Your Guide To Unenforceable HOA Rules

If you buy a home with a homeowners association (HOA), you may be subject to monthly or annual fees, as well as certain rules. People love to complain about their HOA’s rules. And while many HOA rules are binding, some HOAs try to enact regulations and rules that simply aren’t enforceable.

If you have an HOA, it’s important to understand which rules may not be allowed under state or federal law, as well as what to do if you find yourself subject to unenforceable HOA rules.

What Is An HOA And What Does It Do?

An HOA is an organization that governs a specific community. HOAs often exist in planned communities, subdivisions and condo complexes. They are usually run by a board that’s made up of members of the community who are elected.

It’s the job of an HOA to create covenants, conditions and restrictions (CC&Rs) to protect the character and safety of the community. HOAs can also provide services that may include landscaping and maintenance of community areas, garbage pickup, shared utilities (such as community pools), security and more.

HOAs also enact rules that community members must abide by. Some HOAs are relatively lax, while others have strict rules. Some examples of HOA rules might include what type of fence you can build (or whether you can build one at all), whether you can have detached buildings like garden sheds on your property, and even what color you can paint your home.

Community members who violate HOA rules can be subject to fines, prohibited from using community areas, and even have liens placed on their homes.

HOAs also charge dues to their members, which can range from less than $100 per year to thousands of dollars per year. These dues help keep the HOA running and pay for the various services it offers in the community.

HOA Covenants That Might Be Unenforceable

It’s easy to feel annoyed with your HOA’s strict rules, especially if you want to change something about the outdoor aesthetics of your home and the HOA says no. But in some cases, it could actually be that your HOA is trying to pass or enforce covenants that aren’t enforceable. Here are some questions to ask yourself if you think your HOA’s rules might be unenforceable.

Do The HOAs Have Authority To Enforce The Rule?

If you’ve received a fine from your HOA, ask yourself whether the HOA really had the authority to impose it. Yes, HOAs can impose fines on community members who violate certain rules. However, they can’t impose fines without actual justification.

For example, let’s say your HOA receives a complaint from a neighbor claiming you’ve violated an HOA rule. The HOA can’t impose a fine without actually verifying that you’ve violated that rule.

Does The HOA Enforce Selectively?

Another thing your HOA can’t do is enforce rules selectively. In other words, they can’t only enforce the rules with certain individuals or groups of people while letting others get away with rule violations. To do so would violate the Fair Housing Act.

Suppose you want to build a brown fence on your property but the HOA claims that only white fences are allowed. But shortly after, a member of the HOA board builds a brown fence on their property and the rest of the board looks the other way. That would be an example of selective enforcement and wouldn’t be enforceable by the HOA.

Depending on the situation, selective enforcement could actually land the HOA in hot water. Because the Fair Housing Act prevents housing discrimination, if the HOA selectively enforces rules against protected classes, it could be subject to legal action.

Does The Rule Discriminate Unfairly?

Just as an HOA can’t selectively enforce its rules, it also can’t pass rules that discriminate against certain people. Federal law prohibits HOAs from passing rules that discriminate against people based on race, ethnicity, disability, religion, sex or other factors. Individual states may have even more expansive protections.

An example of an HOA passing discriminatory policies might be one that prohibits someone from building certain modifications on the outside of their home to make it accessible to someone in a wheelchair.

If your HOA passes a rule that you believe discriminates unfairly against certain groups, you can file a complaint with the Department of Housing and Urban Development.

Does The Rule Violate Homeowners’ Rights?

An HOA can’t pass or enforce any rules that violate a homeowner's constitutional rights. Here are some examples of what might be considered a violation of a resident’s rights:

• Freedom of speech: A rule that prohibits residents from displaying political signs on their property would be a violation of the first amendment freedom of speech. However, HOAs can restrict where on a property someone can display a sign.
• Freedom of religion: A rule that bars residents from accessing community spaces with their religious group when the space is available to other groups would violate someone’s freedom of religion.
• Right to bear arms: A rule that prohibits residents from owning firearms or keeping them in their homes would be a violation of the second amendment right to bear arms. However, an HOA can make rules about firearms in HOA community spaces.

