A homeowner’s association board has the authority to restrict a range of activities, including everything from painting to holiday decorating, as long as the action is reasonable, due to the contractual relationship between the association and its regular members. This authority is contained in the HOA constitution and general association bylaws.
If you are a member of the HOA community, you already know all of this. The most important thing is that you are familiar with the HOA rules and regulations for your community. But are there any rules the HOA can’t enforce? The answer is yes. Let’s find out what the unenforceable HOA rules are.
Table of Contents
Key Takeaways
- Not all HOA rules and regulations can be enforced, some are not legal
- If HOA rules are in conflict with Federal or State law, rules are unenforceable
- You can challenge your homeowner’s association about certain rules and their enforcement
Homeowners rights against HOA
For members of HOA communities, it is common knowledge that you must have HOA approval and permit before beginning any type of project, renovation or construction, including:
- Changing roof line
- Building or construction work (before applying for a building permit)
- Demolition work (before applying for a demolition permit)
- Making changes to your lot that require zoning approval (before applying for a zoning permit)
- Building any type of pool, hot tub or outdoor spa (before applying for a pool permit)
But are some HOAs trying to implement rules that are infringing on rights of homeowners? In some cases, yes. Any type of violation of your human rights, or Federal or State law is illegal. Unenforceable HOA rules concern:
- Freedom of speech
- Discrimination
- Religious freedom
- Right to bear arms
- Majority vote
- Inconsistency and selectivity
- Violation of Federal or State law
- Prohibiting solar drying
- Antenna restrictions
- Fines without a reason
Let’s explain them.
Unenforceable HOA rule 1 – Freedom of speech
The US Constitution protects the right to free speech, and HOAs cannot conflict with constitutional rights. This means that homeowner associations can’t prohibit individuals from displaying their political preferences on their property. But, they can create rules that limit where political signs can be placed on your property for aesthetic and curb appeal purposes.
If you believe your HOA is violating your free speech rights, you can file a complaint with the Board of directors, or even escalate the matter to local or state authorities, if necessary.
Unenforceable HOA rule 2 – Discrimination
The Fair Housing Act (1) prohibits discrimination in housing by a variety of entities, including landlords, HOAs, real estate companies, municipalities, banks, lending institutions, and homeowner’s insurance companies. Such discrimination is prohibited on the basis of:
- Race,
- Color,
- Religion,
- Sex,
- National origin,
- Familial status,
- Disability.
In cases where fair housing rights are denied through the use of force or threats, the Ministry of Justice can initiate criminal proceedings. In addition, the Fair Housing Act provides procedures for individuals to report and address complaints of discrimination.
Victims of illegal housing practices can file a complaint with the Department of Housing and Urban Development (HUD – 2) or take legal action themselves in federal or state court.
Unenforceable HOA rule 3 – Religious freedom
The right to religious freedom is also protected by the Constitution. If homeowner association regulations specifically exclude members of certain religious groups from the community or restrict their access to common areas, these regulations would be in violation of the Fair Housing Act.
However, HOA may have a rule that restricts religious displays or activities in a common area, as long as the wording is not directed at a particular religion. In such cases, the regulation may have an indirect effect on religious practices, but it applies equally to all faiths.
Even if the regulations don’t specifically mention religion as a reason for exclusion, you can still file a complaint with the Board or the US Department of Housing and Urban Development if the motive is clearly religious discrimination.
Unenforceable HOA rule 4 – Right to bear arms
Is it possible for an association to limit an individual’s right to bear arms? Well, the answer is nuanced. There are two different situations to consider.
When it comes to your home, HOA can’t prohibit you from owning a firearm. The Second Amendment (3) protects the right of the people to keep and bear. HOA is not authorized to establish regulations that prohibit or restrict homeowners from possessing firearms.
On the other hand, your HOA has the power to impose restrictions on the carrying or use of guns in common areas.
If you believe that rights of homeowners have been violated, you may bring your concerns to the Board of Directors and, if necessary, seek assistance from a local or state agency.
Unenforceable HOA rule 5 – Majority vote
Any new rule or bylaw in the HOA regulations must go through the procedure that is written in the CC&Rs. HOAs cannot enforce rules unless the community is notified, invited to a meeting and voted on. If the proposal does not receive a majority vote, it is unenforceable.
