It is obvious that homeowners association regulations are imperfect because humans created them. You might want to think that your HOA’s rules are valid and enforceable. However, the truth is that many communities do have unenforceable HOA rules, and you might not even be aware of them.
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Unenforceable HOA Rules: What are they?
You must first understand HOA rules to comprehend why they are not enforceable. HOA rules are simply regulations everyone living in an HOA neighborhood must abide by. These guidelines are in place to control members’ conduct within the association.
Some individuals utilize HOA covenants and HOA rules interchangeably. HOA covenants can be found in your association’s Covenants, Conditions, and Restrictions document (CC&Rs). These establish the obligations and rights of the association and its members. Essentially, both HOA rules and covenants determine residents’ rights and responsibilities.
You must then understand the scope of an HOA’s authority. Do local covenants have legal force? Yes, generally speaking. HOA rules and covenants are both enforceable and legally binding. But there are certain exceptions to this statement. Some rules may not be enforced.
But how can you tell which HOA rules are enforceable and which are not? If a rule fits under one or more of the following characteristics, it is ruled unenforceable:
- It violates rights
- No ability to act
- Not properly enacted
- Inconsistently or selectively enforced
First Unenforceable HOA Rule: Violates Rights or Breaches Laws
All an association’s governing documents are superseded by federal, state, and constitutional legislation. As a result, regulation is unenforceable when it contravenes the law. The typical HOA rules in this category frequently concern the following.
Freedom of Speech
When it comes to exercising their right to free speech, homeowners, and HOAs frequently clash. Political speech and patriotic displays are frequently the two areas of concern, particularly when it comes to signs.
Many organizations restrict the signs that homeowners may post, and others even explicitly forbid all kinds. However, associations may not have a significant influence in some states. HOAs, for instance, are not always allowed to stop homeowners in Maryland from putting up political signs on their property around election time.
HOAs should only impose restrictions on political signs’ quantity, size, and position. Associations may also permit similar displays, but only before and after an election.
Additionally, flags are a source of conflict between associations and homeowners. HOAs are generally not permitted to forbid residents from flying the American flag, owing to the Freedom to Display the American Flag Act of 2005. They can, however, restrict the flag’s size.
Discrimination
Per the Federal Fair Housing Act, associations are not permitted to discriminate against current or prospective residents based on their race, gender, religion, national origin, disability, or familial status. Therefore, a restriction prohibiting women from using the gym during specific times violates this act.
Right to Bear Arms
In the US, the Second Amendment is still a controversial subject. However, the usual rule for homeowners associations is that they cannot prohibit residents from possessing firearms. One of the rights of homeowners against HOAs is this. However, the group may ban guns in public or shared areas.
Religious Freedom
Homeowners’ right to freedom of religion is protected under the Fair Housing Act and many state laws. Thus HOA rules discriminating against a particular religion are unenforceable.
An HOA regulation may prohibit religious displays or activities in a shared area. The rule is enforceable if it does not specifically mention any one religion. In this situation, the rule or covenant may indirectly obstruct religious observance, yet it still holds true for all religions.
Other Federal or State Laws
Several other rules might be unenforceable because they violate federal or state laws. These rules include:
- Right to Dry Clothes: HOAs cannot forbid residents in several states from using a clothesline to dry their clothing.
- OTARD Rule: HOAs are not permitted to prohibit satellites or antennas under the Over-the-Air Reception Devices Rule of the FCC.
- Landscaping: Homeowners should be able to utilize artificial grass or low-water-use plants in their landscaping in a few states.
Second Unenforceable HOA Rule: No Power to Act
A rule may not be enforceable if the HOA lacks the authority to enforce it. Fines are a good illustration of this. Can an HOA fine you? HOAs have the right to punish homeowners who break the rules. However, can an organization penalize you randomly?
That’s a different story. If the governing agreements or state laws permit it, the HOA may issue penalties for breaches. But if the state law doesn’t allow it, the HOA can not issue fines.
Third Unenforceable HOA Rule: Enacted Incorrectly
It is also important to consider how a rule was implemented. Normally, an HOA incorporates its covenants and rules into the declaration. These rules typically don’t cause issues.
Can an HOA modify its rules after a purchase? You shouldn’t anticipate the regulations to stay the same indefinitely if you recently purchased a property that is part of an HOA neighborhood. It frequently happens for HOAs to change their rules and regulations. In actuality, many groups keep revising or expanding their regulations.
However, there is a correct way to create or change a regulation. The association’s governing papers and state laws explain the enactment procedure. Changing or creating HOA rules without necessary processes is unenforceable.
Forth Unenforceable HOA Rule: Applied selectively or Inconsistently
Think your HOA enforces regulations unfairly? Does your HOA have the correct rule-making process? Therefore, the rules are unlikely to be followed. Most HOA governing papers and state legislation outline how organizations must enforce restrictions. The homeowner normally receives written notice and a board hearing. If formalities aren’t followed or the rule is inconsistently implemented, the homeowner may protest.
Another issue that many associations face is selective enforcement. Some boards may apply a rule to one homeowner but not another. This kind of enforcement also occurs when boards adhere to some regulations but disregard others.
Final Take
We hope this article has offered you all you need to know about unenforceable HOA rules. An enforceable HOA rule is one that violates rights, has no ability to act, is not properly enacted, and is inconsistently or selectively enforced.
