Do you know what kind of rules are considered unenforceable or illegal?
Homeowners’ Associations (HOAs) are governing bodies that establish rules and regulations to maintain order and harmony within a community. These rules, commonly called HOA rules, protect property values and ensure a desirable living environment.
While most HOA rules are enforceable and serve a valid purpose, certain restrictions may be deemed unenforceable in some instances.
Rules deemed unenforceable include those that conflict with federal or state law, are applied in a discriminatory or inconsistent manner, or are implemented without following the correct procedures.
I will explore unenforceable HOA rules, their existence, and how homeowners can deal with them.
Working as a Massachusetts Realtor for the past three decades, I have withnessed a few associations try to enforce illegal rules one of the board members tried to get past the homeowners. This lawlessness eventually catches up and the regulations will be deemed illegal.
An HOA abuse of power is certainly not uncommon.
Understanding HOA Rules
HOA rules typically cover many topics, including architectural guidelines, property maintenance standards, pet policies, and noise restrictions.
These rules are outlined in the HOA’s governing documents, which include the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), bylaws, and laws and regulations.
Homeowners must adhere to the CC&Rs or other community rules. Failure to do so may result in fines, loss of access to shared areas, and other penalties.
The Importance of Recording Association Documents
One critical aspect often overlooked by homeowners associations (HOAs) is the necessity of recording their governing documents, including the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and bylaws, with the registry of deeds.
This process is not merely a formality but a legal requirement that ensures these documents are enforceable.
In Florida, for instance, the CC&Rs and bylaws must be recorded with the county where the association is located to be considered legally binding. This step is crucial for the HOA’s operation, as it legitimizes the association’s rules and regulations, making them enforceable against the homeowners.
Without this, the HOA may find itself in a precarious position, unable to enforce its rules or facing challenges from homeowners about the validity of its regulations. Therefore, HOA boards must ensure their governing documents are properly recorded and updated as necessary to reflect any changes or amendments made over time.
This helps maintain the legal standing of the HOA’s rules and prevents disputes that may arise due to unrecorded or outdated documents.
What Are Unenforceable HOA Rules?
Unenforceable HOA rules are those that, despite being included in the governing documents, cannot be legal HOA rules. Illegal rules tend to be more familiar with condos and townhomes, but they can also happen in single-family developments.
Several factors can render a statute unenforceable, including:
Contradiction With State or Federal Laws
HOA rules contradicting local, state, or federal laws are considered unenforceable. For example, if an HOA rule prohibits the installation of solar panels on a homeowner’s property, but state laws guarantee homeowners the right to use solar energy, the rule would be unenforceable.
Another example is the use of satellite dishes. If your HOA requires you to take down your satellite dish or antennas, you can contest this regulation.
According to the Federal Communications Commission’s (FCC) OTARD (Over-the-Air-Reception Devices) rule, an HOA may not prohibit residents from installing antennas or satellite dishes on its property.
However, it is essential to note that your HOA may still have the authority to restrict the size of satellite dishes or establish guidelines concerning their placement.
Violation of Constitutional Rights is Illegal
HOA rules that infringe upon homeowners’ constitutional rights, such as freedom of speech, religion, or the right to privacy, may be deemed unenforceable.
For instance, an HOA rule prohibiting homeowners from displaying political signs on their property might be unenforceable as it interferes with their freedom of speech.
Lack of Proper Approval is Not Enforceable
HOA guidelines that have yet to be approved may sometimes be considered unenforceable. Depending on the HOA’s governing documents, regulations and amendments may need to be approved by a certain percentage of homeowners or through a formal voting process.
For example, a condominium association could not arbitrarily raise the HOA fees or add a special assessment without a vote from the owners.
Follow these procedures to ensure a law is enforced.
Unreasonable or Arbitrary Restrictions
HOA rules considered excessive or arbitrary may be challenged and deemed unenforceable. Courts often evaluate whether the restriction serves a legitimate purpose. They also need to be applied consistently to all homeowners.
