Can Homeowners Make the HOA Enforce a Rule?
You bought in expecting that everyone would be required to follow the rules -- but what if they're not?
Your neighbor just painted his home bright purple -- and you hate it! And, since you live in a planned community, you know that the community’s rules don’t allow bold exterior colors. Is there anything you can do to make the homeowner’s association (“HOA”) enforce the rules?
The options for a homeowner to get the HOA to enforce the community’s regulations and rules depend on the situation and what the community’s governing documents (generally, the Covenants, Conditions, Restrictions, and Easements (“CC&Rs”), the articles of incorporation, the bylaws, and any Rules and Regulations) say.
You might, for example, have the right to commence a legal action against an HOA that refuses to take enforcement action, remove a member of the board of the directors of the HOA, or amend the terms of the governing documents. Unfortunately, however, each of these options is typically time consuming, expensive, and difficult.
First, Meet With the HOA
If you are a homeowner with an issue with your HOA, the first course of action is to discuss the matter with its board of directors. Request a meeting with the board, and present facts about why you believe the HOA is required to enforce a particular rule.
Bring to the meeting a copy of the applicable provisions from the governing documents and any witnesses or evidence that might be helpful. For example, in the case of the bright purple house, make a copy of the provision in the CC&Rs or Rules and Regulations that prohibits bright colors, snap some photos of your neighbor’s house, and bring these items to the HOA meeting.
It’s always possible the HOA will agree with you and enforce the rule as you request. Even if the HOA does not have real enforcement powers (as discussed further in this article below) the rule need not be ignored. The HOA can take steps to attempt to get the offending homeowner to comply, such as sending written notifications of a violation.
Be sure to keep records of any such meetings with the HOA. These could prove useful in the event the HOA does not agree with your requests, and you decide to take action against the HOA later.
Duties and Responsibilities of the HOA in the Governing Documents
If your meeting with the HOA doesn’t resolve the problem, in order to determine the best way to get the HOA to enforce the community’s rules, you must become familiar with the duties and powers given to the HOA within the community’s governing documents.
Typically, the governing documents give the HOA the duty to enforce the restrictions, rules, covenants, and regulations in the community. The powers your HOA will have to enforce the rules, however, are harder to predict. Commonly, HOAs are given the powers to impose fines on homeowners for rule violations. The HOA might also have the power to sue members to enforce the rules.
Occasionally, however, the governing documents of a community do not give the HOA any real enforcement powers -- despite the HOA having the duty to enforce the rules! Also, some community’s governing documents make the enforcement of certain rules discretionary. The HOA might have a lot of leeway about whether, and how, it enforces a discretionary rule.
In either of these cases, it’s difficult for a homeowner to make the HOA enforce the rule or regulation. If it’s up to the discretion of your HOA to determine what colors are too bright, for example, and if the HOA decides that this rule applies only to day-glow orange and yellow, you will be hard pressed to make the HOA agree that the purple color you hate is against the regulation.
In a situation where the HOA has no enforcement powers, or the rule the homeowner desires the HOA to enforce is discretionary, a homeowner’s only option might be to try to amend the governing documents.
Amending the CC&R’s or Rules and Regulations
The procedures for amending the governing documents vary among HOAs, and are determined by the documents themselves. If the aim is to give the HOA enforcement powers, most likely an owner will need to amend the CC&Rs. This tends to be a difficult process. Many CC&Rs require a majority or unanimous consent of the members (the homeowners) for an amendment. However, if the requirements are met, the homeowner could, for example, amend the CC&Rs to give the HOA the ability to fine or sue a violating homeowner, or to enter onto a homeowner’s property to remedy a rule violation.
If the homeowner proposes to amend a rule in the Rules and Regulations (not in the CC&Rs), this process will likely be easier. For example, the Rules and Regulations might require only a vote of the board of directors of the HOA to amend them. If the relevant amendment requirements are met, the Rules and Regulations could be amended to, for example, change a discretionary rule into a mandatory one. So, in the case of the rule about bright colors, the homeowner might wish to propose an amendment to specifically prohibit painting a home any shade of purple.
Since amendment procedures can be complicated, it’s helpful for the homeowner to work with an experienced attorney to determine the steps required, and to increase the chance of a successful amendment.
Removing a Member of the Board of Directors
In some cases, the HOA might not be enforcing the community’s rules because a member of the board is not performing his or her job properly. This could happen in a variety of ways, such as if a board member refuses to enforce a rule due to a conflict of interest (perhaps if the purple house is owned by a board member who refuses to let the board enforce the rule prohibiting it), or maybe because he or she is lazy, or because he or she is corrupt and accepting bribes from a violating homeowner.
If a homeowner believes a rule is not being enforced because a member of the board of directors is acting inappropriately, the homeowner might wish to call for the board member’s removal.
The right of a homeowner to remove a member of the board of directors, and the requirements for removal are typically addressed in the community’s governing documents, and are also governed by any applicable state laws (which can vary). As with amendments, the process is rarely easy. It typically requires a vote of all the HOA members and/or a unanimous vote of the other members of the board of directors. Again, a homeowner considering this process will find the services of an experienced attorney helpful.
Legal Action Against the HOA
In certain cases, if the HOA as a whole is not performing its job, or if a nonperforming board member cannot be removed, a homeowner might be able to bring suit against the HOA. The HOA has certain obligations under both state and federal laws; it must act in the best interests of the community, must perform its duties reasonably and fairly, and may not act in a discriminatory or capricious manner.
A legal suit might be warranted if a homeowner can show that the HOA is acting in an unreasonable or discriminatory manner by not enforcing the rules; or if the HOA fails to put the community’s interests above any individual interest.
For example if the only homeowner not fined for painting his or her house purple was your neighbor, only because your neighbor is also a member of the HOA , this decision benefits only that board member and may be detrimental to the community as a whole (by lowering property values in the community). In this case, the HOA might be liable for breaching its fiduciary duty to the community.
Lawsuits against an HOA are typically costly and complicated, however, and the outcome is always uncertain. Unless the homeowner’s problem with the HOA is a major one, and the facts against the HOA are very clear, a lawsuit is often not worth the time and expense.
If you are a homeowner hoping to initiate a lawsuit against your HOA, consult with an experienced attorney in your area to assess the merits of your case, and to advise you on the best course of action.