If you live in a planned development, you might be sick and tired of the homeowner’s association (HOA) telling you what you can’t do. Maybe you can’t paint your house the color you’d like, can’t build the type of fencing you want, or can’t even wash your car in your driveway!
What would happen if you simply ignored the rules and regulations? For example, what if you brazenly gave your car a scrub in your driveway and put up a (gasp!) metal fence when only wood fencing was allowed? What can the HOA do?
What the HOA has the authority to do in order to enforce its rules varies, depending on the development and the state it’s located in. Its powers are set forth in the development’s bylaws as well as its Covenants, Conditions & Restrictions (CC&Rs). Additionally, any action by the HOA must also comply with any applicable state (and federal) laws.
HOA Enforcement Powers
Almost every planned development has a number of rules and regulations in its CC&Rs. Many have adopted additional rules and regulations, found in a separate document.
When someone breaks any of these rules, it’s usually the HOA that’s responsible to enforce them. Just who will take on an enforcement role and how far the HOA can go to make you comply depends also on the specific language in the development’s bylaws and CC&Rs.
Some developments give the HOA more enforcement rights than others. Among these might be the right to:
- fine any owner violating a covenant, rule, or regulation (for example, you may be assessed a fine each day you keep the metal fence up)
- enter upon an owner’s property to determine whether the owner is breaking any rules (the HOA could come onto your land to check out what your fence is made of)
- enter upon an owner’s property to remedy a rule violation (for instance, the HOA could remove your metal fence)
- suspend the rule-breaking owner’s right to use the common facilities (you may not be allowed to use the fitness room, for example, until you pay any fines and take the fence down)
- sue an owner who violates any restriction, covenant, or rule, (watch out; you could end up in a lawsuit and ultimately with a court order requiring you to take down the fence),
- hold the owner responsible for any attorneys fees or costs incurred by the HOA in enforcing a rule, (if the HOA is successful, you may be in for more than just the cost of removing the fence), and/or
- place a lien on an owner’s property (if you owe enough in fines, the HOA might be able to put a lien on your home, meaning that your title to the property won’t be clear until the debt is paid).
An HOA’s Required Procedures and Notices
The bylaws and CC&Rs commonly also include procedures the HOA must follow when taking any action to enforce the rules. For example, sometimes a violation must be discussed at an HOA board meeting before the HOA can take any action. Usually the HOA must provide written notice to an owner of any alleged violation, and allow the owner time to cure the violation, before fining or suing that person.
Regardless of the procedures required in the CC&Rs and bylaws, most HOAs realize it’s better to resolve problems with owners amicably if possible, and will not immediately jump to file a lawsuit.
In the example of your nonconforming fence, for example, you will almost certainly receive a letter from your HOA informing you that your fence is in violation of a rule, and asking you to remove it (and describing what will happen if you don’t). Also, the HOA might invite (or require) you to attend a meeting to discuss your transgression.
This is a good time to use your negotiation skills. Tell the HOA why you should be allowed to have the metal fence, or try to reach a compromise about it (maybe you can offer to paint it brown, or remove it from the front of the home but leave the rest of it up).
State Law Requirements Affecting HOA Enforcement
Even if the development’s documents do not require prior notice of a fine or lawsuit, depending on where you live, state law may require the HOA to give notice to an owner prior to filing a lawsuit. State laws may also regulate other actions of the HOA.
Since disputes between HOAs and owners relating to rules and regulations are common, many states try to keep them out of the courts. Some states, for example, may require the HOA to attempt to resolve any dispute with a homeowner through arbitration or mediation proceedings prior to any lawsuit.
State laws sometimes also deal with whether or not the HOA can place a lien on a rule-breaking owner’s home for past due fines. Some states do not allow liens for fines at all, and others do, but generally only in certain circumstances (such as when a large amount is owed).
Nearly all states’ laws require prior notification to the owner of the violation and the HOA’s intent to file a lien. Although placement of liens against an owner’s home for unpaid fines are not common (liens are more often used in the case of unpaid dues and assessments), they are sometimes used as a means of enforcement. If the HOA is successful in a lawsuit against a homeowner and has a lien against the home, it could get the right to foreclose on the owner’s home to collect the amount of fines owed.
Help for an Owner Accused of a Violation
If you break a rule and end up in a dispute with the HOA, do you have any grounds to argue? Provided the HOA is acting within its enforcement powers and has followed the correct procedures, it’s not likely.
If you feel that the HOA is singling you out, because many of your neighbors have violated a particular rule and it hasn’t been enforced in years, you should bring this up in discussions with the HOA. If you believe the HOA has not followed the required procedures, or are unsure what your rights are under your state’s laws, you may wish to contact an attorney in your area experienced in HOA matters to assist you.
Generally, however, your best bet as an owner is to follow the rules. Like them or not, that’s what you agreed to when you bought in the development. So, take down the metal fence, put up a nice wood one, and get on with your life!