A Guide To Unenforceable HOA Rules
Every HOA has rules that you, as a member, must abide by.
These bylaws govern things you can and cannot do.
That said, it’s important to understand your rights as a homeowner in an HOA.
There are some rules that are unenforceable.
What makes an HOA bylaw unenforceable?
Let’s take a look.
Rules that are selectively enforced
If your HOA doesn’t consistently enforce a rule, then it’s probably unenforceable. If your HOA seems to target specific individuals or groups of people, that also signals problematic behavior. This is especially applicable to HOA rules only enforced against a protected class of individuals. If your HOA crosses this line, they may be violating the Fair Housing Act.
Likewise, if a specific rule has been in the HOA CC&Rs for years but is just now going into effect, you could make a strong case against the rule.
State laws and HOA governing documents
Rules that violate state or federal laws
Freedom of Speech Violations
Political speech and political signs can cause issues between HOA members and HOA boards. For instance, a lot of associations restrict the kinds of signs people can have in their yards. In certain states, though, HOAs have very limited power in this area. In Maryland, HOAs cannot stop members from placing political signs on their property at all.
Most HOAs stick to rules governing the number, size, and location of political displays. They also typically restrict these allowances to right before and right after an election.
The Freedom to Display the American Flag Act of 2005 generally prevents HOAs from prohibiting flags under any circumstances. That said, they can still regulate the size of the flags.
HOA bylaws cannot contradict constitutional rights. Thus, HOA rules should pertain to things that impact aesthetics and curb appeal like the location and size of signs. If you think your HOA is limiting your free speech rights, file a complaint with the board or management company and, if necessary, take the matter to a local or state authority.
Second Amendment Violations
We know it’s a controversial topic in the United States right now. In general, though, HOAs cannot prevent members from owning guns. That said, HOAs can typically prohibit guns in common areas.
Freedom of Religion Violations
Part of the constitution protects religious freedom. Therefore, HOAs cannot enact bylaws that discriminate against certain religions.
HOAs may, however, limit certain religious displays or disallow specific activities in common areas. If the HOA isn’t targeting a certain religion in any of these rules, it’s enforceable.
If rules do target a certain religion or their intent is clearly aimed at a certain religion, then you may want to file a complaint with the management company or U.S. Department of Housing and Urban Development.
Dish/Satellite Restrictions
HOAs cannot prevent you from installing satellites for cable television due to the FCC’s Over-the-Air Reception Devices Rule.
Even if your HOA has antenna restrictions from before the enactment of the FCC’s rule, government laws supersede HOA regulations. So, go ahead and install that satellite if you want to!
Clothesline Restrictions
People who use clotheslines typically want to save money and help the environment.
And, although it seems odd, there are many HOAs who try to restrict members from drying clothes outside. HOAs tend to think clothesline harm the look and aesthetics of the community.
That said, if you’re in one of the nineteen states that have laws preventing HOAs from restricting clotheslines, then it doesn’t matter what rules your HOA has around “solar drying.”
These “Right to Dry” states are Arizona, California, Colorado, Florida, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Nevada, New Mexico, North Carolina, Oregon, Texas, Utah, Vermont, Virginia, and Wisconsin. And in these states HOA stipulations regarding “solar drying” are unenforceable HOA rules.
Rules that are enforced without authority
HOAs don’t have unlimited authority. They’re bound by the CC&Rs, their bylaws, and government laws. A good example of this limited authority is fines. Fines can only be imposed if you violate a bylaw or law. HOAs cannot impose fines at their discretion; they need justification and evidence.
Likewise, your HOA board can’t operate based on whims. If they suddenly decide they don’t like green mailboxes, they cannot simply outlaw these from the community.
The guidelines for new rules should be detailed in the CC&Rs. And they should involve the community and meetings. If an HOA is trying to sneak rules by members, that is major cause for concern.
Be sure to attend public meetings and, if you feel like something is off, request documents. Remember part of your responsibility as an HOA member is to keep the board accountable if you don’t like the direction your HOA is going.
Rules that are enacted incorrectly
HOAs must enact rules properly. An HOA usually creates its covenants and rules during its incorporation.
However, an HOA can change or add rules after its creation. It’s common practice for HOAs to change and add rules as time goes on due to societal and economic changes or for the betterment of the community.
That said, there is a proper way to change or add rules. The power enactment procedure should always be present in an HOA’s incorporating articles. If an HOA doesn’t follow these rules when making or amending rules, then those rules aren’t enforceable.
For instance, Georgia law requires HOAs to obtain a super-majority vote from members to pass amendments. In addition to this state example, most HOAs have their own rules regarding these matters as well.
Enforceability is the bare minimum
HOA rules should be for the betterment of the community. Just because a rule is enforceable doesn’t mean it’s for the betterment of the community.
Rules should be fair and reasonable. And common sense should provide a foundation for any rule. For instance, prohibiting green mailboxes isn’t a good rule unless there is a specific, thought-out reason for your HOA to enact this rule.
If you’re going to join an HOA, you want to find one that uses clear language in their documents and acts with integrity. Vague language within rules is a huge red flag. Unclear wording can lead to misunderstandings and problems for everyone.
Know your rights
As a homeowner, you can fight back against unenforceable rules. Here are three key ways to do that:
- Go to the board: Write a formal letter or go to a meeting. Let the board know exactly what is unenforceable about the rule. Act with respect and speak calmly. You don’t want to start a shouting match; you want to protect yourself and your community. Boards may change their mind if you spell things out clearly and calmly.
- Undergo dispute resolution: Certain states and CC&Rs require homeowners to go through a dispute resolution process before filing a lawsuit. This will often take place in the form of mediation or arbitration.
- Proceed with legal action: It’s a last resort, but you may need to take legal action. You can push back against the enforceability of rules in state or federal court.
Conclusion
HOAs shouldn’t have unenforceable rules. That said, things don’t always go the way they “should.” So, you need to know what to do if your board tries to enforce bad rules or make bad faith rule changes.