Excessively restrictive or selectively enforced rules are more likely to be considered unenforceable.Click To TweetEnforced Rules Without Authority to Do So
An HOA (Homeowners Association) has the power to establish rules and regulations for its community, but this authority is not without limitations. HOA fines can only be imposed if a resident has violated a community rule.
In other words, your association cannot impose fines without proper justification or evidence of a regulation violation.
If you believe you have received an unfair fine, it is vital to review the community regulations and challenge the fine with the HOA if it seems you have not violated any rules. To improve your chances of a successful appeal, it may be beneficial to seek the guidance of a real estate attorney specializing in handling disputes.
HOA Rules Are Enforced Selectively
Potential issues can result when HOA rules are not consistently enforced. If your HOA only enforces rules against specific individuals or groups, these rules may not be enforceable. HOA violations need to be enforced equally across the board.
Specifically, if the association targets a protected class of individuals, it may violate the Fair Housing Act. If it can be proven that the enforcement is selective, they could face discrimination charges.
Rules Without a Majority Vote
Every Homeowner’s Association (HOA) follows specific procedures outlined in its bylaws to create or amend new rules. These procedures include voting by community members to approve proposed rules.
If you believe the HOA is trying to enforce a rule that was not correctly added to the community rules and regulations, take action.
Understanding the HOA’s procedures for creating new rules is essential. This may involve researching and reviewing the HOA’s bylaws, meeting minutes, and other relevant records.
Doing so lets you determine if the necessary procedures were followed and assess whether you are violating a policy.
Regulations That Are Discriminatory in Nature Are Unenforceable and Illegal
The Fair Housing Act prohibits housing discrimination based on factors such as race, disability, ethnicity, religion, sex, or familial status. In addition to these protected categories, some states have also implemented laws prohibiting discrimination based on other factors, such as sexual orientation and gender identity.
If you encounter discriminatory HOA laws and wish to file a complaint, contact the U.S. Department of Housing and Urban Development or complete the online complaint form on their website.
Removing Your Rights Under The Constitution
The Second Amendment of the United States Constitution guarantees the right to possess firearms. However, while your Homeowner’s Association (HOA) may have the authority to impose limitations on carrying or using firearms in shared areas, it cannot establish regulations that prohibit or restrict residents from owning guns.
Suppose you believe any rules imposed by your HOA are unenforceable. In that case, you should voice your concerns to the board or management company and, if necessary, seek assistance from a local or state agency.
Rules Striking Down Freedom of Religion
Another right protected by the Constitution is religious freedom. It is crucial to note that if the rules of a homeowner’s association (HOA) explicitly exclude members of certain religious groups from the community or restrict their access to shared spaces, these regulations would violate the Fair Housing Act.
Additionally, even if the rules do not explicitly mention religion as the basis for exclusion, you still have the option to file a complaint with the management company or the U.S. Department of Housing and Urban Development if the intention behind the rules is religiously motivated.
Consistent Enforcement is Necessary
Consistent enforcement is the backbone of effective HOA rule implementation. An HOA’s credibility hinges not just on the rules themselves but on how fairly and uniformly they are applied. Inconsistencies in rule enforcement can erode trust within the community, leading to disputes and legal challenges. As a Realtor, I have heard of selective enforcement on several occasions.
This reinforces the fiduciary duty of HOA board members to act in the community’s best interests. This includes upholding a consistent enforcement policy. Failure to do so undermines the association’s authority and exposes it to legal liabilities. If selective enforcement is perceived as discriminatory or arbitrary, it can compound the problems.
HOAs must establish clear, transparent procedures for rule enforcement, including a standardized process for addressing violations and imposing penalties. This ensures that all members are treated equitably. The rules should serve their intended purpose of maintaining harmony and order within the community.
