case, the rule or covenant might indirectly interfere with religious practice, but it is applied equally to all religions.
5 Other Federal and State Laws
Several other rules might breach federal or state laws and are unenforceable.
Right to Dry. HOAs can't prohibit homeowners from hanging laundry on a clothesline in many states.
OTARD Rule. The FCC's Over-the-Air Reception Devices Rule prevents HOAs from banning satellites or antennas.
Landscaping. In a few states, homeowners should be able to use synthetic grass or plants that don't require much water in their landscaping.
Unenforceable HOA Rule #2: No Power to Act
If the HOA holds no authority to act on a specific rule, then the rule may be unenforceable. Fines are a great example to demonstrate this. Can a homeowners association fine you? Yes, HOAs can generally impose a fine when homeowners violate a rule. But, can an association fine you just because? That is a different story. The HOA can only impose fines for violations, provided the governing documents or state laws allow it.
Unenforceable HOA Rule #3: Enacted Incorrectly
Typically, an HOA records its covenants and rules in the declaration of incorporation. Such practices usually don't pose a problem.
Can an HOA change rules after purchase? If you just bought a home that belongs in an HOA community, don't expect the rules to remain the same forever. Many associations continue to change or add to their rules. It is not uncommon for HOAs to amend their governing documents.
But, there is a right way to create a new rule or change an existing one. Like the HOA's authority, you will find the proper enactment procedure within state laws and the association's governing documents. It is unenforceable if the HOA changes a rule or makes a new one without following guidelines.
Your HOA may also have stipulations for amending its governing documents, such as a written petition or notice requirements.
Unenforceable HOA Rule #4: Enforced Inconsistently or Selectively
State laws and most HOA governing documents outline the procedural requirements associations must comply with when enforcing a rule. When such procedural requirements are not met or are applied inconsistently, the homeowner can challenge the enforcement of the rule. Usually, this involves sending written notice and providing the homeowner with an opportunity to be heard by the board.
Many associations can fall victim to selective enforcement, another problem for HOAs. Some boards will apply a rule to one homeowner but not the other; this enforcement also happens when commissions apply some rules but ignore others.
Homeowners have a right to take legal action against their HOA for selective enforcement. But, keep in mind that you will need to prove that selective enforcement took place, which is often challenging. Additionally, the litigation process can take a lot of time and cost a lot of money. HOA boards typically have insurance to cover their defense fees as well.
Just "Enforceable" is Not Always the Best
It is not enough to have enforceable rules; the rules should also be good, which means they must exist for the betterment of the community. But, how do you determine whether a rule is good or not?
Good rules must be fair and reasonable. Even without the rule, common sense should dictate that it is the right thing to do. Good rules are also efficient in that they achieve their purpose. HOA boards must also ensure the rules are understandable and easy to follow.
Avoid Vague Language
Unenforceable HOA rules are not just ones that blatantly go against the law if they contain vague language. Vague language can create all sorts of misunderstandings. And rules with unclear terms can cause more problems for both the board and homeowners.
HOA boards should make every rule as clear and direct as possible. Use terms like "You must…" or "You shall…" to convey the mandatory nature of the rule. Don't beat around the bush.
Some rules include terms such as "nuisance" or "unappealing." Unfortunately, these terms leave much room for interpretation. To remedy this, HOAs should consist of language that gives the board sole discretion when deciding what nuisances or counts as unappealing.
What Can Homeowners Do?
Contrary to what some might believe, HOAs don't possess powers that make them impervious to homeowner action. When you encounter unenforceable HOA rules, there are several ways you can defend yourself or bring the matter to the board's attention.
Talk to the Board. Start expressing your concern regarding the unenforceable nature of the rule. You can do this in-person or by writing a formal letter. Use a professional tone and be careful not to place blame on anyone. In many cases, a sincere reaching out can change the board's judgment.
Dispute Resolution. Some state laws and governing documents require homeowners to undergo a dispute resolution process before filing a lawsuit. You can do this through mediation or arbitration.
Take Legal Action. You can challenge the validity of the rule/s in question in state court (or federal court if it breaches the Fair Housing Act).
Ask for Help
Homeowners associations should not have any unenforceable HOA rules. To ensure this, board members must see that HOA rules don't violate any laws or homeowner rights.
They must also ensure they have the authority to enforce these rules and enact or amend them according to the proper procedures set forth by state laws and the governing documents. Finally, boards must always enforce rules consistently and uniformly to avoid problems.
Please don't hesitate to contact Condominium Associates if you need further assistance!