While rules are meant to keep the community safe, clean, and pleasant, some associations implement rules that are unreasonable — and downright illegal. Homeowners associations must keep in mind that although they have the authority to enforce rules, that authority has limits.
What are HOA Rules?
In order to understand what unenforceable homeowners association (HOA) rules are, it’s important to first be familiar with HOA rules in general. Essentially, HOA rules or covenants are policies that are implemented within a neighborhood or community. HOA rules are put in place to preserve property values and to regulate the behavior of residents.
HOA rules vary depending on the community. The exact rules can be found within the association’s Covenants, Conditions, and Restrictions (CC&Rs) and apply to every member of the community — including homeowners and tenants. In a nutshell, HOA rules dictate what homeowners can and cannot do.
Are HOA Rules Even Legal?
If you’re thinking, “Does this mean that the HOA can restrict what I can do?”, you are right. The HOA has the authority to implement restrictive covenants that are legally binding. Restrictive covenants limit what a resident can do to their property (e.g. building a shed and painting the exterior wall) and what they can do inside their property (e.g. turning the home into an office).
When you buy a property in a community that is regulated by an HOA, you will have to follow their rules even if you don’t agree with them. That’s why it is important to thoroughly read and understand the CC&Rs before moving into a home. If you have a property manager, you can ask them to walk you through the rules.
What are Unenforceable HOA Rules?
Although an HOA has the authority to enforce CC&Rs, certain rules are unenforceable. Unenforceable HOA rules are those that go against the law. HOAs cannot create covenants that are contrary to federal and state laws. In addition, unenforceable HOA rules may be defined as rules that are:
- Against the law
- Enacted incorrectly
- Enforced selectively
- Enforced with no authority
#1 Rules That Violate the Law
HOA rules should always complement federal and state laws. Hence, an HOA cannot create CC&Rs that violate or breach the law.
Freedom of Speech
HOAs can’t prohibit their members from expressing their political views. In many states, associations don’t have the power to prevent homeowners from putting up political signs especially during elections. The most they can do is to limit where and when they can post their signs. For instance, an HOA can restrict residents from putting up signs that may affect the community’s curb appeal.
The FHA prohibits discrimination in housing. Hence, an HOA cannot discriminate against homeowners based on their color, disability, familial status, national origin, race, religion, and sex.
It’s worth mentioning that some states have expanded the list of protected classes. For instance, in California, they have laws that prevent discrimination on the basis of someone’s gender identity.
Satellite Dishes and Antennas
Thanks to the Over-the-Air Reception Devices (OTARD) Rule, HOAs cannot prevent residents from installing satellite dishes or antennas. It basically means that an HOA can’t stop you from watching television.
There are, however, some exceptions to the OTARD Rule. An HOA may supplement the rule by prohibiting satellite dishes of a certain size, for instance, those that exceed one meter in diameter. An HOA may also limit where the devices can be installed in order to preserve the historical architecture of the community.
Yes, there are state laws on clotheslines! It may seem silly but many states — such as Maryland, Florida, and Colorado — have made it illegal for associations to ban residents from drying their clothes outside.
However, this “right to dry” law does offer an HOA room to impose restrictions regarding the size and location of the clothesline. For example, an HOA may require clotheslines to not be higher than the fence so as not to affect the neighborhood’s aesthetics.
There are hundreds of federal and state laws that HOAs have to abide by. If you’re establishing an HOA, you may want to look into laws such as the Servicemembers Civil Relief Act, Freedom to Display the American Flag Act, American Clean Energy and Security Act, and much more. To make sure you’re not stepping on any laws, it’s best to hire a multi-family property management company.
#2 Rules Enacted Incorrectly
An HOA can’t enact laws whenever it wants to. Associations need to follow proper procedures when introducing or amending rules and regulations.
For example, many HOAs require members to vote on rules. If a rule doesn’t receive the majority vote, it may be unenforceable. Similarly, some states require HOAs to register their rules with the Land Records office. Failure to do so would render the rules inapplicable.
#3 Rules Enforced Selectively
When an HOA enforces rules inconsistently, it may be held liable for violating the Fair Housing Act (FHA). For instance, if an HOA fines a certain protected class but not others, they may be charged with discrimination.
Inconsistent enforcement also applies to rules that are in force but not applied. For example, if an HOA has rules against colored fences but has not enforced the rule in over 10 years, they may have a difficult time penalizing those who have painted their fences within those 10 years.
#4 Rules Enforced With No Authority
HOAs have limited authority. Yes, an HOA can fine its members, but it can’t impose a fine without a valid reason. For example, an association may fine you for violating the CC&Rs but it cannot fine you simply because it can.
As always, the HOA is governed by federal and state laws. It cannot overstep the boundaries.
The Bottom Line
HOAs should not have unenforceable rules, otherwise, they may find themselves in legal trouble. To ensure that the rules complement the law, board members should consult HOA management companies.