Does The Rule Conflict With Government Laws?

There are various federal, state and local laws that regulate what rules an HOA can and cannot pass. While laws will vary depending on where you live, here are some things an HOA can’t prohibit you from having on or at your home in various parts of the country:

• Solar panel systems
• Clotheslines
• Certain types of landscaping
• Electric vehicle charging stations
• Satellite dish/antenna

As we mentioned, many of these laws are location specific. For example, states prone to drought often prevent HOAs from prohibiting synthetic or drought-resistant landscaping.

In other cases, laws simply regulate common targets of HOAs. For example, some states, including Colorado, Florida and Maryland, have “right to dry” laws that ensure residents' rights to have clotheslines on their property.

If an HOA isn’t allowed to prohibit certain items on residents’ properties, they may have the right to stipulate where on your property a certain item can be. For example, while an HOA may not be able to stop you from having a clothesline, it may be able to regulate the size of the clothesline or where on your property it can be.

Did The Rule Receive A Majority Vote?

Some HOA rules may be unenforceable if they weren’t passed correctly. HOA bylaws usually have procedures in place to create new rules or amend the current CC&Rs. For example, an HOA might need a majority of votes to implement a new rule. In some cases, these voting requirements might even come from state law.

If you find out an HOA rule wasn’t passed correctly based on state law or the HOA bylaws, it may be unenforceable.

How To Fight HOA Rules That Are Unenforceable

If you determine an HOA rule isn’t enforceable, you can fight that rule. Your first course of action will likely be to approach the HOA board directly. Explain what rule you think is unenforceable and why. Put your thoughts in writing to create a paper trail. In some cases, that might be enough to get the HOA to throw out the rule.

If the HOA board isn’t willing to address the rule themselves, you may need to file a dispute. Depending on where you live, your state may have a dispute resolution in place for HOA disputes. In many cases, this process will involve going through mediation or arbitration.

Finally, if none of the above options work, your last resort may be to take legal action. In some cases, you might simply file a lawsuit in your state court. But for more serious violations, such as cases of discrimination, you could take the matter to federal court. If the matter requires mediation or arbitration, there may be legal costs associated with overturning it.

FAQs: Navigating HOA Rules

Are you having trouble with your HOA rules and feel they may be unenforceable? Here are a few frequently asked questions about how HOA rules work and how to deal with those you don’t agree with.

Does local law supersede HOA rules?

Yes, federal, state and local laws all supersede HOA rules. Your HOA can’t pass a rule that violates local law. If the laws change and an existing rule is no longer in line with the law, the HOA will have to throw it out or cease enforcing it.

How do I find CC&Rs for my property?

If you’re in the process of buying a house, you should be able to get the CC&Rs from your real estate agent. You may also be able to get HOA documents from the county assessor or title company. You should also be able to get any HOA documents from the HOA directly.

Can an HOA change rules after I buy property?

Yes, HOAs can change their existing rules and create new ones. Each HOA is subject to certain bylaws, or even state laws, that govern how new rules can be enacted.

Can HOAs change rules without a vote?

Each HOA is subject to certain bylaws, and often even state laws, that regulate how new rules can be adopted. While a vote among community members usually isn’t required, the bylaws usually require a majority vote of HOA board members.

Can my HOA ban solar panels?

Whether your HOA can ban solar panels depends on where you live. The good news is that more than half of states and the District of Columbia protect homeowners’ rights to install solar panels.

The Bottom Line: Do Your Homework If You Think An HOA Rule Is Unenforceable

HOAs may be able to regulate much of what you can do with the exterior of your home, but they don’t have unlimited power. There are plenty of restrictions that HOAs aren’t allowed to pass and rules that are unenforceable based on federal, state and local laws.

If you’re shopping for a home, you can see the HOA rules for a certain neighborhood ahead of time. Those rules can give you a good idea of whether a certain neighborhood is right for you.

Are you ready to buy a new home? Get started with Rocket Homes^SM and begin working with an expert real estate agent in your area.