What are unenforceable HOA rules?
Whether you currently live in an HOA community or are about to purchase a home in one of these communities, HOAs tend to have a high number of rules that homeowners are expected to abide by.
Even though being a homeowner in one of these communities means that you must adhere to the guidelines that the HOA maintains, there are some unenforceable HOA rules that you don’t need to follow.
It’s highly recommended that you know what these rules are to protect your rights as a homeowner.
In this article, we’ll break down everything you need to know about unenforceable HOA rules.
What are HOA Rules?
In the event that you buy a home that’s part of a homeowner’s association, you will immediately gain membership with this association, which means that you will be directly responsible for adhering to all of the guidelines and regulations that have been put into place.
The main reason that HOA rules exist is to make sure that your property investment is protected and to maintain a certain standard among the broader community. HOA rules exist is to make sure that your property investment is protected and to maintain a certain standard among the broader community.
HOA rules can involve everything from occupancy limits to holiday decoration restrictions.
What are Unenforceable HOA Rules?
As mentioned previously, HOA rules are put in place to make sure that all community members follow the same guidelines and exhibit acceptable behavior while in the community.
While the HOA can require homeowners to follow a large number of different guidelines, there are limits to the HOA’s authority.
That’s where unenforceable HOA rules come into play.
If you’re finding it difficult to determine the difference between unenforceable HOA rules and enforceable ones, the rules that are considered to be unenforceable will fall under one of the four categories below.
Violates Rights or Breaches Laws
An example of unenforceable HOA rules involves any rules that violate your rights or breach laws.
State and federal laws invariably take precedence when compared to HOA rules.
In the event that a rule violates the written law, it can’t be enforced.
Unenforceable HOA rules that are known to violate rights or breach laws include:
No Power to Act
Unenforceable HOA rules can also involve situations where the HOA doesn’t have the authority to enact the rule.
For instance, while an HOA is able to fine homeowners who don’t adhere to the set guidelines, HOAs aren’t allowed to fine homeowners just because they want to.
Fines can only be levied in the event that the HOA governing documents list the issue as a rule.
Enacted Incorrectly
It’s possible for unenforceable HOA rules to be ones that are enacted incorrectly.
If the rule that’s been enforced was placed in the HOA rules and covenants when the HOA was first incorporated, it shouldn’t be an issue for these rules to be enforced.
While it’s perfectly fine for HOAs to change and add to their rules over time, there is a specific way that an HOA can change rules.
The governing documents or state laws should detail how rules can be changed.
If your community is told to adhere to a new rule, it would exist as part of unenforceable HOA rules if the HOA didn’t follow the correct procedures.
For instance, Georgia requires HOA boards to have a membership vote that amounts to a super-majority in order for an amendment to the original declaration to be approved.
There are also times when HOAs will set their own guidelines on how governing documents can be amended, which could involve everything from notice requirements to the need for a written petition.
Enforced Inconsistently or Selectively
Are you finding that your HOA isn’t enforcing all of the HOA guidelines equally?
If so, this means that those guidelines would be considered unenforceable HOA rules.
As mentioned previously, every HOA has governing documents that will precisely detail the requirements that the association needs to follow when they enforce a rule.
These requirements could involve providing homeowners with the ability to discuss the issue with the HOA board or sending a written notice.
If the HOA doesn’t follow these procedural guidelines, the homeowner could choose to challenge the rule and its enforcement of it.
It’s also possible for selective enforcement to occur, which is when an HOA board applies a guideline to one homeowner without requiring other homeowners to follow the rule.
These situations are considered to be unenforceable HOA rules.
If selective enforcement of a rule has occurred, you could file a lawsuit against the HOA.
Keep in mind, however, that litigation can be expensive and time-consuming.
Proving selective enforcement is also challenging without supporting documentation.
Next, we’ll take a look at 5 specific unenforceable HOA rules.
5 Unenforceable HOA Rules
Some of the unenforceable HOA rules include:
Violation of Homeowner Rights
States like Massachusetts and New Jersey believe that HOAs are “quasi-governmental” entities, which means that rights like religion and freedom of speech can’t be infringed upon.
Religious Freedom
While religious freedom doesn’t directly apply to an HOA, state laws protect various types of religious expression, which means that rules that infringe upon these freedoms are unenforceable HOA rules.
Freedom of Speech
HOAs are required by most states to allow freedom of speech in regards to patriotic displays and political speech, which means that the HOA can’t disallow political signs on yards.
Arbitrary or Inconsistent Enforcement
When a rule is arbitrarily or inconsistently enforced, it would be considered part of the unenforceable HOA rules.
Right to Bear Arms
While HOAs are usually allowed to place restrictions on carrying guns in the open, a blanket restriction on gun ownership isn’t allowed.
What To Do About Unenforceable HOA Rules
You experience an unenforceable HOA rule.
Now what?
If you believe that your HOA has set unenforceable HOA rules, there are several steps you can take to fix this problem and reduce the possibility that it happens again.
If you have noticed unenforceable HOA rules, you can choose to:
Use the Dispute Resolution Process
Certain HOA governing documents and state laws require homeowners to use the dispute resolution process before they file a lawsuit.
This process, though time-consuming, is possible with arbitration or mediation.
Speak with the HOA board
Before you take any expensive legal action, you should speak directly with the HOA board to voice your concern about the rule and how you believe that it’s unenforceable.
This step can be done by writing a letter or attending an in-person meeting.
Make sure that you always maintain a professional tone.
Consider Legal Action
If you have evidence that unenforceable HOA rules have been put in place by your HOA, you may need to file a lawsuit, which can be done through state courts or federal courts if a breach of the Fair Housing Act has occurred.
The Bottom Line: Unenforceable HOA Rules
Regardless of your current living situation, being in an HOA means that you will need to follow an extensive list of rules.
Even though these rules can be strict and frustrating to deal with, they are typically enforceable.
It’s possible, however, for unenforceable HOA rules to exist if your HOA attempts to restrict your freedom of speech or inconsistently apply the rules.
If you believe that the HOA in your community has incorrectly enforced a rule, use one of the several steps detailed above to resolve the issue.