Even if a proposed rule receives a majority vote but is not added to the Community Rules and Regulations (CC&Rs), the rule cannot be enforced. Only when the rule is properly added to the rules and regulations of the community can it be enforced.
Unenforceable HOA rule 6 – Inconsistency and selectivity
Selective enforcement occurs when a rule applies to one homeowner but not others, or when some rules are applied while others are ignored. If your HOA does not enforce the rules fairly and consistently and does not follow proper procedures for enforcing the rules, then it is possible that those rules may not be enforceable.
State laws and most documents governing HOAs outline procedural requirements that associations must follow when enforcing the rule, including giving written notice and the opportunity for the board to hear from the homeowner.
Inconsistent application of these requirements or selective application of the rules means that you have a reason to challenge the Board, or even sue them. But keep in mind that although you have the right to take legal action against your HOA for selective enforcement, the litigation process can be time-consuming and expensive. It is also important to note that HOA Boards usually have insurance to cover defense costs.
Unenforceable HOA rule 7 – Violation of Federal or State law
All homeowner association’s governing documents, including bylaws, must comply with federal and state laws and constitutional rights. In the event of a conflict between the association’s rules and the law, the law prevails, making the rule unenforceable.
HOAs can’t enforce any rules that go against federal or state laws. A good example would be displaying the U.S. flag on your property. According to Freedom to Display the American Flag Act (4) HOAs can’t restrict or prevent a member from displaying the U.S. flag on residential property.
Unenforceable HOA rule 8 – Prohibiting solar drying
Homeowners associations often target clotheslines, deeming them unsightly and attempting to prohibit residents from hanging laundry outside to dry. However, depending on your location, HOA rules regarding clotheslines may not be applicable due to state laws.
For example, states such as Florida, Colorado, Hawaii, Maine, Maryland, and Vermont have “right to dry” laws that prevent HOAs from enforcing such rules. However, HOA rules may still dictate where clotheslines can be placed and their size.
In many states (almost half), HOAs are prohibited from restricting solar drying, which saves money and protects clothes, but may not meet the HOA’s aesthetic standards. However, if your yard is shared with another homeowner, the association may have the authority to restrict your use of the clothesline.
Unenforceable HOA rule 9 – Antenna restrictions
If your HOA is pressuring you to remove your TV antenna or satellite dish, don’t worry, because you have a reason to challenge the ordinance. Under the FCC’s OTARD (Over-the-Air Reception Devices Rule – 5), HOAs can’t prohibit residents from installing aerials, antennas or satellite dishes on their property.
Also, the FCC’s wireless receiving device rule protects your cable TV choice. No matter how unattractive your space gray satellite dish looks to your HOA Board members, they have no power to force you to take it down.
However, it’s worth noting that your HOA may still be authorized to limit the size of satellite dishes or dictate where they can be placed.
Also, some HOAs may still have antenna restrictions listed in their contracts. These could be archaic provisions from before 1997 when the FCC rule went into effect. If you encounter these unusual additions to your CC&Rs, it’s best to bring your concerns directly to the Board members and show them the FCC rule.
Unenforceable HOA rule 10 – Fines without a reason
If you have HOA issues and you started receiving threatening letters demanding that you change the color of your mailbox, or your pool covers, prune your rose bush or pay a fine, check your community’s CC&Rs before complying. Or if they are coming to you personally, just ask them. If no penalty is listed, you don’t have to pay it.
Keep in mind that this doesn’t mean your HOA board will agree. You may have to appeal the fine. Review the CC&Rs first to make sure you stand. Then gather all the evidence you have and present it at the next Board meeting, following the HOA’s specific instructions for this procedure.
If your argument is convincing, it can lead to the charges being dismissed. HOA fines can only be imposed if a community rule has been violated. Your HOA can’t just fine you without justification or proof of a rule violation.
HOA problems
As we have seen, many HOA problems and HOA issues can arise between HOA board members and community members. Usually these problems can be solved in 1 of these 4 ways:
- Board meeting
- Dispute Resolution
- Mediation and arbitration
- Legal actions
First, start by sharing your problem with a Board in an email or an official letter. Choose your words wisely, try not to offend anyone. In many cases this will be enough to resolve issues. If this doesn’t work, talk to the Board members at your next meeting. Or ask them to schedule one.