Consequences of Unenforceable HOA Rules
When an association attempts to enforce an unenforceable rule, it can have various consequences for the association and the homeowners involved. Here are some potential outcomes that may arise in such situations:
Legal Challenges and Lawsuits
Homeowners who believe rules are unenforceable can legally challenge the association’s actions. They may file a lawsuit against the HOA, seeking a court’s intervention and a declaration that the government is unenforceable.
Legal action can be complex and costly. It requires the expertise of an attorney specializing in HOA law.
Court Intervention
If homeowners decide to take legal action, the court may review the case and determine whether the rule is unenforceable. Courts will consider factors such as conflicting laws, constitutional rights, or procedural errors in the rule’s establishment.
If the court declares the statute unenforceable, it may issue an injunction to prevent the HOA from taking disciplinary action against the homeowner for violating the law.
Damages and Legal Costs
In some instances, homeowners who successfully challenge an unenforceable HOA rule may be entitled to seek damages from the HOA. These damages can include reimbursement for legal fees, expenses incurred during the dispute, and any harm or inconvenience caused by the association’s enforcement attempts.
The court will assess the damages based on the case’s specific circumstances.
Reputational Damage
HOAs that repeatedly attempt to enforce unenforceable rules can suffer reputational damage within the community. Homeowners may lose faith in the association’s ability to govern effectively and fairly, which can increase tension and conflicts.
High tension levels create a divisive and unpleasant living environment. The sale of a condo within the community could also become more challenging.
Legal Challenges and the Role of the Courts
When homeowners believe an HOA rule is not enforceable, they may resort to legal challenges, seeking court intervention. This judicial review process is crucial. It provides a mechanism for resolving disputes between homeowners and HOAs regarding the enforceability of specific rules.
The courts evaluate various factors, including the rule’s compliance with state and federal laws, its reasonableness, and whether it was adopted under the HOA’s governing documents. A court’s declaration that a rule is not enforceable can have significant implications, such as preventing the HOA from taking disciplinary action against the homeowner for violating the rule.
Successful legal challenges can lead to changes in HOA policies. This ensures that future regulations are crafted and enforced fairly, reasonably, and legally compliant. It reinforces the importance of homeowners understanding their rights and the legal recourse available when dealing with potentially illegal HOA rules.
Navigating Unenforceable HOA Rules
If homeowners believe a rule is unenforceable, reviewing the governing documents carefully and consulting an attorney specializing in HOA law is crucial.
Legal professionals can guide the laws applicable in the jurisdiction and recommend the best action to challenge an unenforceable rule.
Final Thoughts
HOA rules play a significant role in maintaining community standards and enhancing property values. However, it is essential to understand that not all HOA rules are enforceable.
Unenforceable HOA rules may arise due to conflicts with state or federal laws, HOA violations, lack of proper approval, or unreasonable restrictions.
Homeowners should know their rights and seek legal counsel when rules are made illegally. Doing so will ensure a fair resolution and protect their interests within the community.
About the Author: Bill Gassett, a nationally recognized leader in his field, provided real estate information on unenforceable HOA rules. Bill has expertise in mortgages, financing, moving, home improvement, and general real estate.
Learn more about Bill Gassett and the publications in which he has been featured. Bill can be reached via email at billgassett@remaxexec.com or by phone at 508-625-0191. For the past 38+ years, Bill has helped people move in and out of Metrowest towns.
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I was wondering if my h.o.a could force me to take down my above ground pool. it’s not visible from the front or side of the home, only visible from the second story of a neighboring home, which i dont believe i have ever seen my neighbors on their balconies….ever. lived there over a year now. always kept clean and maintained. it’s a temporary thing for the summer and we do not have a community pool like the other community neighborhoods. one of the h.o.a people from their backyard snapped a picture of it and sent it in. mind you the pool came months after we did our backyard originally. The angle of the picture is a little suspicious of how it was obtained . Any and all help is very much appreciated.
Staci – it would depend on what the bylaws state about having one.