Can the HOA stop me from using my yard the way I want to?

That yard may not be "yours" in the first place!

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Question

I live in a townhome and want to turn my yard into a rock garden. The HOA is telling me that I can’t do what I want with it. Can the HOA really stop me?

Answer

Although it might seem wrong that someone else can tell you what you can do in your own front yard, in planned developments, this is sometimes the case.

Believe it or not, you might not even really own your yard. The governing documents (which typically include a Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs), Articles of Incorporation, and Bylaws of the homeowners' association (the HOA), plus any separate rules and regulations adopted by the HOA), along with the maps and plats of the property, will likely designate certain portions of the development’s property as common areas. Common areas are areas owned in common by all the development’s home owners for the use of all the owners.

In a townhome development, the yard surrounding the townhome might be a common area, or more likely, a limited common area. Limited common areas are for the benefit of less than all the owners. For example, your yard might be a limited common area for the benefit of all the owners of your townhome (rather than all the owners in the development). By examining the plat or map for your property, you should be able to determine whether or ot your yard is a common area.

Most development’s governing documents contain rules and restrictions governing the use of common areas and limited common areas. Your development’s CC&Rs, for example, might contain a regulation prohibiting any owner from altering a limited common area.

Even if your yard is not a common area, and you own it outright, the governing documents might still contain a rule or regulation prohibiting your rock garden. To ensure uniformity and maintain standards within a development, it’s not uncommon to find a wide variety of rules and regulations in the governing documents. These rules might regulate everything from how often you must cut your grass to what you can plant on your property.

But what if you discover that you can’t use your yard the way you want due to a rule you didn’t know about (or that didn’t exist) when you bought your townhome? In short: “tough luck!”

When you buy a home in a planned development, you agree to the terms of all the development’s governing documents (whether you’ve read them or not), as well as all amendments.

If there is a regulation prohibiting your rock garden, the HOA is entitled to refuse your request regardless of your knowledge of the restriction (although one exception might be an amendment which “grandfathered” in an exception for existing owners).

Ask your HOA what rule or regulation it is relying on in issuing the decision to restrict your rock garden. The HOA should be able to provide you with a copy of the applicable restrictions. If you disagree with the HOA’s interpretation of the rules, request a meeting and explain your position. Attend the meeting prepared, with a copy of the restriction and a design of your plans. Then carefully explain (in a civil manner) why your use should be allowed.

If the rule leaves no room for interpretation, and the rock garden is important to you, you might consider trying to amend the rule. The document containing the rule will probably set forth the procedures necessary for an amendment.

Sometimes, rules and regulations that are not in the CC&Rs can be amended with the vote of all the members of the HOA's board of directors. If you can get the HOA on your side, this might not be too difficult.

If amending the rule requires a vote of all the members (all the owners in the development), getting an amendment passed is likely to be much more difficult. It will probably involve a lot of time and effort (and possibly expense) on your part. Depending on how important that rock garden is to you, it just might not be worth it.

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