Second option, if the first one doesn’t go as planned, is to dispute the Board’s resolution. Common causes of HOA disputes include:
- Disagreements over rule violations
- Fines
- Interpretation of rules and agreements
- Inconsistent enforcement
- Special assessments
- Dues increases
To resolve disputes, the HOA should follow its standard resolution process, but the Board should not be involved in the case to ensure objectivity. A neutral third party, such as an HOA management company or attorney, should be appointed to resolve HOA problems and provide a solution that takes both sides into account.
You can find a template for alternative dispute resolution letter here.
Third option is mediation and arbitration. Mediation involves a trained mediator helping the parties reach a compromise or middle ground, while arbitration involves a neutral third party making a final decision based on the evidence presented.
The last option is to sue HOA. Suing homeowners association is usually a long and expensive process, and state laws or governing documents may require mediation or arbitration first.
How to sue HOA?
If none of the actions mentioned above worked and you are suing homeowners association, these are 6 steps you should take before the trial:
- Read your CC&Rs – You should read it for two reasons. First to check if the rules that HOA is trying to enforce are mentioned there. Secondly, to see if mediation and arbitration are necessary before suing.
- See an attorney – Before filing the lawsuit you should talk to an attorney. Our advice is to find someone who is familiar with laws regarding HOAs. They can advise you about your homeowner rights in HOA and how to have the strongest case possible.
- Consider the time and cost – This process can be time consuming and you should take into consideration the money that you are willing to spend. If you and your neighbors decide to sue as a group, other members of the community can join you as plaintiffs. This way you can split the cost.
- Evidence – Don’t go to court unprepared. Gather everything you have, pictures, videos, documents, receipts. Our advice is to label each of them with titles, dates and places. Every piece of evidence matters. Also, remember to print enough copies.
- Settlement – Before going to the court, try to settle with your HOA. If you have a strong case, backed up by evidence this shouldn’t be a problem. During settlement negotiations you should ask for the amount of money that you find fitting. If you are not sure what is the proper amount, you should talk to an attorney.
- Prepare opening statement – If there is no settlement and you decide to go to trial, you should prepare your opening statement about your HOA problems. Both sides will have their statements, but since you are the one who is suing, you will go first. Try keeping it brief.
These tips will help you, but the final decision is in the hands of a judge.
Unenforceable HOA rules FAQs
How much does it cost to sue my HOA?
These types of lawsuits are usually considered to be small claims lawsuits. It will cost you between $30 and $80 to file a small claims lawsuit.
How much money can I get from suing HOA?
When it comes to small claims lawsuits, the maximum amount of money that you can get is $10,000.
How do you handle conflict in an HOA meeting?
Effective communication is key to avoiding conflict, here are some tips if the situation at the meeting becomes heated:
– Make sure that your answers to questions are clear and accurate, including dates, times and names of participants.
– Be calm, respectful and polite when dealing with an upset Board member.
– Stay firm on the requirements you have. If necessary reiterate why the rules aren’t enforceable.
– If necessary, seek mediation from an unrelated third party, such as your community manager.
Protect your homeowner rights in HOA
If you’ve already read our previous articles on HOA rules and HOA permits, you already know that the best way to avoid fines is to have a professionally done site plan for permits. But when it comes to unenforceable HOA rules, things can get a bit more complicated.
We believe we’ve provided you with plenty of resources and ways to challenge your HOA board when it comes to rules and regulations that simply aren’t enforceable.
References
- The United States Department of Justice – The Fair Housing Act
- U.S. Department of Housing and Urban Development
- Constitution – Second Amendment
- Public Law No: 109-243 – Freedom to Display the American Flag Act of 2005
- FCC – Over-the-Air Reception Devices Rule
- Featured image – freepik photo, author: wayhomestudio (link)
- freepik photo 1, author: wayhomestudio (link)
- freepik photo 2, author: freepik (link)
- freepik photo 3, author: freepik (link)
- freepik photo 4, author: wayhomestudio (link)
- freepik photo 5, author: wayhomestudio (link)
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- freepik photo 7, author: wayhomestudio (link)
